First Amendment Lessons

The Supreme Court issued an interesting First Amendment decision yesterday that is worthy of note on multiple levels–both for the important lessons it teaches about our modern social media society, and also for what it says about the boundaries of what public officials and school administrators can and cannot do, under the First Amendment, when somebody says something that they really don’t like. You can read the Supreme Court opinion here.

The facts are straightforward. A high school freshman tried out for the school cheerleading squad. She didn’t make varsity, but was offered a spot on the junior varsity. She was disappointed and angry about the decision, particularly since another freshman made the varsity squad and–like so many teenagers (and adults) these days–she took to social media to vent her apparently considerable frustrations. She took a picture, at a location off school grounds, that showed her and a friend with middle fingers raised and a caption with the Queen Mother Of Curses used in connection with the school and the cheer squad, and sent it to her 250 Snapchat “friends”–which included some other students who were members of the cheer squad. They took pictures to preserve the Snapchat post, which then was shared with other students, the cheerleading coach, and eventually the school administration.

And there’s the lesson in today’s social media-saturated world: don’t post or share something that you wouldn’t want to be circulated to everyone in town or printed on the front page of the newspaper. If our kids were still in school, I’d have them read this decision about an ill-advised social media effort that had immediate consequences and eventually ended up in the United States Supreme Court, and suggest that they think about the disappointed cheer squad applicant the next time they wanted to send an edgy, racy, or profanity-laced tweet, Snapchat, or other social media posting. And adults, including me, would benefit by reading it, too, as a useful reminder about how intemperate language launched in the heat of the moment can have lasting, and unwanted, ramifications.

In this case, the student apologized for the vulgar photo and crude language, but the school administration found that she had violated team and school rules by using a profanity in connection with a school extracurricular activity, and she was suspended from the cheer squad for a year. The student and her parents sued, claiming that the school’s disciplinary action violated the right to freedom of speech under the First Amendment. The Supreme Court ruled, in an 8-1 decision, that it did.

The Court’s decision is not a license for students to flash the middle finger at teachers during class or cuss out the assistant principal in the school hallways. The Court noted that while students aren’t stripped of their First Amendment rights when they go to school, reasonable adjustments to freedom of expression must be recognized to accommodate the special school environment. A key fact in this case was that the photo was taken off school grounds, but even that fact is not dispositive; the Court recognized that, in certain circumstances, schools can still properly regulate speech and conduct off-campus–such as in dealing with bullying or responding to physical threats against teachers. On the other hand, certain kinds of speech, such as the expression of religious and political views, will merit special protection against disciplinary action. And, because circumstances can change, the Court declined to articulate a broad rule about which off-campus speech and conduct scenarios can be regulated by schools, and which cannot. Those contours will have to be established by later cases and their specific factual circumstances.

Interestingly, the Court also cautioned school districts about understanding their role in making sure that students–and school administrators themselves–truly understand what the First Amendment is all about. The majority opinion states, in language that those of us who believe strongly in the value of free speech will applaud:

“Our representative democracy only works if we protect the “marketplace of ideas.” This
free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.’”

In applying these concepts to the would-be cheerleader’s Snapchat post, the Justices concluded that, vulgarity aside, the student was simply criticizing the school and the cheer squad coaches–and protecting our ability to criticize our public officials is one of the core purposes of the First Amendment. She spoke off-campus, used a private communications mechanism, and didn’t target the school or any teachers or coaches by name, all factors that weighed in favor of First Amendment protection. Her right to criticize outweighed the school’s professed interests in promoting good manners among its students, in avoiding potential significant disruption of school activities (the Court noted there was no evidence of disruption caused by the Snapchat), and in protecting the morale of the cheer squad members.

The Court concluded: “It might be tempting to dismiss [the student’s] words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary.” Those are thoughts that I wholeheartedly agree with, and I hope that others–from public officials to the people who are readily offended by opinions they don’t agree with–also take that lesson to heart.

