Publishing Actors’ Ages

Let’s say you were concerned about age discrimination in Hollywood, where male stars seem to get roles no matter their age, while female actors — other than the peripatetic Meryl Streep — seem to have difficulty getting cast once they hit 45 or 50.  Would you:

(a) notify everyone in the film industry that you were assigning an extra investigator to specifically focus on enforcing existing laws against age discrimination in the industry;

(b) decide that current federal and state law wasn’t sufficient and therefore enact new legislation directly regulating age discrimination at the movie studios that make the films; or

(c) enact a law preventing internet sites, including specifically the IMDb website, from publishing actors’ ages and date of birth information.

Weirdly — or maybe not so weirdly — California chose option 3.  Yesterday a federal judge issued a preliminary injunction against the law, finding that “it’s difficult to imagine how AB 1687 could not violate the First Amendment” because it bars IMDb from publishing purely factual information on its website for public consumption.  And, the court found that although preventing age discrimination in Hollywood is “a compelling goal,” California did not show the new law is “necessary” to advance that goal.  The judge added:  “In fact, it’s not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all. And even if restricting publication on this one website could confer some marginal antidiscrimination benefit, there are likely more direct, more effective, and less speech-restrictive ways of achieving the same end. For example, although the government asserts generically that age discrimination continues in Hollywood despite the long-time presence of antidiscrimination laws, the government fails to explain why more vigorous enforcement of those laws would not be at least as effective at combatting age discrimination as removing birthdates from a single website.”  You can read the judge’s pointed, three-page ruling here.

This conclusion is not surprising to anyone who understands the First Amendment, and presumably didn’t come as a surprise to the lawyers trying to defend California’s law, either.  All of which begs the question of why California legislators enacted it in the first place — and that’s where the “maybe not so weirdly” comment from above comes in.  I’m sure the Hollywood community is, collectively, a big-time contributor to political campaigns on a California state level, just as it is on a national level.  If you were a politician who wanted to say that you had done something to address age discrimination in Hollywood, but without doing anything that might actually, adversely affect the rivers of cash flowing to your campaigns from the big studios, supporting a law that affects only an internet website that actors hate because it discloses how old they really are is a much safer bet.

It’s nice to know that we have federal judges who understand what the First Amendment means, even if California’s elected representatives are clueless.  And if those legislators are so concerned about age discrimination in Hollywood, maybe they’ll actually do something about it — rather than just taking steps to block speech they don’t like.

Standing For The Anthem

In our sports-obsessed culture, when a professional athlete declines to stand for the National Anthem and says it is because he is protesting race relations and police brutality, it’s news.  In this instance, Colin Kaepernick’s actions have provoked some fans to burn his San Francisco 49ers jersey and generated reactions from all points on the political spectrum.

tsjcI don’t get the jersey-burning.  Of course, under the First Amendment, Kaepernick has a right to protest and advocate for his position on important issues of the day, period.  We all do.  Although some people increasingly seem hell-bent on punishing and eventually criminalizing free speech, through speech codes and “safe zones” and other contrivances designed to protect our delicate sensibilities from unpopular views — and, of course, quash the expression of those views in the first place — every American still has a right to peacefully express their views on topics like racism.  Kaepernick’s actions aren’t unAmerican; they’re quintessentially American.

And anybody who thinks sports figures should just take their big salaries and keep their mouths shut is kidding himself, too.  Sports have been politicized for as long as I can remember, since at least the 1968 Olympics when John Carlos and Tommie Smith raised their fists and bowed their heads during the playing of the National Anthem.  And the NFL itself has become increasingly involved in public issues, with events like breast cancer awareness weeks where the players wear garish pink towels and socks.  Breast cancer is a pretty safe public issue, but it’s a public issue nevertheless.  To the extent there ever was a line between sports and the real world, that line has long since been erased and crossed.

Kaepernick’s gesture shows the power of free speech — which is why the founding fathers were so interested in protecting it.  One player sits during the National Anthem, and it provokes a firestorm. Kaepernick obviously picked the National Anthem because he knows that every sports event starts with its playing and that it is a source of pride to Americans.  Showing disrespect for the Anthem is an effective way of drawing attention to your cause, just like burning a flag was during the campus protests in the 1960s.

Of course, we can wonder whether Kaepernick will just sit during the Anthem, or will go beyond exercising his free speech rights to actually do something to promote better race relations or address police actions.  The San Francisco police have invited him to come to the police academy to open lines of communication and learn about the challenges facing the thin blue line.  I hope he accepts that invitation, and uses the interest his one-man protest has generated to increase understanding and help improve things.  Sitting is one thing, taking meaningful action is quite another.

