Monthly Archives: May 2017

By Roy S. Gutterman By Roy S. Gutterman May 19 at 9:43 AM

Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.

When protesters recently shouted conservative firebrands Ann Coulter and Milo Yiannopoulos off the University of California at Berkeley campus, the irony surrounding these two separate but related incidents was as bright as the fires that the protesters ignited, nearly burning down an academic building. How could the birthplace of the 1960s free speech movement be so hostile to opposing viewpoints?

A university should be a place where discussion and debate flourish. In this case, speakers on one side of the debate had no trouble articulating their viewpoint, while they silenced speakers on the other side of the table. This not only stifles the marketplace of ideas, it also runs counter to the values of the First Amendment.

While conservative opinions were targeted at Berkeley, challenges to free speech come from across the political spectrum. President Trumps declaration that the press is the enemy of the American people was one of his sharpest attacks against journalists and the Fourth Estate. It built on his other promises to crack down on leaks to journalists, as well as his campaign rhetoric naming and personally insulting reporters, and pledging to crack down on opponents and open up libel law to make it easier to recover damages from the press.

[Pray for the First Amendment. Now.]

Yet in the face of the rhetoric, the vitriol and the tweets, citizens and the press are still able to draw on the power and permanence of the First Amendment. Floyd Abrams, perhaps the countrys most prominent First Amendment and media lawyer, makes his latest case defending free speech and press rights in his book The Soul of the First Amendment. Abramss thesis is that speech and press rights are woven into the fabric of America and set the United States apart from the rest of the world. These inherently human rights are akin to freedom of conscience and lead citizens to achieve self-fulfillment through speech, expression, publication and the free flow of information.

A series of six essays, The Soul of the First Amendment is a quick read, and at about 140 pages, considerably thinner than Abramss other books on the topic, particularly his recent books Friend of the Court (2013) and Speaking Freely (2005). These essays are readable and comprehensible to both a specialized audience of lawyers and laypeople just looking to understand a little more about these rights.

The books brevity does not detract from its substance or clarity as Abrams explains the origins and tensions of the First Amendment. He dives into historic and contemporary controversies that test our adherence to these principles, noting, Speech is sometimes ugly, outrageous, even dangerous.

The journey of the First Amendment begins at the Constitutional Convention in 1787 and with the vision of James Madison and the framers who emerged from the Revolution skeptical of governments power over the people, and governments propensity to abuse that power through censorship or aggressive application of laws to punish speech or dissent.

The notion that First Amendment interests are served whenever laws genuinely reflect public opinion also seems to overlook the reality that the public too often seeks to suppress speech it disapproves of, he writes.

The road, however, is littered with the carcasses of dissidents and offensive speakers. Threats to speech are discussed throughout the book, including the Sedition Act of 1798; the Espionage Act of 1917; and the jailing of abolitionist journalists during the Civil War or communists and socialists during the Red Scare, McCarthyism and the Cold War. American history is replete with examples of attacking, punishing, ostracizing or censoring a range unpopular or offensive speakers.

[Our First Amendment test is here. We cant afford to flunk it.]

As the country has evolved, so has our protection of and tolerance for free speech and the marketplace of ideas.

Abrams supports much of his thesis in a lawyerly fashion, pointing to Supreme Court precedents and sprinkling in points from caselaw. It reads like a First Amendments Greatest Hits compilation. He cites such cases as New York Times v. Sullivan (1964), which revolutionized libel law and facilitated robust debate and criticism of public officials and public policy, particularly civil rights. He describes how in New York Times v. United States (1971), the Pentagon Papers case, the Supreme Court stood up to the Nixon administration by refusing to allow the government to block publication or censor the Times and The Washington Post, which were running stories based on leaked top-secret government documents.

The historic and the contemporary are explained and juxtaposed. For example, Abrams draws comparisons between the Pentagon Papers and WikiLeaks and the Edward Snowden stories published by the Guardian. Discussions of public officials and public figures litigating against the press are compared with recent threats by President Trump, as well as the Hulk Hogan invasion-of-privacy verdict against Gawker.