But what of the student whose ill-considered Snapchat started this kerfuffle and produced the Supreme Court’s ringing reaffirmance of the importance of the First Amendment? I bet, deep down, she wishes she had never sent that stupid, angry Snapchat in the first place.

Some Independence Day Thoughts

It’s Independence Day.  As we recognize our oldest national holiday, dating back to before the country was even formally founded, no doubt many people are thinking that these are strange, difficult times, and are wondering just what the future may bring.  We’ve experienced significant protests across the country — with “Black Lives Matter” signs being seen even on a small road in this remote corner of Maine — and in this presidential election year political passions are running high.  

The spirit of unbridled protest has always run deep in this land.  We’ve fought two civil wars in an effort to define and structure concepts of liberty and freedom, and we’ve experienced other periods where the vein of protest pulsed strongly.  The country has seen the mass civil rights marches and Vietnam War protests of the ’60s, the women’s suffrage movement, the Prohibition and anti-Prohibition movements, and the organized labor movements in the late 1800s — and that’s just scratching the surface.  Each of these protests has changed the country in some meaningful way, and there is no doubt that the current protests will, too.  The spirit of protest is so important to this country that we have codified our right to protest in the very first provision of the Bill of Rights and specifically stripped Congress of the ability to make any law “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  People who wring their hands about protests simply don’t understand our history, or our institutions.  In reality, protest is as American as apple pie.  

We often think of the “Founding Fathers” as gentlemen with powdered hair in fancy dress who secured freedom just by signing the Declaration of Independence — the execution of which gives rise to the holiday that we celebrate today.  From our vantage point, more than 240 years later, we tend to forget that country’s first civil war, which we now know as the Revolutionary War, was a harsh, bloody fight that occurred in a bitterly divided land — and the Founding Fathers in their silk stockings were the rebels. 

Courtesy of a present from Richard, I’m reading an excellent book about the first part of the revolutionary period by Rick Atkinson, called The British Are Coming.  One passage had particular resonance with me, in view of the period we are currently living through:

“John Adams, never taciturn, later would be quoted as saying, ‘I would have hanged my own brother had he taken part with our enemy in the contest.’

“Few were hanged, at least not yet; incivility rarely turned to bestiality.  But no one could say how brutal the war would become.  Conformity, censorship, and zealotry now flourished.  Even small sins, such as ‘speaking diminutively of the country congress,’ might be punished with forced public apologies, boycotts, ostracism, or property confiscation.  A mild word of praise for the British government–or simply being suspected of thinking loyal thoughts–could provoke a beating.  Militias served as a political constabulary, bolstered by the Continental Army.  When Queens County, a loyalist stronghold on Long Island, voted 788 to 221 against sending representatives to the provincial congress, the names of those in the majority were published in the newspaper; they were forbidden to travel, hire a lawyer, or practice a trade.  More than a thousand militiamen and Continentals then swept through Queens, arresting opposition leaders, seizing weapons and extracting allegiance oaths–except from the 250 obdurate men who fled into the swamps to await General Howe’s arrival.

Such measures spread.”

In short, there is nothing new under the sun, and we’ve been through these kinds of challenging periods–in fact, much more challenging periods–before.  Reading accurate histories of America would provide reassurance on that point.  Unfortunately, airbrushing history has also been a tradition in this country.  How many of us who went through the American school system were taught of the horrendous Tulsa, Oklahoma race massacre of 1921, or of lynchings, or the role of the Ku Klux Klan in subjugating African Americans — or for that matter the egregious history of lies, broken promises and mistreatment of indigenous Americans, Chinese immigrants, or other ethnic groups, or the Japanese internment camps that were created during World War II?  Those terrible racist episodes are as much a part of American history, and our ability to gain a true and complete understanding of our country, as the lofty pronouncements in the Declaration of Independence, the Bill of Rights, and the Emancipation Proclamation.  Those of us who were taught that America’s history is an unbroken story of freedom, liberty, and fairness in service to the world were not told the whole story.  We deserved the truth, but we didn’t get it.