The Trump Campaign’s Chicago Shutdown

If you’ve watched the news this weekend, you’ve seen footage of protesters clashing with security forces and Donald Trump supporters at the site of a scheduled Trump rally in Chicago.  The Trump campaign ended up canceling the event due to security concerns.

The MSNBC website has an interesting story about how a bunch of activists — some from the Bernie Sanders campaign, some from other groups like Black Lives Matter and Fearless and Undocumented — organized a massive protest against the Trump event.  According to the story, a few key factors helped the protest gel.

kiro7dotcom-template_1457743926114_3192105_ver1-0_640_360The Trump event was on the University of Illinois-Chicago campus in the heart of the Windy City, where lots of Sanders supporters and activists are found.  Progressive groups were already well organized in Chicago, because they’ve been routinely protesting against Democrat Chicago Mayor Rahm Emanuel and his police policies for months, so communications networks among groups were already established.  And Trump’s message has so alienated many people that large groups were eager to join in the protest.  The protest organizers came up with a plan, got thousands of protesters to show up and get into the Trump rally, and then when fights broke out the protesters got what their “#SHUTITDOWN” Twitter hashtag suggested — the Trump campaign pulled the plug and Trump himself never appeared.

How to react to people ripping up signs, throwing punches at political rallies, and shutting down a campaign event?  My reactions are decidedly mixed.  There’s no doubt that a lot of Donald Trump’s rhetoric is inflammatory — intentionally so — and he and his supporters shouldn’t be surprised when his strong statements provoke equally strong reactions.  If Trump wants to lash out against immigrants, or Muslims, he’s got to expect that, in some quarters at least, he’s doing to be harshly criticized as a racist and a demagogue and he’s going to encounter lots of protests against his positions and statements.

At the same time, I hate to see violence erupt and political events canceled because of security concerns.  The protesters had every right to advocate against Trump’s message, but Trump and his supporters had every right to speak, too.  One comment in the MSNBC piece was a red flag for me:  a protest organizer said, “We wanted to show Trump that this is Chicago, and we run Chicago, and we’re not going to take this.”  Some other commentators have said that Trump was to blame for the clashes because his campaign dared to schedule an event on a college campus in an urban area.  Such comments suggest — very uncomfortably, in my view — that there are “safe” areas and “unsafe” areas for campaign events to be held, depending on the political views and party affiliation of the candidate.  That’s a dangerous, precarious viewpoint in a country where the Constitution guarantees free speech for all, even if the speech is deeply offensive to many.

One other interesting point about the Chicago clashes is that the Sanders campaign seems to have tapped into a strong vein of anti-establishment feeling on the left side of the political spectrum that cuts across racial lines.  If you are disaffected — whether you are African-American, Latino, Anglo, or other — you’re going to notice that it was members of the Bernie Brigade, and not Hillary Clinton supporters, who helped put together the anti-Trump protests.  It will be interesting to see whether this development, which could seriously cut into the support Clinton expects to get from African-Americans and Latinos, changes the political calculus as big states like Illinois, Ohio, and Florida vote on Tuesday.

 

Sick Subculture

In case you missed it, there’s a trial underway in Florida in which Terry G. Bollea — better known to the world by his stage name of Hulk Hogan — is suing Gawker.com for posting a grainy, secretly recorded video on its website that purportedly shows the retired wrestler having sex with a friend’s wife.

ap_651364014819_-_h_2016Normally I wouldn’t care about a tawdry legal clash between a fringe celebrity who claims invasion of privacy and a website like Gawker.com, but yesterday I happened to read a news story about one piece of testimony in the case that stopped me in my tracks.  The testimony came when a former Gawker editor-in-chief, Albert J. Daulerio, was being questioned about what he considered newsworthy and where he drew the line when it came to posting sex videos of celebrities.

“Can you imagine a situation where a celebrity sex tape would not be newsworthy?” the lawyer asked.

“If they were a child,” Daulerio answered.

“Under what age?” the lawyer asked.

“Four,” Daulerio responded.

Gawker later said that Daulerio was being “flippant” because, you know, people are always flippant when they are being questioned by a lawyer in a legal proceeding.

Have we really come to this point?  I can’t imagine why any adult would record a sex tape, much less why anyone would want to watch it — but to suggest, even in a “flippant” way, that sex tapes of children would be newsworthy and should be posted on the internet is, in a word, sick.  Any website that would articulate such an editorial policy isn’t really a “news” website at all, but just a mechanism for feeding the voyeuristic interests of a seamy underside of American culture.