Other recent First Amendment challenges are also part of the discussion, including offensive religious protesters at military funerals, virtual child pornography, videos depicting animal abuse, flag burning and other outrageous speech. This illustrates another theme: It is easy to protect speech that does not rankle people, but the First Amendment protects ugly and offensive speech, too. Abrams also devotes a sizable portion of a chapter to defending the controversial Citizens United case.

Resting nicely on the pedestal Abrams builds, the First Amendment might be akin to Americas crown jewels, setting us apart from dictatorships and even other democracies. He writes that the gulf between the legal protections afforded to free expression in the United States and those afforded in Europe remains oceanic.

The explication begins with an anecdote from a family cruise in 1976, when his son, Dan, got into a tiff with the ships British staff, which barred the youth from a viewing of the PG-rated All the Presidents Men because of profanity. The aggrieved Dan, who grew up to be a lawyer and legal affairs reporter, chortled, Thats why we have the First Amendment.

Of course, the protections of the First Amendment apply only to government action and do not reach beyond our borders. However, this personal story sets the tone that Madison was really onto something unique.

Many other countries have laws protecting and supporting freedom of speech. However, Abrams notes that in many places, these pronouncements are mere lip service to such freedoms, especially in places where journalists and dissidents are censored, harassed, imprisoned or killed for expressing themselves.

With these countries, there is no comparison and never will be. Abrams also distinguishes between American values and European countries, particularly Britain and the European Union, where libel laws are more plaintiff-friendly and the right to be forgotten has forced websites and search engines such as Google to remove hundreds of thousands of articles. International plaintiffs seek and sometimes find hospitable jurisdictions in which to litigate and punish the press through libel tourism.

As much as the First Amendment grants us rights to speak and express ourselves, the amendments construction is a bar on government power and potentially abuse. Congress shall make no law is a declaration to people around the world that the United States reveres our speakers and our government shall not abuse them.

Abrams has spent a lifetime fighting for First Amendment rights in courtrooms and the court of public opinion. It takes lawyers and judges to protect these rights and to write the story of the First Amendment. Abramss tribute to the amendment comes at a time when many believe that freedom of the press and freedom of speech are under attack from the highest levels of government.

Lets hope Abrams is writing an homage to the First Amendment, not its obituary.

The Soul of the First Amendment

By Floyd Abrams

Yale. 145 pp. $26

The rest is here:
First Amendment: often challenged but consistently enduring - Washington Post

From Brennan v. U.S. Dept of Homeland Sec., decided Tuesday by the Ninth Circuit:

When Transportation Security Administration (TSA) officers at Portland International Airport told John Brennan that he needed to undergo additional security screening because he tested positive for explosives, Brennan, in the middle of a TSA checkpoint, stripped naked. When TSA officers told Brennan to get dressed, he refused three times. After TSA officers had to close down the checkpoint and surround Brennans naked body with bins until the police arrived to remove him, the TSA fined Brennan $500 for interfering with screening personnel in the performance of their duties. See 49 C.F.R. 1540.109 (No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.). Brennan petitioned for our review. We have jurisdiction under 49 U.S.C. 46110, and we deny the petition.

Brennans core contention is that stripping naked in the middle of a TSA checkpoint is expressive conduct protected by the First Amendment. But Brennan fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). Therefore, his conduct is not protected by the First Amendment.

Brennan also argues that his conduct did not violate the TSA regulation and that even if it did, the regulation is too vague to survive challenge under the Due Process Clause. Neither argument has merit. The regulation prohibits interfer[ing] with screening personnel in the performance of their screening duties. 49 C.F.R. 1540.109. A regulation is unconstitutionally vague if it fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. In making this judgment, we provide greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.

Brennans conduct falls squarely within the regulations ordinary, contemporary, common meaning. We have long recognized that interfere has such a clear, specific and well-known meaning as not to require more than the use of the word[] in a criminal statute. In other words, the word has a settled legal meaning[]. And courts have often defined and applied it, but never in a way that would lead a person of ordinary intelligence to think that he or she could strip naked at a TSA checkpoint and refuse to get dressed, leading to the closure of the checkpoint.

The petition for review is DENIED.

Note that Brennans Oregon state court prosecution for public nudity ended with an acquittal:

The judge sided with the defense, which cited a 1985 Oregon Court of Appeals ruling stating that nudity laws dont apply in cases of protest.