I hope that that will be one of the positive impacts of these current protests.  We can only fully grasp the meaning and complexity of American history, and the true importance of crucial historical figures, if we take an unvarnished view of their lives and understand their faults, flaws, and failings as well as their successes.  I hope that the exercise of First Amendment freedoms that we are seeing in these protests ensures that American history is never sanitized again and the full story — good, bad, and ugly — is told from here on out.

The exercise of our freedoms is something worth celebrating.  Happy Fourth of July, everyone!  

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.

I 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.

The 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.

Normally 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.

The 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.

What 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.

Freedom To Photograph

A settlement in Baltimore may clear the way for citizens to more freely exercise one of their First Amendment rights — in this case, their right to take photographs.

The Baltimore case arose from an increasingly common incident. The police were making an arrest, and a citizen was recording the events on his cell phone. A police officer told him to turn off the cell phone camera, claiming it was illegal to make such a recording. It isn’t, but the officers then took the citizen’s cell phone and deleted his recordings — including some personal recordings. He sued, and ultimately the City of Baltimore decided to settle. Part of the settlement is the establishment of new rules and policies governing the behavior of police officers who are being recorded by video. The general rule of thumb in the new policy is that, if a citizen is in a place where they have a right to be, they can take photographs and make recordings — and police officers can’t interfere, intimidate, or confiscate the cameras.

Police officers have been skittish about being photographed since the videotape of police officers beating Rodney King sparked riots. All too often, their response has been to attempt to bully the people taking the photographs, even when those people are acting lawfully and aren’t interfering with police activities. If the Baltimore settlement causes other governmental entities to adopt similar codes of conduct, it would be a great step forward.

Our cell phone cameras are a powerful tool to protect the population against police misconduct — and, for that matter, against other forms of improper governmental actions as well. Once police officers and other public employees realize that their activities may be recorded and then posted to YouTube or some other website, they may temper their excesses and take extra care to make sure that their conduct conforms to law and departmental policy. That’s a good thing for everyone, police included.

The Putin Piece

Several Webner House readers and friends have asked me what I think of the op-ed piece from Vladimir Putin that was published in the New York Times.  If you haven’t read it, it’s here.  I’ve got several reactions to it.

First, I’m amazed that some people are questioning the decision of the Times to run the piece at all.  As a fan of the First Amendment, I firmly believe that more speech is better than less.  I’m glad the Times ran the piece, because it did what free speech advocates expect — it provoked lots of comment.  The Washington Post, for example, ran a response that annotated and “fact-checked” the Putin piece.  In my view, all of the discussion — about the role of the Russians, what American policy is and should be, and is the piece a pure propaganda effort — is a very good thing.  The more people become aware of competing views, the better.

Second, I think the piece was a carefully crafted bit of propaganda from a foreign leader who is following his own agenda.  So what?  There is still value in being exposed to the views of other actors on the world stage.  I’m also not troubled by the criticism of American policy.  We’re big boys, and we — and our leaders — should be hardened to the rough and tumble of a world where others are pursuing different agendas.  If there are members of the Obama Administration who are feeling bruised by the criticisms of Vladimir Putin, they really need to get over it.

Finally, although I agree with Putin’s notion of America working within the framework of international law and international organizations to resolve the Syrian crisis, I completely disagree with one of his broader points.  He thinks its dangerous that many Americans view our country as exceptional, I think exactly the opposite.  Most of our ancestors came to America precisely because they believed it was exceptional — and it was, and is, exceptional.  It is the place where Old World class, religious, and ethnic divisions are shed and where freedom allows people to advance and prosper no matter what village they come from or what religious faith they follow. The opportunity and freedom found in America is not found in Putin’s Russia or countless other countries.

Sorry, Vlad!  You’re wrong about America.  We are exceptional, and the world is a better place for our exceptionalism.  In the gush of reaction to the Putin piece, I’m hoping that many Americans — including President Obama — focus on that reality as well.

Google Scholarship

Recently a friend extolled the virtues of the Google Scholar database search tool.  Among other useful functions, he said, if you’ve ever written any kind of scholarly article you can find out how often it has been cited and whether it has been the subject of favorable comment.

