‘Freedom From Speech’

Evidence that the human race is not yet won, as a former colleague used to say, is coming in the windows.  From murder in the name of religion, to widespread crime, greed, and violence, to the bottoming of popular culture, it’s pretty clear that this is not mankind’s finest hour.  But enough about mankind, generally speaking.

The subject of today’s tutorial is that little slice of homo erectus living in the USA, and practicing the politics of proto-fascism.  And who are such people, you wonder?  Well, they’re to be found among  activists, journalists, college professors; wherever, in other words, “progressives” congregate in especially large numbers.

It is these worthies who have foisted upon us the deeply undemocratic and freedom-busting protocols of political correctness.  Think about it: We have now arrived as a nation at a time when people who say anything that gives (or could give) offense to any minority – with the exception of white, Christian, heterosexual and Republican men, about whom no amount of criticism or ridicule is sufficient – may find themselves expelled or unemployed, if not under arrest, the constitutional guarantee of free speech notwithstanding.

It is a time when certain taxpayer-funded colleges and universities allow free speech on campus only within designated “free speech zones,” and sometimes not even there.  A time when textbooks must come with “trigger warnings,” lest a reader feel threatened or uncomfortable with the contents therein.

It’s a time when colleges are routinely the site of “disinvitation” campaigns aimed at preventing speakers from appearing on campuses, and when colleges formulate so-called campus speech codes.

It’s because of his concern with this cultural void that Greg Lukianoff, head of the Foundation for Individual Rights in Education (FIRE), has written a new book titled Freedom from Speech.  Published just recently by Encounter Books, this slim volume is must reading for anyone who senses that things are going badly wrong on campuses and beyond, and wants to know what to do about it.

What Lukianoff is doing, in addition to writing books, is challenging colleges with litigation, aided by Bob Corn-Revere, the terrific First Amendment lawyer at Davis Wright Tremaine.  (It should be noted, in the interest of full disclosure and a measure of chest-thumping, that both Lukianoff and Corn-Revere are members of The Media Institute’s First Amendment Advisory Council.)

A justly flattering review of Lukianoff’s book, written by Ronald Collins in Concurring Opinions, provides this telling quote: “This is a surreal time for freedom of speech.  While the legal protections of the First Amendment remain strong, the culture is obsessed with punishing individuals for allegedly offensive speech utterances.”

And it’s this dichotomy: strong legal protections, undermined by weak and/or contradictory applications of the law in the culture generally, that goes to the heart of the problem, and its seeming intractability.

If this situation is to improve, two things need to come to pass: First, some of the colleges being challenged with lawsuits need to defend their positions in court (rather than just buckling under at the threat of litigation) and then lose decisively and painfully; and second, there needs to be some measure of genuine opprobrium attached to the practices, on campuses and everywhere else, of the speech police.

In the meantime, there are a few things people troubled by all this can do.  They can (1) buy Lukianoff’s book; (2) make a tax-deductible contribution to FIRE; and (3) contact Bob Corn-Revere whenever you think you’ve spotted an actionable offense in this area.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Dropping George Will Is a Bad Way To Arrest That Subscriber Decline, Post-Dispatch

Even as such things are becoming commonplace, the sacking of George Will’s syndicated column by the St. Louis Post-Dispatch sets a new low in mainstream journalism’s race to the bottom.

In case you’re unfamiliar with the situation, Will wrote a piece (“Colleges become the victims of progressivism”) in which he ridiculed, in the context of a new Education Department mandate, some phony math and dubious cases being cited to demonstrate that America suffers from a rape epidemic.

Will’s larger point was that the DOE mandate threatens the loss of federal funding to colleges that do not institute a “preponderance of the evidence” standard when adjudicating allegations of sexual assault.  This, he wrote, would inevitably lead to costly litigation “against institutions that have denied due process to males they accuse of what society considers serious felonies.”

Elsewhere in his article, Will also points to the growth of campus speech codes and the idea, on some campuses, of the need for “trigger warnings” on college textbooks that feature language or concepts as might “victimize” unwary students.  Will contrasts these developments – none of which are much resisted by college faculty and administrations – often they’re welcomed – with those same colleges’ anger at another prospective DOE program, a rating system that would compare schools on things like graduation rates, student debt, and earnings after graduation.