It is the speech itself that the state is seeking to punish, and that it cannot do, Circuit Judge David Rees said. [Oregonian, Aimee Green.]

But the Ninth Circuit wasnt bound by this conclusion; state acquittals dont preclude federal claims, and in any event criminal acquittals dont preclude civil claims, which rely on a lower standard of proof. (Remember O.J.?)

Go here to read the rest:
Naked TSA Checkpoint Guy loses First Amendment challenge to $500 fine - Washington Post

ANALYSIS/OPINION:

Sometimes theres a nugget of something good in the daily ration of bad news. A T-shirt printer in Lexington, Ky., one Blaine Adamson, won a state court ruling early this month that he was within his First Amendment rights to refuse to print an offensive message on T-shirts ordered by the Gay and Lesbian Services Organization for a gay pride parade.

The court overturned a ruling by the Lexington-Fayette Urban County Human Rights Commission that Mr. Adamsons firm, called Hands On Originals Christian Outfitters, violated a city ordinance barring discrimination based on sexual orientation.

Writing for the court majority, Chief Judge Joy Kramer agreed that the ordinance prohibits such discrimination, but discrimination was not at issue. Objecting to being compelled to propagate a message Mr. Adamson finds odious is not the same as refusing to serve the group because of the sexual orientation of its members.

The right of free speech does not guarantee to any person the right to use someone elses property, Judge Kramer wrote. The conduct [that] Hands On Originals chose not to promote was pure speech. Nothing in the fairness ordinance prohibits Hands On Originals, a private business, from engaging in viewpoint or message censorship.

Indeed, Mr. Adamson said hes willing to print LGBT T-shirts as long as the message he is asked to print on them does not promote homosexuality. Hands On Originals prints messages on mugs, pens and other things as well as T-shirts. Mr. Adamson has in the past declined printing jobs for a strip joint and for pens promoting a sexually explicit video.

The Kentucky ruling runs contrary to similar cases in Colorado, Oregon, New Mexico and elsewhere, in which Christian bakers, photographers and florists were penalized for exercising religious beliefs in refusing to participate in same-sex weddings.

The Kentucky ruling should encourage Jack Phillips, owner of the Masterpiece Cakeshop of Lakewood, Colo., who has appealed to the U.S. Supreme Court to reverse a 2013 ruling by the Colorado Civil Rights Commission, upheld by state courts, to punish him for refusing, for religious reasons to bake a cake for a same-sex wedding reception.

The high court has avoided taking the Phillips appeal for months while the court lacked a ninth justice in the wake of the death of Justice Antonin Scalia. With the confirmation of Neil Gorsuch as the ninth justice, the high court is now fully manned and ready for business.

See more here:
EDITORIAL: Good First Amendment news - Washington Times - Washington Times

After reading a column titled "Setting the record straight," written by Pat Mitchell and published in the Saturday, May 13, edition of the Vail Daily, a concerned community member emailed me, calling into question my decision to allow Mitchell to use the newspaper as a forum to share his thoughts on homosexuality and the church.

As journalists, we live and die by the First Amendment, which protects all manner of expression, with a few notable exceptions. These exceptions have been defined by case law and include such things as obscenity, child pornography and inciting others to lawlessness.

When it comes to determining whether a submission makes it onto the commentary pages of the Vail Daily, the above-mentioned exceptions to free speech rarely, if ever, come into play. The three categories we are much more likely to come across are defamation, or in our case, since it's written, libel; what's called a "true threat," which is a verbal assault that threatens physical harm to a specific person; and fighting words.

Fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace," wrote Justice Frank Murphy in the 1942 U.S. Supreme Court decision for Chaplinsky vs. New Hampshire, a case that helped define those unprotected elements of speech.

Mitchell concluded his column by saying, "The Bible accepts homosexuals, both men and women, to the faith. They don't, however, condone their sexual behavior. Churches welcome them willingly as they would adulterers, thieves and others seeking forgiveness."

By describing homosexuals in the same breath as adulterers and thieves, was Mitchell using fighting words, inciting immediate action from those who read his remarks and thereby wandering into the narrow realm of speech not protected by the First Amendment? I don't believe so.

Whether or not I agree with Mitchell's conclusion did not factor into my decision to print his column. If I censored every opinion that ran contrary to my own, then I would not be a very good steward of this newspaper. Instead, I weighed his words against established tenets of free speech and, after careful consideration, published his column.