Really, I thought?  That’s interesting.  It so happens that, back in the Stone Age when I was in law school, I wrote two articles that were published in the Georgetown Law Journal.  One addressed how to distinguish between statements of fact and opinions in evaluating the protection they received under the First Amendment.  The other considered President Reagan’s use of the “pocket veto” and suggested a framework for analysis of the intersession pocket veto from a balance of powers standpoint.

Boy, just describing the subjects of those two articles is pretty riveting, isn’t it?  With such fascinating topics, you’d expect those two articles, written in the leaden prose of law journals everywhere, to be high on everyone’s reading list.

So I couldn’t resist doing the Google Scholar searches.  I’m disappointed to report that, in the 30 years (!) since the First Amendment article was published, it has been cited all of 13 times.  Of course, I rationalized, the fact that the Supreme Court clarified the law within a few years of the publication of my well-reasoned piece probably cut down on the number of citations.  Unfortunately, the other piece has been even more roundly ignored:  it’s been cited only twice since it burst like a dung bomb upon the world of legal scholarship in 1984.

It’s embarrassing, I suppose . . . but then I suspect that most law journals articles are forgotten as soon as they are published.  It’s nice to know that my two forays into scholarship also have been consigned to the ash heap of academic literature and are simply gathering dust in the stacks of law school libraries across the land.

Bloggers And The First Amendment

Senator Lindsey Graham — who seems to be quoted about every topic under the sun — misspoke earlier this week.  In discussing a “shield law ” that Congress is considering in the wake of the Department of Justice’s aggressive pursuit of journalist email and other news-gathering information, Graham asked whether “any blogger out there saying anything” deserves First Amendment protection.  He later corrected himself and said that every blogger enjoys freedom of speech.

Of course, that’s right.  Every American enjoys freedom of speech protected by the First Amendment, and there isn’t any exclusion for bloggers.  Graham’s misstep, though, is one of those instances where a politician’s statement reveals a deeper truth about their actual beliefs.  Graham is an old-line politician who is struggling with the modern world, where the traditional daily newspapers and nightly network broadcasts that he grew up with are fighting a losing battle to hold on to an audience, and any person with a computer and a camera can contribute to the national dialogue about issues and events.  At the root of his comments are these core questions:  how do we deal with these new guys, and who are they, really?

Bloggers must be a pain for politicians.  The traditional methods of controlling the media — having a press secretary who interacts with those pesky reporters and answers their questions, wining and dining the big-time reporters and throwing them a scoop now and then to stay on their good side — just don’t work with bloggers.  There are too many of them, and they don’t go to press conferences or call press secretaries for comments.  They tend to be out in the real world, reacting to what politicians are actually saying, observing the politician actually interacting with the citizenry, and (often) reading the bills and committee reports to try to understand what the politicians are actually doing.  The teeming mass of bloggers makes political manipulation of the press a lot harder.

That doesn’t mean that bloggers are any better or purer than traditional reporters — just different.  Most bloggers come at the issues from a clear ideological bent, and their stuff should be read and weighed with that reality in mind.  Their postings aren’t edited by professionals or subjected to the fact-checking and publication standards that exist at good daily newspapers.  But there is no denying that bloggers — awkward stepchildren of the modern world that they are — have made, and increasingly are making, significant contributions to the national dialogue about the issues of the day.

I’m glad Senator Graham corrected his misstatement and recognized what should be undeniable:  bloggers, like all citizens, are protected by the First Amendment.  It’s just a bit troubling when one of our elected leaders makes such a fundamental blunder in the first place.

A Government Too Big For Its Britches

The Department of Justice’s decision to covertly collect significant amounts of phone call data of the Associated Press is just another sign that we live in a country where the government has grown too big for its britches.

