Daily Archives: July 4, 2017

President Donald Trumps escalating attacks on the media have disturbed and unnerved politicians, commentators and citizens across the political spectrum and they have unleashed a national dialogue on free speech and its limits.

Those attacks seemed to reach a crescendo with Saturdays scathing denunciation of the media for its efforts to silence him and his followers. The fake media, he said, is trying to silence us. But we will not let them. Because the people know the truth. The fake media tried to stop us from going to the White House. But Im president and theyre not. The supposed truth that Trump hopes people know is that they cannot trust the media.

Saturdays condemnation, coming on the heels of last weeks tactless Twitter attack on MSNBCs Mika Brzezinski, turned out only to be a prelude to what followed. On Sunday, the president tweeted what appears to be an edited version of his 2007 WrestleMania appearance, where Trump attacked wrestling icon Vince McMahon. Trump is shown, just outside the ring, body slamming and getting on top of a man whom he repeatedly punches. The CNN logo is superimposed on the face of his victim. Lest anyone miss his point, the presidents tweet included the words #FraudNewsCNN #FNN.

Commentators quickly reacted. ABCs Matthew Dowd claimed Trump is advocating violence against media. CNNs Ana Navarro denounced the tweet as an incitement to violence. She warned that the president is going to get somebody killed in the media.

But does the presidents video pose a clear and present danger? And if so, to whom to specific persons, or to democracy itself?

Since the start of his presidential campaign and through the first months of his term in the Oval Office, Trump has shown himself to be a free speech radical, playing against, as well as within, conventional understandings of the First Amendment. His speech is frequently tasteless and intentionally offensive, and Sundays tweet is certainly both and, as the commentators warned, potentially harmful.

But, as the distinguished political philosopher George Kateb noted, even worthless or harmful speech is, and should be, protected by the First Amendment. Moreover, the video posted on Sunday is not incitement in the legal sense of that term. The Supreme Court has said that the government may only prohibit the advocacy of violence when such advocacy is intended to produce imminent lawless action and is likely to produce such action.

While the president likely knows little about constitutional interpretation, he once again displayed his considerable skill in showmanship. He artfully staged his attack against the background of an event which is, as the president himself loves to say, fake: WrestleMania is entertainment based on the performance of violence, rather than an actual violent fight. This fact, no doubt, would help Trump defend himself, if his tweet in fact precipitates violence against a reporter.

Still, it reveals plainly the nature of the presidents fantasies about what should be done to journalists who oppose him, even if it does not reveal a plan to carry out a physical assault. The video is inspired by the violent control over media critics exercised by authoritarian leaders like Russian President Vladimir Putin (surely one reason Trump so admires him).

It also exposes the deep hypocrisy of what the president said after the shooting of Majority Whip Rep. Steve Scalise and others mere weeks ago: We are strongest when we are unified and when we work for the common good, he said.

Trump has never been a voice for unity. Sundays tweet reminds us all too well of the presidents history of calling for violence against those who protested at his campaign rallies. In one instance, he proclaimed that he would beat the crap out of a protester. In another, he praised people using physical force at his rallies as appropriate. In still another, he spoke glowingly about times when a protester would be carried out on a stretcher.

Trumps defenders will say that such rhetoric was all in the past, or that the video is a distraction, perhaps an amusing parody. Or they will want us to believe what deputy press secretary Sarah Huckabee Sanders said on Thursday: The president in no way form or fashion has ever promoted or encouraged violence. If anything, quite the contrary.

Even if Americans were to ignore what Trump said repeatedly during the campaign and give credence to Sanders assertion, no one can have confidence that all of the videos viewers will understand the distinction between the real and the staged, the fantasy and the reality. To protect reporters and the press which Trump has likened to the enemy of the people news outlets that hold credibility with the presidents most fervent supporters must now show what Kateb called civil courage and denounce Trumps latest outrage.

Let them rise to the defense of their fellow journalists. Let them, as CNN has promised, do their job.The danger to freedom of the press is real, and the danger to democracy is undeniable. We should be weary of those who pretend that Trumps tweets and the video are all just for show.

Previously published by USNews, July 3, 2017

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Trump's Strain On Free Speech - HuffPost

When Donald Trump began to block a growing number of Americans from seeing his tweets, the Knight First Amendment Institute shot back. The organization warned the President in June that the Twitter account is a public forum, and that excluding citizens (novelist Stephen King is among those blocked ) violates the Constitution.