Will concludes his piece with this: “What government is inflicting on colleges and universities, and what they are inflicting on themselves, diminishes their autonomy, resources, prestige and comity.  Which serves them right.  They have asked for this by asking for progressivism.”

So that’s it.  That’s what the piece is about.  But not to one Tony Messenger, the editorial page editor at the St. Louis Post-Dispatch.  To Mr. Messenger, Will’s column “was offensive and inaccurate,” for which apologies were in order, and sufficient grounds for dropping his column from the paper permanently.  And what, precisely, was the offensive and inaccurate thing to which Messenger objected?

Well, as reported by the Washington Post’s Erik Wemple, it was: “Seeing the reaction and intensity of the hurt in some of the social media and the reaction of women I know and talking to people who really were offended by the thought that sexual assault victims would seek some special victimhood – it helped seeing that response and it informed my [Messenger’s] opinion.”

Against the slim chance that anyone wonders about it, the St. Louis Post-Dispatch has a long record of supporting liberal and Democratic priorities, which means that Tony Messenger fits right in.  He routinely bashes the Missouri Republican Party, often harshly, and champions every liberal cause that comes his way.

Because it’s not nice to pick on the weak, it wouldn’t be right here to speak about Messenger’s abilities in and of themselves, except perhaps to say that somewhere between his brainpan and his mouth there are little walls that prevent him from making sense when speaking.  You can witness this yourself, and in fact it’s recommend just for the humor, by checking out Messenger’s interview, available on YouTube, with a fellow named Lee Presser (“A Conversation with Tony Messenger”).  Videotaped in 2012, not long after Messenger was hired, it’s almost comic how Messenger filibusters the hard questions while still managing to back himself into rhetorical cul-de-sacs.

One such is his claim that a unique feature of his paper’s editorial page setup is its insulation from the publisher.  This, because of a special editorial board that meets regularly.  Asked by Presser who sits on that board, Messenger says it’s him, two guys who report to him, plus the editor-in-chief, who Messenger reports to, and the guy the editor reports to, the publisher.

Apart from the substantive nature of this matter, and Messenger’s personal shortcomings, there are many smaller ironies.  One is that George Will is the recipient of a Pulitzer prize, named after the former owners of the St Louis Post-Dispatch.  (It and some other newspapers were purchased from Pulitzer by Lee Enterprises for $1.5 billion, a few years after which Lee Enterprises filed for bankruptcy.)

Another is the fact that, from 2010 through the end of 2012, the Post-Dispatch’s circulation dropped from 213,472 to 178,801, while the Sunday paper dropped from over 400,000 readers to 299,000.  At the same time the paper routinely excoriated Republicans and the Republican Party, which today controls both the Missouri House and Senate by more than 2-to-1 majorities.

Asked by Presser in the aforementioned YouTube video why so many people say they no longer read the paper because of its transparent political bias, Messenger’s answer (trimmed of its fat) was that such people are confused, and that they should remember they can always write letters to the editor.

Yes, that’s it exactly.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  A version of this article was first published here on The Daily Caller on June 23, 2014.

Free Speech and the Academy

So here we are as a nation, at the intersection of fear and despair, and what do we get?  A blessing on the activities of the latter-day Hitler Youth among the nations “progressive” collegians!  This, courtesy of a piece written by one Lucia Graves, as published in National Journal.

Under the title “The Case for Protesting Your Commencement Speaker,” Graves manages to assemble, in the fewest number of words, more non sequiturs, straw men, and fallacies than should be permitted any professional journalist.

Of course some might argue that Graves is neither professional nor a journalist.  Having formerly written for the Huffington Post about energy matters, where she demonstrated the same facility for agitprop that she displays in the NJ piece, Graves more closely resembles a wannabe editorialist or MSNBC commentator than a journalist or reporter.

For those who get the picture already, and would rather not inflict on themselves the whole of Graves’s opus, it’s perhaps enough just to know the subtitle of her piece: “These students aren’t silencing debate.  They’re creating it.”