I believe it's critical that submissions to the commentary pages of the Vail Daily remain as free from my or anyone else's intrusion as is possible under the law, in order to cultivate a robust community dialogue. As a newspaper, we cannot demand the protections provided us by the First Amendment if we don't also uphold them within these pages.

Krista Driscoll is the editor of the Vail Daily. You can reach her at kdriscoll@vaildaily.com.

Read more:
Vail Daily column: First Amendment and the commentary page - Vail Daily News

On the same day the president of Northwestern University told the Wall Street Journal it was sometimes appropriate to restrict speech on campus, disruptive students prevented an in-class speech by an official from U.S. Immigration and Customs Enforcement.

An ICE spokeswoman was scheduled to talk to a Northwestern sociology class on Tuesdayone half of a two-part lesson, now cancelled, that would have also included a speech by an undocumented immigrant.

Protestors initially stood outside the classroom chanting F**k ICE. They were then admitted to the classroom, where they interrupted the talk and aggressively confronted both the ICE representative and the professor who had invited her, the student newspaper reported. The ICE officer left without completing her speech.

That same day, the Wall Street Journal published an interview with Northwesterns president, Morton Schapiro, where he defended safe spaces and said that offensive speech targeting specific individuals or groups might, in some circumstances, be considered assault, not free speech.

You want to protect the First Amendment, obviously, but it isnt absolute, Schapiro said. People reduce it to slogans or free speech at all costs.

Schapiro also said: I will just say that if you shut down freedom of speech, you better have a really good reason. I think if you shut down anything, you better be really sure that you have a moral and legal justification to do it. Thats my view.

The protestors came from MEChA, a campus Chicano group; Black Lives Matter, the Immigrant Justice Project, the Asian American Pacific Coalition and various LGBT campus groups, the Daily Northwestern reported.

On Facebook, MEChA defended shutting down the ICE officials talk:

Dialogue with any ICE official legitimizes their position as state actors of violence.The presence of an ICE PR agent whose sole purpose is to make ICE look good and recruit students implies university complicity and encouragement of the actions of this organization. We do not engage in conversations with ICE in any way, shape or form regardless of their position.

Citing security and privacy concerns, Beth Redbird, the professor who invited the ICE official to speak, said she had cancelled a scheduled talk by an undocumented immigrant. Her class focuses on inequality in American society with an emphasis on race, class and gender.

In a discussion with students, Redbird defended her decision to invite the ICE representative, the Daily Northwestern reported. All they did was come here today to answer questions so you know whats going on, so that you are informed and so you can make decisions. If you want to make change in a community, you need to know whats going on, she said.

In a jointstatement, Schapiro and Northwesterns provost said they were deeply disappointed in students disrespectful, inappropriate behavior Tuesday.

While we understand the point of view expressed by the students protesting the guest lecturers invited to speak here, the resulting disturbance not only limited the academic inquiry central to our campus, it also forced invited speakers to leave and violated the rights of other enrolled students who were present to learn. Free expression must be protected and should be countered with more debate, close examination and critical thinkingnot censorship, their statement said.

The university also said it was reviewing the facts around the protests so it could take appropriate action.

Earlier this week, the Northwestern chapter of Students for Justice in Palestine hosted Rasmea Odeh, a woman convicted for a terrorist attack; her group, the PopularFront for the Liberation of Palestine had planted a bomb in a box of candy, which killed two college studentswhen it detonated agrocery storein Jerusalem.Pro-Israel groups on campuscondemned the event as an affront to the sanctity of life, saying it crosses a moral line.

In a statement, Northwestern Hillel announced it would hold a silent vigil for Odehs victims outside of the venue. This will be a silent, non-confrontational vigil, the group said. We will not attempt to disrupt the event in any way.Our goal is not to protest free speech, but instead to mourn the victims ofthe convicted terrorist who is speaking on our campus.

Schapiro joined about 150 students, professors and staffers who attended the vigil.

Jillian Kay Melchior writes for Heat Street and is a fellow for the Steamboat Institute and the Independent Womens Forum.

More here:
Northwestern Students Shut Down Speech as President Says First Amendment 'Not Absolute' - Heat Street