The argument is novel and not every legal scholar thinks it will succeed. But whatever the outcome, the dispute over Trump's tweets reflects how free speech fights are changing in the digital age. Today, many of the legal battles turn on technology, surveillance and who should control powerful communications platforms, like Facebook and Twitter.

Fortune spoke to the Knight Institute's first director, Jameel Jaffer , and staff attorney, Alex Abdo , to learn more about free speech flash pointsand how they intend to stand up for the First Amendment in the time of Trump.

Free Speech on Facebook's Public Square

Jaffer is an affable, ardent 40-something with a sparkling legal resume: Harvard Law Review, clerk to the Chief Justice of Canada and, most recently, deputy legal director of the ACLU. Now, he has the biggest job of his life leading the Knight Institute.

The goal of the center, which opened this year as a $60 million joint initiative of the Knight Foundation and Columbia University, is to defend free speech through research, lawsuits and education. It will pay close attention to technology.

New technology has transformed the landscape. A lot what used to take place in the public square now takes place on proprietary networks," Jaffer says, pointing to the influence of Facebook and other social media companies on politics.

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Today, these companies have more influence than traditional news outlets. Yet they are less willing to take up the torch when it comes to fighting for the First Amendment in court. Unlike the newspapers that foughtand wonmany landmark First Amendment cases at the Supreme Court in the 1970s and 80s, tech firms are absent from many big free speech fights.

What's more, Jaffer worries the likes of Twitter and Facebook possess too much power over what people can hear and say in the first place. And when it comes to challenging them, it's an uphill legal fight since they are private companies , which are not subject to the First Amendment.

But that doesnt mean its not a free speech issue. Its probably the most important free speech issue of our agethe power of social media companies over the speech we are allowed to hear, says Jaffer.

This why controversies like the one over Donald Trump blocking citizens from seeing his tweets are so important. They involve traditional free speech concernsthe President could never block people from seeing a government web siteand new social media technology.

In July, following another social media rant by the President, the Knight Institute's case that social media is subject to the First Amendment got a little stronger:

Speech in the age of Surveillance

While social media companies control over public discourse is a major threat to free speech, its hardly the Institute's only concern. Another worry is creeping surveillance technology and the government's ability to obtain enormous amounts of informationincluding our location right from the devices in our pockets.

Jaffer fears that increased ability of governments to spy produces a chilling effect. If people know their phones can be tracked, or their contents seized and extracted, they may be less willing to speak freely or criticize the government.

Meanwhile, even as the government expands its surveillance powers, it is getting more adapt at using laws to silence journalism and cover up its own activities.

According to Abdo, the staff attorney at the Knight Institute, the Justice Department has been particularly aggressive in invoking the Espionage Age to threaten reporters. In doing so, he says, it is using unproven legal theories to undermine the ability of journalists to talk to sources and conduct important reporting.

No court has decided how broadly that statute reaches or if it reaches as broadly as the government says it does, and if it violates the First Amendment, says Abdo.

In response, the Knight Amendment intends to advance the legal cause of whistleblowers. Specifically, Abdo says it will make a case that the First Amendment offers a shield for journalists and others who reveal information in the public interest.

Jaffer adds that the Institute will also focus on so-called structural litigation, which aims to reform government practices that stymie free speech and access to documents.

One such example is the growing number of current and former government workers who are subject to security clearance, which bars them from speaking without prior permission. The restraints may be sensible in the context of sensitive intelligence or military operations. But today more than 5 million Americansmany of whom possess little in the way of classified informationare subject to this censorship.

Its the largest system of prior restraints still in place in the United States. We think its unconstitutional, says Jaffer.

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Fighting for Free Speech in the Age of Trump and Twitter - Fortune

After a century of building free speech rights into our laws and culture, Americans are backing away from one of the countrys defining principals.

Set off by the nations increasingly short fuse, students, politicians, teachers and parents are not just refusing to hear each other out, were coming up with all sorts of ways of blocking ideas we dont agree with.

In high schools across the country, teachers say they stay away from hot topics such as immigration and health care because so many parents complain when their kids encounter emotional issues in class.

At colleges from Berkeley to Middlebury, a year of protests, many aimed at blocking controversial speakers, led to Congressional hearings last week that could end up in sanctions against some of the schools.

On the internet, scores of anonymous posters are drumming targets into silence. In one case, actress Leslie Jones temporarily fled Twitter, feeling like she was in a personal hell from an onslaught of hacks and hateful posts. In another, a congressional candidate in Iowa quit the race in early June after receiving calls and emails that included death threats.