There are important legal issues to  be explored at the intersection of the internet, the First Amendment, and the privacy rights of celebrities large and small.  No doubt the Hulk Hogan lawsuit against Gawker will help to develop the law in that area, but it’s also obviously exposing something equally important about the internet — something that is small and sick and sad about our society.  Have we touched bottom yet?

The Sad State Of Freedom Of The Press On Campus

Most college campuses have student-run newspapers.  At some schools, like Ohio State with the Lantern, the newspapers are “laboratory” publications, where students receive course credit and training as they perform different positions; at other schools, the newspaper is an extracurricular activity.  But in either case, the student newspapers are, in fact, newspapers, and are protected by the First Amendment.

Unfortunately, that protection seems to be eroding.

bradley_hallThe latest example has occurred at Mount St. Mary’s University, a small school in Maryland where the newspaper is called The Mountain Echo.  Two enterprising students reported that the  school was considering a new proposal to shore up its student retention numbers, and thereby improve its U.S. News and World Report rankings, by looking to get rid of struggling freshman students.  An even bigger scoop was that the University president, Simon Newman, was quoted as using a bizarre and disturbing metaphor to try to convince a professor about the merit of the program.  Newman was quoted as saying:  “This is hard for you because you think of the students as cuddly bunnies, but you can’t.  You just have to drown the bunnies,” and later stating: “Put a Glock to their heads.”

By all accounts, the story was good, solid reporting, with the quotes attributed to the University president confirmed by two professors who witnessed the conversation.  And the University president doesn’t seem to be denying that he said what he was quoted as saying — he apologized for his choice of words and explained that he was just trying to help struggling students at risk of failing avoid racking up a lot of student loan debt.

So how did Mount St. Mary’s respond to the blockbuster story in The Mountain Echo?  Amazingly, by firing the newspaper’s faculty adviser, Ed Egan.  The chairman of the school’s board suggested Egan had manipulated the student reporters into presenting the retention program negatively — a charge the student reporters themselves deny — and that he should have framed the story to focus more on the merits of the retention proposal than on the University president’s stupid comments about drowning bunnies.

The students on the newspaper were appalled that Egan was fired.  Ryan Golden, the managing editor of the paper and one of the two students to break the story, was quoted as saying:  “He’s really a good mentor for a lot of students at this school. He absolutely encouraged us to pursue journalistic integrity, absolutely encouraged us to be ethical, to be fair, to be thorough, to be objective and to do the best work that we could.”  Mr. Egan sounds like Tom Wilson, who was the faculty adviser of the Ohio State Lantern when I worked there in the ’70s.  Mr. Wilson was an old school newspaperman who cared only about the story — and let the chips fall where they may.  He was a great teacher.

Things have changed a lot on college campuses since the ’70s, and in some ways not for the better.  Many colleges seem to have become hotbeds of political correctness, where freedom of speech and freedom of the press are under assault on a daily basis.  In any rational universe, students who broke a story about a college president’s weird and ill-advised comparison of struggling students to bunnies that need to be drowned would be congratulated for exposing that fact, and the president would face the music for saying something so ridiculously stupid.  Instead, in our world, the newspaper faculty adviser gets terminated, and a chilling, anti-free speech and anti-free press message gets sent.

On too many college campuses these days, we are just heading in the wrong direction.

Off Kilter On Campus

College campuses have always been curious enclaves, removed from the hurly-burly of normal life.  The concentration of young students, fresh from the restraints of their childhood homes, exposed to new ideas and groups and exercising their personal freedoms for the first time, makes for a kind of hot-house atmosphere where superheated emotions and actions can come to seem almost normal.

That’s a big part of the reason why colleges are such a fertile ground for protests.  It’s been that way since at least the ’60s.  The reasons for the protests can change — when I was in college in the late ’70s, after the Vietnam War had ended and the economy was in the dumper, some students worried about their job prospects were actually agitating to let the CIA back on campus to recruit students — but the fact of protests is almost an assumed part of the college experience.  If you’re not going to protest in college, you probably won’t protest anything, ever.

So I’m not worried about the existence of protests at colleges.  Nor does it concern me if college presidents decide to resign in the face of protests, as happened at the University of Missouri.  I obviously don’t know the full back story of what’s been happening at Mizzou, but I doubt that a little unrest, standing alone, would be sufficient to topple a university president.  If it was, the president probably wasn’t that suited to serve as the ultimate decision-maker in such a stilted environment.

f8ede305-f224-42bc-82a1-7df2166210f7_cx0_cy5_cw0_mw1024_s_n_r1What bothers me, though, is that the recent incidents at campuses like Missouri and Dartmouth indicate that students don’t really seem to understand the full range of freedoms that we are entitled to exercise in America.  In a well-publicized incident at the University of Missouri, students congregating in a public space prevented a journalist from taking photos and exercising his indisputable First Amendment rights to do so.  (Even worse, the student actions were apparently supported by an assistant professor of mass media studies, who obviously should know better.)  More recently, at Dartmouth, a Black Lives Matter demonstration saw protesters entering private study spaces, disrupting, physically harassing, and shouting obscenities at students who were studying for exams rather than joining in the protest.

