Daily Archives: January 23, 2015

After one week, a tough question already is being asked: Just how "JeSuisCharlie" (I am Charlie) should we be?

At the outset, First Amendment advocates need to recognize the many layers of such a question -- which originates not in reconsideration of recognition of those killed Jan. 7, but in the subsequent worldwide examination of the content of Charlie Hebdo magazine and other publications like it.

Does being critical of the magazine's biting satire, or suggesting it went beyond free speech into bigotry and deliberate provocation, offer any moral ground or comfort to the criminals who killed 12 people on at the Paris-based weekly magazine?

In many ways, the answer in the U.S. is easier -- at least at the start. The 45 words of the First Amendment says the government "shall make no law" restraining our freedoms of religion, speech, press, assembly and petition. No mention of political correctness, politeness or subjects or styles that legally are out of bounds.

Of course, in the U.S., we daily debate the application of our First Amendment freedoms, in a myriad of detailed ways -- from Christmas carols in public schools, to words we can use on the Web, to how much and what we can donate to political candidates, and more. But we're so sanguine about our core rights that almost none of us can even name them. Since 1997, no more than 6 percent could name all five in the annual State of the First Amendment survey done by the Newseum Institute's First Amendment Center.

Only in the extremes, such as North Korea's objections to the silly movie "The Interview," do we seem to recognize how basic, how important and even how fragile those freedoms are. And with the gut-punch of the terror killings in France, we're suddenly viewing free expression through a worldwide looking glass -- examining its values, deep impact and perhaps its limits.

Should publications show those controversial cartoons of the Prophet Muhammad? Nothing in U.S. law prevents news outlets from doing so. So here, the issue is not "can" but "should." Most news outlets have chosen not to do so, by reports. In the last week, the controversy reached even to the pages (and offices) of The New York Times, which chose not to publish the images.

Times editor Dean Baquet was so angered by what he considered a particularly "nasty and arrogant" comment by a California university professor (Baquet's words) that he included an earthy obscenity in a Facebook post that also said mockingly: "Appreciate the self-righteous second guessing without even considering there might be another point of view. Hope your students are more open minded."

Let's ask the "JeSuisCharlie" question in terms closer to home: Would we have the stomach for a "I am Uncle Sam" style campaign if the catalyst were deaths at a U.S. magazine with a cover story of the week showing a racial caricature of African Americans with the N-word in large type overhead? Or at a Neo-Nazi publication mocking the Holocaust with a cartoon based on the death camps?

Some would say the response has to be "yes." In for a free speech penny, in for a dollar. Others may counter that there is nothing in the First Amendment that mandates -- and at times, even shields -- language that is deliberately intended simply to provoke and insult in a manner more akin to unprotected "fighting words" than the First Amendment ideal of dueling ideas.

The rest is here:
Legacy of Charlie Hebdo deaths

By ZOE FERGUSON

The New York Times columnist Adam Liptak, who covers the SupremeCourt in his biweekly column Sidebar, spoke on controversies surrounding the First Amendment in a lecture Thursday.

Liptak who was named a Pulitzer Prize finalist in exploratory journalism in 2009 framed his discussion on the 1905 court case Joseph Lochner v. New York, which struck down labor laws and allowed greater First Amendment freedoms to companies.

Liptak called the case an anti-canon Supreme Court decision, one that most judges do not refer to as precedent or even give credit. In its landmark ruling, Liptak said the Supreme Court decided that liberty of contract was implicit in the Constitutions promise of due process and allowed companies greater freedom over their employees. It also implied that free speech of commercial entities is equal to that of individuals, he added.

According to Liptak, commercial speech has only been recognized as a protected form of speech under the First Amendment since the 1970s.

Liptak said there are two primary preconditions for Lochnerism: the regulation being opposed must be an ordinary regulatory rule and the speech being violated must be commercial speech.

Liptak said in recent years, some believe that the Roberts Supreme Court has proven itself the most First Amendment court in American history.

He cited recent cases in which the Supreme Court ruled that the Westboro Baptist Church could protest at veterans funerals and abortion opponents may protest outside abortion clinics.

We have to tolerate quite a lot of ugly speech, he said.

According to Liptak, the American position on free speech is an example of what he calls American exceptionalism.

Go here to read the rest:
Pulitzer Finalist: United States Free Speech in Flux