Category Archives: Free Speech

“No Brainer” Trump…

Several media outlets have reported on Trump’s enthusiastic embrace of a measure to outlaw flag burning. Congresscritters repeatedly introduce these bills, despite the fact that the Supreme Court ruled years ago that flag burning is protected under the First Amendment.

Ed Brayton commented on Trump’s history with the issue.

During the 2016 campaign, Trump said that anyone who burns an American flag — you know, all four of them in the entire country over the last few decades– should be stripped of their citizenship and be put in jail. Now two Republicans have proposed yet another bill to make flag burning illegal and he’s endorsing it on — where else — Twitter:

All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!

Coincidentally, No Brainer is the Secret Service’s code name for him.

You would think that an administration’s Press Secretary would try to intercede to protect freedom of expression, since all media–even rightwing outlets–rely on First Amendment protections to do their jobs. But of course, this is the Trump Administration, which has hired spectacularly dishonest specimens to fill that post. (My favorite description of departing Sarah Huckabee Sanders was penned by Bret Stephens of the New York Times, who wrote that Sanders “combined the sincerity of Elmer Gantry with the moral outlook of Raskolnikov.”)

Since no one currently serving in this administration seems to “get it,” let me see if I can explain the way free speech jurisprudence works in language that thinking people  (a category that rather clearly excludes the current occupant of the White House) can understand.

The Free Speech clause of the First Amendment protects the exchange of ideas against government censorship. All ideas. Even awful ideas. Ideas that piss people off. Government doesn’t get to decide which ideas get transmitted, period. (Your mother, on the other hand, can censor you. So can your boss. The Bill of Rights only restrains government.)

Government can prohibit actions for a whole host of reasons, but it cannot pick and choose among messages. If there is an ordinance banning outdoor burning in dry weather, for example, or laws criminalizing the theft of a flag belonging to someone else, people violating those laws can be punished, because those measures don’t implicate an exchange of ideas. They are what lawyers call “content neutral.”

The rules are different for actions we call “symbolic speech.” These are actions that are clearly intended to communicate ideas. A silent march by Neo-Nazis–or any group of activists– doesn’t require verbal expression to send its message. We get it.

Flag burning offends us precisely because it sends an unmistakable message of disrespect for the country.

Brayton illuminated another common misunderstanding of what the First Amendment  does and does not protect, in a post about a Tennessee police officer who had advocated killing gay people.

Grayson Fritts, the Tennessee sheriff’s deputy/pastor who gave a sermon calling for LGBT people to be put to death, has been given a buyout and allowed to resign rather than be fired. And his boss says that’s because firing him would violate his First Amendment rights. I’m virtually a free speech absolutist, and I can say without hesitation that he is totally wrong….

If he was just a preacher who said that, I’d excoriate him for it but still support his constitutional right to say it. But as a government employee whose job is to administer justice fairly and equally, it’s a clear violation of his oath of office to think that some of the people he is charged with protecting and serving should be murdered by the state because he doesn’t approve of them. There is no free speech issue there.

A zoning administrator handing out religious tracts on the job is violating the terms of her employment, and a President trying to stifle views with which he disagrees is violating the terms of his. Free speech jurisprudence doesn’t protect them.

When elected officials–from the President on down–are abysmally ignorant of the constitution they swear to uphold, we’re in a world of hurt.

Free Speech For The “Right” Ideas

Pun in the title intended.

Michelle Goldberg recently focused her column in the New York Times on yet another inexcusable decision of the Trump Administration. (I know, there are several every day…)

The Palestinian activist Omar Barghouti, one of the founders of the boycott, divestment and sanctions movement, was supposed to be on a speaking tour of the United States this week, with stops at N.Y.U.’s Washington campus and at Harvard. He was going to attend his daughter’s wedding in Texas. I had plans to interview him for “The Argument,” the debate podcast that I co-host, about B.D.S., the controversial campaign to make Israel pay an economic and cultural price for its treatment of the Palestinians.

Yet when Barghouti, a permanent resident of Israel, showed up for his flight from Israel’s Ben Gurion International Airport last week, he was informed that the United States was denying him entry. When I spoke to him on Sunday, he still didn’t know exactly why the country where he went to college and lived for many years wasn’t letting him in, but he assumed it was because of his political views. If that’s the case, Barghouti said, it was the first time someone has been barred from America for B.D.S. advocacy.

I believe it was Alexander Meiklejohn who said a nation afraid of ideas is unfit for self-government. He was right.

The efforts of right-wingers to shut down B.D.S. by passing laws that obviously violate the First Amendment’s Free Speech guarantee are especially ironic given their hysteria over the supposed censorship of rightwing speech on the nation’s campuses. (But then, self-awareness has never been a characteristic of the Right.)

Several states have evidently passed laws penalizing, B.D.S. activities, and the Senate recently passed a bill supporting those measures.