The American concept of free speech was built into the Bill of Rights in 1789 and forged into laws over the last 100 years to become a global icon of freedom. Those who study history and the Constitution worry that in the past year, weve done real damage to a notion at the heart of democracy.

I do think the First Amendment tradition is under siege, said Jeffrey Rosen, president of the National Constitution Center in Philadelphia. Pamela Geller, a firebrand commentator and founder of the American Freedom Defense Initiative, added, Freedom of speech has never before been so poorly regarded by such large numbers of Americans.

Where will this country be if its speech tradition falters? We can already see an awkward dynamic taking shape. In social settings, when we come face to face, were hesitant to say what we think, while online in mostly anonymous exchanges all manner of spite and bitterness pours forth.

This raises a question worth thinking about as we celebrate Americas birthday this week: What are the chances of resolving the countrys differences if we no longer talk or listen to one another?

We cant lose sight of the fact that the ability to speak our minds is one of the fundamental freedoms in self government, said Gene Policinski, chief operating officer of the Newseum Institute in Washington, D.C.

A mix of developments, incidents and trends put us on this path.

At many colleges and universities, students say they shouldnt have to put up with views they find offensive, racially insensitive or wrongheaded. The thinking arose over time, and then gained momentum with the Black Lives Matter movement and the stormy politics of the year.

The sometimes-violent protests have drawn lots of reaction, condemnations and solutions but not much consensus.

I find this really hard, said Edward Wasserman, dean of the graduate journalism school at Berkeley, where protests earlier this year blocked conservatives Ann Coulter and Milo Yiannopoulos from speaking. But I dont think the world is a worse place because Ann Coulter doesnt get to say something shes already said a thousand times.

Others see a fundamental failing at work.

Its hard not to conclude that too many of our students havent had a civics course in junior high school, said Floyd Abrams, the pre-eminent First Amendment lawyer who handled cases from the Pentagon Papers to Citizens United and just published a new book, The Soul of the First Amendment.

If the high school curriculum is part of the problem, that may be because teachers are hesitant about their roles. David Bobb, head of the Bill of Rights Institute, funded by industrialist Charles Koch to provide training to schools, said he hears regularly from teachers who avoid topics for fear of backlash.

They have to wonder, If I get into this controversial topic, am I going to be backed up by my department chair, or the principal? he said. Or are the parents going to come after me and say its not your place to talk about this?

The internet is helping fuel whats happening by creating a mob mentality and adding enormous speed and reach to what people say. Its become so much more chaotic, said Lee Rainie, who directs Pew Research work on technology, science and the internet.

Almost every conversation on the state of free speech ends up on the question of what can be done.

Embarrassed by whats happened, universities are writing new student codes and rules of engagement for visiting lecturers. Were working hard to get our act together, said Wisconsin political science professor Donald Downs, who has led a push for civility.

Organizations such as the Constitution Center and the Bill of Rights Institute see solutions in education programs and better curriculum for schools. In 18 states, legislatures think the problem rests in the unruly protests and are preparing laws that would limit mass gatherings.

Still, more than a dozen observers from every perspective interviewed for this piece said we should expect more rocky times ahead.

They cite a political climate with a historic level of rancor, a president whos been mostly on the attack since his inauguration and a media thats embraced the conflict with a fervor that has brought record viewership and readership.

When people quit listening to each other, theres that lack of discussion and a lack of understanding, said Bradley A. Smith, the former chairman of the Federal Election Commission and professor at Capital University Law School in Columbus, Ohio. Thats when theres a growing tendency to think the other side shouldnt be able to say what they think.

If America becomes torn against itself, I think free speech sort of goes out with it, said Downs, the Wisconsin professor.

Sometimes Im genuinely anguished over the kind of society were going to have if this keeps going, said Christina Hoff Sommers, an author and resident scholar at the American Enterprise Institute, a conservative think tank in Washington, D.C. Its easy to take it for granted and not recognize that were jeopardizing these freedoms.

Summing up: Its worth remembering that free speech rights were built over decades of conflict. Theyve been tested in every generation, through wartime, civil rights, the rise of new technologies and the threat of terrorism, and have been solidly supported by U.S. Supreme Court rulings as recently as last week.

Todays conflicts are the most complicated yet and show no sign of easing. But as more than one scholar has pointed out, free speech is the starting place for all our other rights. We shouldnt lose sight of whats at stake: Without the free flow of ideas, the American experiment cannot succeed.

NOTE: Anders Gyllenhaal is a senior editor at McClatchy and former editor at The Miami Herald, the Star Tribune in Minneapolis and The News & Observer in Raleigh, N.C. You can reach him at Agyllenhaal@McClatchy.com.