That statement sums up nicely the quality of what Graves has to say about the recent travesties at Rutgers, Haverford, Smith, and numerous other colleges, where students and faculty have succeeded in shouting down, or otherwise causing the cancellation of appearances at campus events, of speakers who have said or done something that gives offense to the PC police and student/faculty progressives.

Graves’s argument is reminiscent of one made by a protester at Brown University who, fresh off a successful shout down of the New York City chief of police, averred that the affair “was a powerful demonstration of free speech.”  As written at the time, the Brown case was a powerful demonstration of free speech in the same way that a mugging is a powerful demonstration of free will.

Similarly, the protesters of which Graves speaks “created debate” only in the sense that, by their actions, they have demonstrated the peril in the growth and nurturing of a mindset and a movement that are, at bottom, fascistic.

Given her inconsequence and modest ability, one might wonder about the need to criticize Graves at all.  Indeed, the criticism here is pretty tame compared to the kind she gets in the (highly recommended) comments her piece attracted in NJ itself.  Moreover, one should hasten to commend (even as Graves objects to) a number of liberal outlets, including Slate, Vox, the Nation, and the Daily Beast, which have roundly criticized the campus thuggery.

Even so, there remain reasons to criticize Graves, most notably because she’s far from alone, and the disease of which she’s a carrier is found not just on campus but off campus as well.

Witness, for instance, the latest chapter in the ongoing attempt by “climate change” activists to isolate and censor climate scientists who say or do things that indicate any degree of skepticism about the subject.

As reported, Swedish climate scientist Lennart Bengtsson’s scholarly paper was rejected for publication by a leading scientific journal after one reviewer criticized it on the grounds that it would provide fodder for climate change skeptics.  Bengtsson’s crime?  He and his four co-authors suggested that climate is less sensitive to greenhouse gases than has been reported by the UN’s IPCC.

When, as now, too many people believe that the ends justify the means, even the most basic of human rights, like freedom of speech, can be targeted by propagandists.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Political Correctness Takes a Turn for the Worse

It’s widely understood that “political correctness” can be employed as a speech-killing device.   But it’s only been in recent times that we’ve been able to witness the full range of its lethality.

From colleges and universities like Fordham, Brown, and Brandeis have come recent, ugly demonstrations of intolerance, based on PC–themed arguments, which have yielded a suppression of “disfavored” speech on those campuses.

Elsewhere, columnist Charles Krauthammer reports that in February, the Washington Post received 110,000 signatures on a petition demanding a ban on any article questioning global warming!

In the midst of all this have come a number of commentaries, mostly written by conservatives or libertarians, decrying this state of affairs, and the apparent acquiescence in it of mainstream entertainment and journalism outfits.

Subjects that have prompted recent censorious acts include opposition to (1) the Affordable Care Act; (2) global warming or “climate change”; (3) same-sex marriage; and (4) abortion.

The role of the media in the growth of the speech police hasn’t been so much a matter of their overt support as of their benign neglect.  So it is that environmental organizations can brand climate change skeptics as “deniers,” whose views are unworthy of circulation or consideration, safe in the knowledge that most in the mainstream media agree with their take on the issue, even if they may not themselves encourage censorship activities.

So too with the Affordable Care Act, same-sex marriage, and abortion, opposition to all of which has been loudly and uncritically attributed to racism, homophobia, and a “war on women,” respectively.

As Krauthammer put it in his piece about the number of signatures on the global warming petition: “The left is entering a new phase of ideological intolerance – no longer trying to win the debate but stopping debate altogether, banishing from public discourse any and all opposition….  Long a staple of academia, the totalitarian impulse is spreading.  What to do?  Defend the dissenters, even if – perhaps, especially if – you disagree with their policy.  It is – it was? – the American way.”

It’s against this backdrop that one reads with considerable relief an article published last week in … Nation magazine!  Written by Michelle Goldberg, and titled “#Cancel Colbert and the Return of the Anti-Liberal Left,” this slim offering is one of the best, and more encouraging, things written about political correctness in recent memory.  It’s one of the best because of the reasoning employed in the piece; it’s important because of its publication in the resolutely left-wing Nation.