According to a letter sent by the AP to the Department of Justice protesting the action, the DOJ secretly gathered information about AP phone calls for two months.  The records include outgoing calls made on more than 20 telephone lines, including general telephone lines and a fax at AP offices in Hartford, Connecticut, New York City, Washington, D.C., and the U.S. House of Representatives, as well as records related to the calls of five reporters and an editor.  Although the government has not said why it collected the records, the five reporters and editor worked on an AP story about a CIA operation in Yemen that foiled a terrorist plot to blow up a plane and the Department of Justice is conducting a criminal investigation of the leak that led to the story.  The White House was unaware of the subpoenas and the gathering of phone records because the Department of Justice handles such actions independently.

Of course, reporters aren’t immune from prosecution if they commit criminal acts — but due regard for the First Amendment requires that any intrusion into news-gathering be strictly limited and carefully targeted, based on a particularized showing of need.  It’s hard to see how the DOJ action conformed to such restraints.  Finding out who the AP called goes to the heart of news-gathering, and collecting records on more than 20 phone lines used by AP employees hardly seems targeted or sensitive to First Amendment issues.  Instead, it seems like a fishing expedition — and perhaps one specifically designed to chill vigorous exercise of First Amendment rights.  And, of course, the veil of secrecy that the DOJ places over criminal investigations, and the lack of involvement by the White House, will make it difficult to hold people accountable for the action.

Stories about overreaching government employees and lack of accountability have become all too commonplace.  I think it’s one reason why many people have turned to the Constitution and the Bill of Rights, hoping that the the written words will serve to restrain governmental excesses.  As the DOJ action in this instance show, however, written words have an effect only if people are paying attention to them.  How many of the DOJ employees who approved the broad collection of AP phone records, in their zeal to catch a leaker, really gave serious thought to what their actions were doing to the AP’s First Amendment rights?

How To Respond To Muslim Lectures, Edicts, and Bounties

The Muslim world has been giving the United States a lot of advice and information lately.  No doubt we’ll hear more thoughtful recommendations and guidance in the next few days, as Muslim leaders come to New York for a meeting of the U.N. General Assembly.  America needs to decide how to respond.

In Egypt — where only days ago raging mobs stormed the U.S. embassy and ripped down our flag — the new President, Mohamed Morsi, says in an interview with the New York Times that the United States needs to fundamentally change its approach to the Muslim world and show greater respect for Muslim values.  In the meantime, the head of the largest fundamentalist Islamic party in Egypt, which supported Morsi, is calling for U.N. to act to “criminalize contempt of Islam as a religion and its Prophet.”  And in Pakistan — a supposed ally — the government Railways Minister has offered a $100,000 payment to whomever kills the makers of the YouTube video The Innocence of Muslims and called upon al Qaeda and the Taliban to help in murdering the videomakers.  (Fortunately, the Pakistani government says it “absolutely disassociates” itself with the comments of its Railway Minister.  Thank goodness!)  And we haven’t even heard yet from the likes of Mahmoud Ahmadinejad, who will be speaking to the U.N. General Assembly, too.

It’s heartening to hear from the enlightened leaders of a region that is widely recognized for reasoned discourse and thoughtful consideration of opposing viewpoints.  But I’d like to see whoever speaks for America at the U.N. General Assembly share some of our views with the assembled Islamic leaders — and do so in pointed terms.  We should say that we relish our First Amendment, and we’re not going to change it no matter how often Muslims go on murderous rampages at some perceived slight.  We should say that will fight any effort to criminalize speech and will veto any ill-advised U.N. resolution that attempts to do so.  We should emphasize that we think that the world needs more freedom, not less, and that we stand with the forces of liberty.  We should tell the Muslim leaders that their real problems are not with freedom of speech and freedom of religion, but with tribal-based, anti-female societies that crush individual initiative, medieval economies that leave huge swathes of the population unemployed and ready to riot at any moment, and corrupt leaders who are more interested in amassing their own fortunes than helping their people realize a better way of life.  Oh, and we should make clear that we won’t do business with government where ministers are offering bounties on the heads of filmmakers.

I’m tired of our simpering, whimpering approach to defending our fundamental freedoms.  It’s high time that we stood up for what we believe in and told the Islamic world that they can riot all they want:  we aren’t going to back away from our liberties.