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Do we still believe in free speech? Only until we disagree - Sierra Star

This article originally appeared on The Conversation.

Around the country, state lawmakers have been talking aboutand legislatingways intended to protect free speech on college campuses.

The Wisconsin State Assembly, for example, recentlypassed a campus speech billthat would require public colleges and universities to punish students who disrupt campus speakers. The legislation is now heading to the State Senate for consideration.

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As a higher education law researcher and campus free speech supporter, I view some requirements in these new campus speech laws as positively reinforcing legal protections for student free speech. However, I believe language in several pending state bills,including the punitive legislation proposed in Wisconsin, does more to impede free speech than protect it.

College students at the University California San Diego demonstrate against President Donald Trump's current immigration orders in La Jolla, California. REUTERS/Mike Blake

Free Speech Zones

In an effort to keep campuses safe and avoid disruption, some universities have restricted student speech and expressive activitysuch as handing out leaflets or gathering signatures for petitionsto special speech zones.

These free speech zones have been subject tocriticism and legal challenges. In one illustrative case, a federal court invalidated aUniversity of Cincinnati policythat limited student demonstrations, picketing and rallies to one small portion of campus.

The U.S. Supreme Court, however, has not ruled definitively on the legality of designated student speech zones. Consequently, legal battles over their constitutionality continue, as shown bypending litigationinvolving a Los Angeles community college student who claims he was allowed to distribute copies of the U.S. Constitution only in a designated campus speech zone.

Some states have recently enacted laws that prohibit public colleges and universities from enforcing such free speech zones against students. At least seven states have passed anti-speech zone laws:Virginia, Missouri, Arizona,Colorado,Tennessee,UtahandKentucky.

Public institutions in these states may impose reasonable rules to avoid disruption, but officials cannot relegate student free speech and expression to only small or remote areas on campus. Instead, they must permit free speech in most open campus locations, such as courtyards and sidewalks.

Along with the pending legislation in Wisconsin, which also wouldban speech zones,North Carolina,Michigan,TexasandLouisianaare considering similar legislation.

Striking down these free speech zones seems a sensible way to promote student free speech: In my opinion, institutions shouldnt seek to restrict students First Amendment speech rights to strict borders on campus.

Punishing Protesters

If the Wisconsin bill passes in its current form, the state would do more than ban designated free speech zones. It would also become the first state requiring institutions to punish student protesters. The North Carolina House of Representatives has passed a similarbill, now under review in the State Senate, but this legislation seems to leave institutions morediscretionover dealing with students disrupting speakers than the Wisconsin legislation.

Conservative pundit Ann Coulter is No. 13 on Right Wing News's list of the "20 Hottest Conservative Women in New Media." (Mark Mainz / Getty Images)

Much of the push for campus speech bills has come from lawmakers who believe that college campuses arehostile to conservative speakers. They point to incidents such as those involvingAnn CoulterandMilo Yiannopoulosat the University of California at Berkeley as indicative of an overall resistance to conservative speakers on campus.

Provisions in campus speech bills, including ones mandating penalties for students who disrupt speakers, can largely betracedtomodel legislationfrom the Goldwater Institute, based in Phoenix, Arizona. The group aims to correct what it views as a left-leaning bias in American higher education regarding campus free speech.

In my view, forcing colleges to take punitive action against all disruptive protesters is troublesome. Such a requirement would mean that institutions would be faced with devising overly cumbersome rules for when punishment should or should not occur. But what counts as a punishment-worthy disruption?

A more problematic outcome would be if free speech werechilled. Students might understandably refrain from speech and expressive activity based on fear of punishment, particularly if the rules around such punishment are necessarily vague and difficult to understand.

Based on such concerns, theFoundation for Individual Rights in Educationan influential group that promotes, among other things, student free speech in higher educationhascome out against this particular requirementin the Wisconsin bill. The American Civil Liberties Union has alsoexpressed concernover the similar provision under consideration in North Carolina.

Moving Forward

The Wisconsin bill isdescribed by supportersas intended to protect the right of campus speakers to be heard. However, it seeks to accomplish this goal in a way that undermines student free speech of all types.

Hopefully, lawmakers in Wisconsin and in other states considering legislation will stick to workable measures that actually promoteas opposed to hindercampus free speech.

Neal H. Hutchens is Professor of Higher Education, University of Mississippi.

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New Legislation Could End Free Speech on College Campuses - Newsweek