According to the American Association of University Professors, some public universities in states with such laws require speakers and other contractors to “sign a statement pledging that they do not now, nor will they in the future, endorse B.D.S.” It’s hard to think of comparable speech restrictions on any other subject.

What makes this effort particularly offensive is that the B.D.S. movement neither engages in nor promotes violence. As Goldberg notes, Its leaders have made a genuine effort to separate anti-Zionism from anti-Semitism–in fact, the Palestinian B.D.S. National Committee demanded that a Moroccan group stop using the term “B.D.S.” in its name because it featured anti-Semitic cartoons on its Facebook page.

An administration unwilling to sanction Saudi Arabia for multiple murders, including the murder of a Washington Post journalist, is willing to penalize people who are advocating a nonviolent economic boycott.

Goldberg’s column goes on to consider why Israel’s defenders consider the B.D.S. movement so threatening, and that part of her column is enlightening but ultimately beside the point. It doesn’t matter whether you applaud or detest B.D.S. If it doesn’t have the right to advocate for its beliefs, neither do those who disagree with those beliefs. Rights–unlike privileges– are indivisible, as a federal court recently affirmed when it struck down the Texas version of these efforts.

Free speech, as Justice Holmes memorably wrote, requires freedom for the idea we hate.

Can ideas be dangerous? Of course. And the nation’s Founders knew that. They also knew that allowing the government to decide which ideas can be communicated and which cannot would be far more dangerous.

 

 

Assange And The First Amendment: It’s Complicated

Let’s quickly review the relevant rules.

As most Americans know, the First Amendment protects free speech and freedom of the press. That freedom is not absolute: you cannot falsely cry fire in a crowded theater, nor blithely libel someone you don’t like, nor spill trade secrets in contravention of an agreement not to do so. Members of the press who report damaging, untrue information about public figures with “willful disregard” for its accuracy can be held accountable.

In most cases, the persons harmed by such improper behaviors can sue only after the fact. Our legal system has a strong bias against prior restraint–against enjoining publication in the first place. (That bias goes back to the era when England required publishers to obtain government permission before printing anything.) But even that strong presumption against prior restraint can be overcome in extraordinary circumstances–someone proposing to identify American spies abroad, or to disclose upcoming troop movements in wartime could certainly be kept from doing so.

It is probably impossible to overstate the importance of journalism to democracy–as one masthead puts it, democracy dies in darkness. Autocrats routinely take control of the media. That’s why Trump’s constant attacks on the press are so worrisome–and so unAmerican. Those attacks are probably one reason that the arrest of Julian Assange has raised such an outcry.

How does this apply to what we know thus far about Wikileaks and Julian Assange?

Assange’s Wikileaks published illegally procured classified information. Under First Amendment law as I understand it, his publication of that information is protected.

Engaging in criminal activity to acquire the information, however, is not. And that is what the government–so far–is alleging.

Typically, a whistleblower or other source of illegally obtained material is the one breaking the law; a journalist is not a lawbreaker simply because he or she received it. Here, it is alleged that Assange materially assisted Chelsea Manning in the hacking through which they acquired the information. If the government has persuasive evidence that Assange played an active role in the hacking, his conviction for that behavior would not implicate press freedom.

If there is no probative evidence that Assange broke the law in obtaining the information, or if the government expands its charges to include publication, analysis of the situation changes.  Journalists who have expressed First Amendment concerns are also worried about a “slippery slope”–especially since Assange is such an easily detested and unsympathetic figure, his case could conceivably set an unfortunate precedent. So long as the government prosecutes him only for illegal hacking, however, I think the First Amendment is safe.

This episode comes at a time when the First Amendment is under pressure from the craziness on the Internet, from conspiracy theories promulgated by provocateurs like Alex Jones, and from propaganda mills like Fox News. It’s really tempting to argue that some speech, some “news,” falls within the category of falsely shouting fire in a crowded theater. Efforts to ensure that news sources are truthful and fair, however, present us with the same dilemma that faced the nation’s Founders: who gets to decide?

Is freedom of expression dangerous? Yes. The First Amendment enables hate radio, protects propaganda and the spread of deliberate misinformation, and makes it difficult for even conscientious citizens to separate truth from fiction. But the Founders concluded that the alternative– giving government the authority to decide what information we see– would be even more dangerous.

Unless some genius can devise a way to keep information honest without empowering government censorship, slimy characters like Julian Assange will cynically market their activities as First Amendment expression. Chalk it up to the cost of protecting liberty.

 

 

This Is Very Good News

It’s hard these days not to focus on what’s stupid, corrupt and/or depressing. In fact, I find it hard to avoid news that gives me heartburn.

Nevertheless, there are also nuggets of hopefulness available, as I was reminded when I came across this announcement from the Knight Foundation.

MIAMI—Feb. 19, 2019—The John S. and James L. Knight Foundation today announced that it would double its investment in strengthening journalism to $300 million over five years, with a focus on building the future of local news and information, which are essential for democracy to function.