But don’t take my word for it.  Read on:

It’s increasingly clear that we are entering a new era of political correctness.  Recently, we’ve seen the calls to #CancelColbert because of something outrageous said by Stephen Colbert’s blowhard alter ego, who has been saying outrageous things regularly for nine years….  Then there’s the sudden demand for “trigger warnings” on college syllabi, meant to protect students from encountering ideas or images that may traumatize them….

Call it left-wing anti-liberalism: the idea, captured by Herbert Marcuse in his 1965 essay Repressive Tolerance, that social justice demands curbs on freedom of expression and that “it is possible to identify policies, opinions, movements which would promote this chance, and those which would do the opposite.  Suppression of the regressive ones is a prerequisite for the strengthening of the progressive ones….”

Note both the belief that correct opinions can be dispassionately identified, and the blithe confidence in the wisdom of those empowered to do the suppressing.

What Goldberg calls “left-wing anti-liberalism,” others might characterize more harshly.  Take, for instance, the example of the group called Media Matters for America, created for no other reason than to attempt to silence conservative voices.  To characterize such a group as merely anti-liberal, or anti-conservative, would seem like a rather dainty way of putting it.

Beyond MMA, there are other groups and individuals, whose actions or theories play a role in the speech suppression business.  Robert McChesney, co-founder of the septic organization misnamed Free Press, comes to mind.

This said, there’s much to be appreciated in Goldberg’s thesis.  For one thing there’s the consoling fact that, for all the cultural and political differences currently roiling the nation, there are certain bedrock principles, like free speech, that people of vastly different perspectives can rally around.

For a nation founded on the principles of popular democracy and the Bill of Rights, this is a good thing indeed.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

If It Walks Like a Duck….

The storms occasioned by the comments of "Duck Dynasty" star Phil Robertson, and A&E’s suspension of him, mirror similar unhappy episodes in the media and on college campuses.  As noted here, and here, and here, and here, examples of similar instances of free speech intolerance are plentiful.

Indeed, colleges and the media, the two institutions that one would expect to be the most supportive of free speech and diverse opinion, are in fact among the least.

Because A&E’s decision was its alone, and not an act of government, this affair is not a First Amendment issue per se. Since the network owns the rights to the program it can do whatever it wants with it. But when such matters arise within companies that are part of the only industry protected by name in the Constitution, one would hope that there would be at least a rudimentary respect for the broader concept of freedom of speech.

This said, it’s understood that in an age in which speech police abound, anything done or said by an institution or individual may become the target of organized protests, and for the media this can mean campaigns directed at their advertisers. This, presumably, was a factor in A&E’s decision to suspend Robertson.

Even so, it’s hard to sympathize with the network.  For one thing, A&E’s apparent decision to air next season those episodes of the show already filmed before they banned Mr. Robertson smacks of transparent hypocrisy.

And then there’s this: Cable TV is filled with reality shows that feature everything from hog hunters and alligator slayers, to catfish noodlers and wilderness dwellers.  Were a magazine reporter to interview any of the stars of these shows on any subject touching on the socio-political, what percent of them  would say something as would give offense to someone?  Maybe all of them?

Of course that doesn’t bother networks like A&E, so long as these people don’t in fact speak about such things. Seen from this perspective, the casts of such shows are like performing monkeys, there to engage in their usual antics while the networks play the accordion.

Not for the first time, one of the most poignant comments to issue about this affair comes from Camille Paglia. As reported in the Daily Caller, Paglia sees in this kerfuffle another indication that “the culture has become too politically correct”:

To express yourself in a magazine in an interview – this is the level of punitive PC, utterly fascist, utterly Stalinist, OK, that my liberal colleagues in the Democratic Party and on college campuses have supported and promoted over the last several decades. This is the whole legacy of free speech 1960s that have been lost by my own party.

One need not agree with Paglia about PC’s roots in order to agree with her about its corrosive effect on the culture.  With respect to matters of free speech, political correctness comes with a smile on its face but jackboots on its feet.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Attacking Free Speech On Campus

The great and widening political divide in the land, marked by hyperbolic rhetoric and personal attacks, is rued by many.  And why not?  Most everyone would agree that ours would be a more serene and nurturing country if the political differences among us were not so great.