These incidents, and others, make you wonder what students are being taught on college campuses these days.  If an assistant professor of mass media studies doesn’t understand how the First Amendment works, then perhaps it’s not the students’ fault, and college administrators need to do a better job of hiring instructors.  It also makes you wonder about how media-savvy the current crop of student protestors are, too.  The old-line protestors of the ’60s craved every bit of media attention because they understood it would help their cause; they would no more have tried to block a photographer than they would have listened to Guy Lombardo and his Royal Canadians in their dorm rooms.  Were the Mizzou students afraid that Mom and Dad might see that they were out on the quad, camping in tents?

The key point of it all is understanding of, and tolerance for, the rights of others.  We tolerate student protests for various causes because they have the right to assemble and advocate for whatever changes they wish.  But journalists have the right to cover those protests and take photographs without being blocked, pushed, or harassed, and students who exercise their rights not to join the protests of others have the right to make that decision without being pressured or verbally or physically intimidated.

Some people are calling today’s college students pampered crybabies.  That may be true, but it’s only true in the sense that it has always been true for the last 50 years, where college campuses have increasingly become a kind of zone of alternate reality.  (Visit a college campus and look at the recreational and social facilities that colleges are building to attract students, and you’ll see lots of tangible evidence that inevitably will lead students to think they’re special.)  The real problem isn’t pampering, it’s education — and the protestors ultimately will learn a very hard lesson when they leave the rarified land of ivory towers and encounter the hard realities of a world in which others aren’t going to hesitate to enforce their rights.  The first college agitator who thinks he can stage a sit-down strike to force his unpleasant boss into quitting, or bully his co-workers into supporting his approach to workplace politics, is going to find himself with a pink slip and an abrupt career change.

It would be better for the students and their future lives and careers if they learned that lesson while still on campus.

The First Amendment, Revisited

The Supreme Court’s recent decision in McCutcheon v. Federal Election Commission has provoked a lot of critical comment. Much of the criticism has been directed at the majority opinion, which struck down aggregate limits restricting how much money a donor may contribute to candidates for federal office, political parties, and political action committees.

In McCutcheon, the Court held, by a 5-4 vote, that the limits violate the First Amendment and rejected arguments that the limits could be justified by a governmental interest in preventing either political corruption or the appearance of such corruption. Critics argue that the decision will lead to a political process dominated by wealthy oligarchs who shovel money to their preferred candidates and causes and thereby control American public policy. That’s the position of Senate Majority Leader Harry Reid, for example.

The dissenting opinion in McCutcheon is at least as interesting as the majority ruling, however. In the dissent, Justice Stephen Breyer, joined by three other Justices, articulated a concept of “collective speech” and asserted that “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” It’s not entirely clear what Justice Breyer means by “collective speech,” but he obviously believes that the interest in “collective speech” can override individual First Amendment expression.

Over the years, the meaning and scope of the First Amendment has been shaped by a series of Supreme Court decisions. The jurisprudence has long since moved past the concept that “speech” is limited to the spoken or written word; it is well established that acts — like burning a draft card or wearing a protest t-shirt — are protected. Contributing money to a political candidate whom you agree with, or to a cause that you support, is similarly a protected act of speech.

Will McCutcheon open a new frontier in the evolution of the First Amendment, and if so should we be more concerned about the concepts underlying the majority opinion or the dissent? Floyd Abrams, a lion of the First Amendment bar who has been involved in many cases addressing free speech issues, has posted an interesting article that argues that the conceptual underpinnings of the dissent are “deeply disquieting.” Abrams notes that the concept of protecting “collective speech” seems to be inconsistent with prior Supreme Court decisions and is a slippery notion that could allow the government to restrict the amount of speech about which candidate or cause to support — a result that seems inconsistent with the First Amendment rather than in furtherance of it.

The First Amendment is the first item in the Bill of Rights. That context indicates that it is intended to protect individual rights, not “collective speech.” When a First Amendment issue arises, I tend to support the notion of more speech rather than less — with the decisions about what to say, and when, left to individuals, not to the government or to some vague notion of what furthers the “collective” good.