Knight called on individual and institutional funders to join in this opportunity to rebuild trust and foster sustainability in journalism, an essential democratic institution, starting on the local level.

Knight’s initial investments are in scalable organizations committed to serving communities at the local level — all of which are seeking additional support. These organizations are building new business models, strengthening investigative reporting, protecting press freedom, promoting news literacy, and connecting with audiences through civic engagement and technology.

Regular readers of this blog are familiar with–and probably tired of–my frequent complaints about the demise of local journalism (just this week, we learned that Indianapolis’ alternative newspaper is also ceasing publication), and the negative effects that the void of local coverage has had on local government.

The causes and consequences of the collapse are not a mystery; and the Knight announcement spelled them out.

Newsrooms across the nation have been decimated by the collapse of traditional business models brought on by the impact of digital technology and social media, which have drawn readers and advertisers to other information sources on the internet. As a result, many communities have turned into news deserts, with little or no local reporting.

“Without revenue, you can’t pay reporters. Without reporters, you can’t develop consistently reliable news reports about what’s happening in your town. Without that reliable news report, you can’t figure out how to run local government. It isn’t rocket science,” said Alberto Ibargüen, Knight Foundation president. “We’re not funding one-offs. We’re helping to rebuild a local news ecosystem, reliable and sustainable, and we’re doing it in a way that anyone who cares can participate.”

The Knight Foundation was created and funded by a once-vibrant news organization, and this initiative will seek new ways–collaborative, digital, and local–to reinvigorate journalism at the community level. The grants will support several national organizations that serve as important resources for local efforts, including the American Journalism Project, Pro-Publica, Report for America and FrontlinePBS; it will also provide resources for defense of the First Amendment, tripling the number of lawyers working on local First Amendment issues and expanding the network of local attorneys available to provide pro bono legal support.

Equally important–and welcome–is the funding allocated to important efforts to bolster what we now call “news literacy,” the battle against disinformation and propaganda.

And finally,

Knight is investing an additional $35 million in research to support the creation and expansion of research centers around the United States. This research will study the changing nature of an informed society in America and will help build an emerging field of study to address pressing questions about the health of an informed society and citizenry in the digital age.

Citizens can only act on the basis of what they know. An absence of credible information–or worse, its displacement by dishonest or manufactured information–makes democratic self-government impossible.

Democratic participation requires accurate and complete information.  I can think of very few initiatives more important than this one.

An Excellent Example

Ever since my days as Executive Director of Indiana’s ACLU, I have tried to explain the philosophy behind the First Amendment to well-meaning citizens who simply wanted to shut down those people spreading “bad” ideas, or later, to students who couldn’t understand why people they found hateful (many of whom were, indeed, hateful) were being allowed to peddle their bigotry.

I still remember a hearing held by a City-County Council committee “investigating” the Marion County Library because it allowed minors to access books that the chair of the committee considered inappropriate. (She wasn’t mollified by the fact that the library honored the directives of parents who didn’t want their kids to access certain materials. She explained that a lot of parents weren’t–in her eyes, at least–good parents who would avail themselves of the opportunity to censor their children.)

I don’t know how often I’ve tried to explain that the Bill of Rights–and especially the First Amendment–answers the question “who decides?” The Bill of Rights is a list of things that  government doesn’t get to decide.

I just read one of the very best explanations of that simple rule that I’ve come across. It was written by Wally Paynter, Executive Director of the Tri-State Alliance, in response to folks who want the Evansville Public Library to discontinue its “Drag Queen Story Hour.”

A few quotes:

Some members of the community are trying to limit what library programs are available to the public. It is similar to banning books. As an EVPL patron, I have a choice of what books I read and what programs I attend. However, it is not my right to decide what books other patrons are allowed to read and what programs others are allowed to attend….

Some Christians oppose Santa Claus, stating it takes away from the reason for the season. My pastor does Santa Claus Story Hour at the EVPL locations. Those who oppose the character Santa Claus do not try to stop other parents from bringing their kids to the event. They just don’t take their kids.

The same is true for Halloween. Some Christians oppose the celebration of Halloween. But do we end Halloween events at EVPL, or do we let parents choose what programs to take their kids to?

The letter also calls out the homophobia being expressed during this debate, a reminder that it is all too often marginalized people who are censored. But the most powerful point being made is reflected in the quoted paragraphs: our Constitution protects individual autonomy–the right of each of us to form our own moral, religious and political opinions, to determine what is important in our lives (what philosophers call our telos) and to choose how to live those lives.

So long as we do not harm the person or property of others, and so long as we are willing to respect the same rights for others, we are free to “do our own thing.”

Don’t like that magazine? Don’t read it. Don’t approve of that play? Don’t see it. Think that book is scandalous? Don’t buy it. Don’t approve of drag queens reading books to kids at the library story hour? Don’t take your kids.

In our system, you have the right to decide what you will read, attend and believe. But as Wally Paynter points out, you don’t have the right to decide what other people will read, attend and/or believe.

Live and let live is evidently really hard for some people.