But it is what it is, and it’s precisely because of our differences about the correct social, economic, and foreign policies that it’s so important to protect the right to free speech for all, especially in our colleges and universities.

Unfortunately, that imperative is being honored these days more in the breach than the observance, often by student “progressives” who, in gestures not of tolerance or broad-mindedness but of the rankest kind of illiberalism, attempt to shut down campus functions and speakers with whom they disagree.

The latest example is the recent shoutdown of New York City Police Commissioner Ray Kelly, who was invited to speak at Brown University about the city’s “stop and frisk” policy.  After he was met with protesters who wouldn’t allow him to speak, the university pulled the plug.

As reported in the Huffington Post, one of the students who helped organize the protest said that when the university declined to cancel the lecture, “we decided to cancel it for them.”  It was, this student said, “a powerful demonstration of free speech.”

Afterwards, the university president said she would convey to Kelly her profound apologies, but it’s unclear how deeply the commissioner will accept them since at a subsequent campus gathering the professor who invited Kelly to speak apologized for doing so, an act reminiscent of a similar affair at Fordham University when, under pressure from students, faculty, and the administration, the campus Young Republicans were coerced into canceling a speech by conservative writer Ann Coulter.

It’s not clear which is worse, the shouting down of people with differing views, or the Orwellian language employed to justify such actions.  What the students did at Brown was a “powerful demonstration of free speech” in the same way that mugging someone is a powerful demonstration of free will.

Happily, there’s been commentary about this affair that gives hope for the future of free speech.  Two such examples are a Daily Beast piece written by Peter Beinart, and a similar commentary published in the Huffington Post by Greg Lukianoff.

What Beinart and Lukianoff share is a broadly liberal background.  Beinart is a former editor of The New Republic; before becoming president of the Foundation for Individual Rights in Education, Lukianoff interned at the ACLU of Northern California and served as the managing editor of the EnvironMentors Project in Washington, D.C.

In denouncing the student protestors’ actions, Beinart warns against the collapse on campuses of the “vital center” on free speech issues.  “Convinced that freedom of speech is an illusion denied them outside the university gates” he says, “they take revenge in the one arena where the balance of forces tilt their way.”

Writing about, and on the occasion of the 20th anniversary of the publication of, the classic book by Jonathan Rauch titled Kindly Inquisitors: The New Attack on Free Thought, Lukianoff offers this:

Of the many side effects of the retreat from free speech that Rauch predicted 20 years ago, one was that if we privilege feelings over free speech and allow claims of offense to slow or stop meaningful discussion, people will naturally abuse this ultimate trump card.  In the end, the societal bar for what is “offensive” will simply get lower and lower.  This “offendedness sweepstakes,” as Rauch has called it, does not take long to produce terrible or, often, absurd results.

Indeed it does not, as shown by the assault on free speech in the face of triumphant, not to say self-righteous, “political correctness” on the nation’s campuses and elsewhere.

As one commenter poignantly observed in reply to coverage of the Brown affair in Legal Insurrection : “Really scary real-life person prevented from expressing wrong views to delicate flower college students.  Fragile students saved from having to listen to upsetting opinion.  All is well in academia; students thoroughly prepared for real world now.” 

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. A version of this article appeared in the online edition of USA Today on Nov. 6, 2013.

Brown University’s Campus Liberals vs. Free Speech

 By guest blogger PETER BEINART, The Daily Beast, Oct. 30, 2013.    

 “Brown cultivates a spirit of free inquiry,” writes its President, Christina Paxson, on her website.  “Brown prizes the intellectual exchange that is sparked by a diversity of views and experiences.”

Tell that to Ray Kelly.  Yesterday the New York City police chief was prevented from speaking on Paxson’s campus by students angered by the NYPD’s racial profiling.  Those students have good reason to be angry.  Unfortunately, they’re the latest in a long line of campus activists who believe their anger trumps other people’s free speech.

Kelly is only the most recent victim.  In 2002, protesters prevented Benjamin Netanyahu from speakingat Montreal’s Concordia University.  In 2009, activists at the University of North Carolina shut down a planned speech by anti-immigration congressman Tom Tancredo.

There’s something deeper going on here.  On the surface, campuses like Brown’s seem hegemonically liberal.  But in my experience, that apparent consensus conceals a crucial gulf between students and faculty who hold left of center opinions but accept basic norms of fair play and students who consider freedom of speech a scam employed by the powers that be to perpetuate their racism/sexism/classism/imperialism/homophobia.  Convinced that freedom of speech is an illusion denied them outside the university gates, they take revenge in the one arena where the balance of forces tilt their way.  And they thus inject into their own campuses the totalitarian spirit they believe characterizes society at large….

Click here to read the rest of this article at The Daily Beast.

The Daily Beast

                                   

Peter Beinart is the editor of OpenZion.com and writes about domestic politics and foreign policy at The Daily Beast. He is also an associate professor of journalism and political science at CUNY and author of The Crisis of Zionism.

Five Myths About the Federal Shield Law

By guest blogger KURT WIMMER, ESQ., partner at Covington & Burling LLP in Washington, D.C., and chairman of The Media Institute’s First Amendment Advisory Council.

Free speech is the oxygen of the blogosphere.  Blogs, tweets and Facebook posts couldn’t have the profound influence they have rightfully earned in our new and diverse marketplace of ideas without a robust freedom to debate, to challenge, and even to be outrageous.  So it’s hardly surprising that when a congressional debate about protecting confidential sources mentions blogs, it touches a nerve.

That debate concerned the Free Flow of Information Act, which was approved by the Senate Judiciary Committee last month on a bipartisan, 13-5 vote.  If passed by Congress, the Act would be the first statute to protect journalists from being forced to identify their confidential sources in federal court.  It would build on the protections of the First Amendment (because no act of Congress, of course, can minimize those rights) and fix a serious bug in our constitutional system – multiple federal courts now have said that the only way for reporters to protect a confidential source is to go to prison indefinitely.  Many of our federal courts have held that the First Amendment simply does not allow a reporter to protect a confidential source.  That’s hardly a solution that reflects our country’s global leadership in free expression.  Although 48 states and the District of Columbia already provide such protection in state courts, Congress has never passed a federal shield law.  So the Judiciary Committee’s vote should give journalists reason for optimism, as Emily Bazelon of Slate has so persuasively described.

So why did debate on the Act touch such a nerve?  Because when the Act creates a new privilege, it has to define who can claim that privilege, and defining “journalist” in our diverse online environment is a sensitive task.  The way the Act accomplishes this delicate balance earned the endorsement of the Online News Association and other non-traditional journalists.  But this issue also prompted some commentators to spread myths about the Act.  For example, Free Press released a paper this month, “Acts of Journalism: Defining Press Freedom in the Digital Age,” which purports to analyze the bill.  Remarkably, however, the paper didn’t discuss the bill itself; indeed it is unclear whether its author has even read the bill.  Other bloggers, drawing from blogs rather than the Act itself, claimed the Act “is an attempt to carve out certain types of journalism that Congress is uncomfortable with,” and that it is “basically a licensing law.”

It’s time for some level-setting here, based on the novel concept of looking at what the Act actually says rather than simply echoing the conspiracy theories about how Congress is slighting the blogosphere, or about how the Act is weak-kneed and won’t protect national security reporters.  These claims are simply myths that don’t stand up to analysis.  In fact, the Act will protect journalists – whether they report on a blog or the New York Times, and is our very best chance to keep the people who are informing us from being treated as criminals for committing journalism.

Myth: The Free Flow of Information Act does not cover bloggers.

Fact: False.  Bloggers who practice journalism will be explicitly covered by the privilege.

Free Press writes that today’s “pamphleteers use iPhones and blogs instead of carbon paper, but their acts of journalism still deserve protection.”  That is, of course, correct, and the Act’s authors agree.  That’s why the bill explicitly includes people who disseminate news via websites, mobile apps, “or other news or information service (whether distributed digitally or otherwise).”  Although many state shield laws cover only traditional media, such as newspapers and broadcasters, the Senate bill is platform-agnostic and covers all journalists, regardless of how they distribute their news.

Some also believe the Act should cover all Americans, under the theory that anyone could be a “citizen journalist” and the First Amendment requires that everyone be given the same rights as journalists.  This is, of course, a classic “poison pill” advocated by those who really want to kill the bill (including some lawmakers who proposed such an amendment but also voted against the Act).  A privilege for everyone would mean a privilege for no one, because Congress would never pass an act that allows every single citizen in the United States to quash a subpoena.  The Act properly focuses on a medium-agnostic way to make sure it covers all those who are practicing journalism, but a suggestion that it cover all Americans is simply a smokescreen for those who would rather see the bill die.

Myth: Rather than attempting to define “journalist,” the bill should focus on defining the practice of journalism.

Fact: That’s exactly what the bill does.

Tricia Todd wrote in a Huffington Post blog that Congress “needs to craft a law that protects acts of journalism rather than targeting the messengers and intimidating sources.”  Similarly, Free Press discusses the danger of drawing “a line between who qualifies as a journalist for the purposes of the reporter’s privilege or shield-law protections.”  As an example, the paper cites the Second Circuit’s decision in von Bulow v. von Bulow, which held that the reporter’s privilege should focus on the journalist’s activities, rather than occupational title.

There’s just one problem with the Free Press criticism: The Free Flow of Information Act does, in fact, focus on people who practice journalism, regardless of their job title.  The bill covers people who gather information “with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest[.]”  That test comes directly from the Second Circuit’s opinion in von Bulow – the very test that Free Press advocates.

Myth: The bill would require the government to license journalists.

Fact: False.  The argument that “defining a journalist will lead to licensing” is as old as shield laws themselves.  But it’s just false – “journalists” have been defined in other laws dating back to 1900, and federal laws dating back to FOIA.  No “licenses” ever have been created under American law, and none could ever be required for journalism because denying a “license” would be a blatant First Amendment violation.

Rush Limbaugh and other critics have argued that the Free Flow of Information Act would create a de facto licensing system for journalists.  This could never happen because the First Amendment right to publish applies to everyone.  The “government” would not license journalists under the Free Flow of Information Act.  Independent, life-tenured judges would determine whether a journalist is able to claim an additional privilege under the statute to protect a source, but this is not a system of licensing.  It’s a system of determining who can resist an otherwise valid order to testify in federal court, just like courts always have done under the attorney-client privilege, the doctor-patient privilege, and the spousal privilege.

Nonetheless, some believe that once Congress passes a shield law, it will eventually permit only state-approved “journalists” to practice journalism and claim First Amendment protections.  It”s sort of like saying, “if they learn to make metal, they’ll build a bazooka.”  In fact, all of the state shield laws require judges to determine whether an individual is covered, and the federal Freedom of Information Act has defined “news media” for years for purposes of obtaining a fee waiver when requesting federal government records.  None of these laws has led to “licensing” of journalists.  (Any law that would “license” journalists would undoubtedly be unconstitutional and easily struck down.)

Myth: The bill would deprive non-covered journalists of their First Amendment rights.

Fact: False.  The Constitution stands above any law passed by Congress, and this law will not limit the First Amendment.

James Tracy, of Activist Post, wrote that under the Senate bill, “only salaried journalists will be given the free press protections guaranteed to all US citizens by the Constitution.”  Similarly, in a bizarre non-sequitur, the Free Press paper describes non-traditional journalistic activities, as if these activities would somehow be limited by the bill.  In the rare instance where an individual does not receive protection under the statute, that individual retains all of her First Amendment rights.  In fact, Congress does not have the power to pass a bill that would deprive people of their constitutional right to publish.  (And the Senate bill does not require a “salary” to claim its privilege.)

Myth: The bill would not protect national security reporters, because its “national security exception” denies the privilege to any reporting about national security or classified documents.

Fact: False.  The bill’s national security provisions are the most speech-protective to emerge from Congress’s nine years of working on this legislation.

The bill, in fact, would prevent courts or agencies from forcing journalists to disclose sources in national security leak investigations in the vast majority of cases.  The “national security” exception in leak cases is very narrow – it applies only if an independent federal judge finds that the disclosure would materially assist the federal government in preventing or mitigating an act of terrorism or other acts that are reasonably likely to cause significant and articulable harm to national security.  The bill would not require disclosure merely to identify the source for later prosecution.  And the bill explicitly states that the court cannot order disclosure of the source’s identity merely because that source is capable of disclosing more classified information in the future.  This “exception” for national security interests is narrowly tailored, and it will provide significant and important protections for investigative reporting on national security issues.

In all, I recognize that Internet memes are pretty hard to slow down once they begin.  But the meme that Congress is somehow seeking to undermine bloggers and to stop non-traditional journalists from being protected by the First Amendment is simply belied by the facts.  The best remedy might be to do something truly radical – try reading the bill.  And then look at the reporters, such as author and New York Times reporter Jim Risen, who right now are threatened with imprisonment for doing their jobs.  The next step is simple: Support the bill.

Note: Mr. Wimmer represents a 70-member coalition of associations and companies advocating for the Act.  This article appeared in the Huffington Post on Oct. 29, 2013.

Follow Kurt Wimmer on Twitter: www.twitter.com/kurtwimmer

The Revolting Truth

Among the unhappier facts of life in America these days is that more than a few people support the suppression of speech.

The latest evidence of this is the formation earlier this month of a group called Truth Revolt.  Created by David Horowitz, a conservative activist (and erstwhile leftist), TR says its mission is to:

Unmask leftists in the media for who they are, destroy their credibility with the American public, and devastate their funding bases….

Truth Revolt works to make advertisers and funders aware of the leftist propaganda they sponsor – and bringing social consequences to bear to create pressure on such advertisers and funders.

True to their word, the group published a story last week asking advertisers to drop their support of Al Sharpton’s MSNBC program, Politics Nation. If this sounds familiar, that could be because it bears a striking resemblance to the actions of another group, Media Matters. Founded by liberal activist (and one-time conservative) David Brock, MM has targeted advertisers on shows like Rush Limbaugh and cable’s FOX News

Given their past ideological affinities, and their colorful take on things today, it would be amusing to see Horowitz and Brock duke it out in a debate.  But apart from the muckraking both of them relish, there’s a serious problem with campaigns that seek to silence the speech of those with whom they disagree.

Contrary to popular opinion, however, that problem is not that such campaigns violate the First Amendment.  In fact, the First Amendment doesn’t come into play at all here, except to the extent that these organizations’ right to engage in such behavior is protected against any governmental efforts as might seek to curtail them.

Indeed, when groups like Truth Revolt or Media Matters conjure up campaigns against their ideological enemies, and even when they attempt to silence individuals or media companies by attacking their commercial supporters, they are engaging in fully protected constitutional speech. But that doesn’t mean it’s right, or that it’s consistent with any decent regard for freedom of speech.

The First Amendment exists primarily to protect against governmental interference or control over speech, political speech especially, but the point of it is the protection of speech.  To put it another way, we don’t venerate the First Amendment because it protects the First Amendment; we venerate it because it recognizes the value in, and the basic human right of, the expression of one’s opinions.  Indeed, many countries practice a substantial degree of free speech without even having a First Amendment or its equivalent.

Campaigns mounted against the advertisers of disfavored programs or individuals cross the line between criticism and suppression.  The same could be said of certain attempts by third parties to use government agencies like the FCC to censor TV content they dislike.  Petitioning the FCC is legal, but calling for government censorship threatens the freedom of speech of the writers and copyright holders of those shows.

Because it’s been launched just this month, we don’t yet know what kind of reception or impact Truth Revolt will have.  But if the example of Media Matters is any guide, we can be fairly sure that it will scare away some advertisers, and that the media will cover its actions uncritically … or maybe not.

Founded in 2004, and financially supported by people like George Soros and the wealthy group of liberals that comprise the Democracy Alliance, Media Matters has the ear of many mainstream journalists and news organizations.  And given the liberal bent of much of the mainstream media, it may well be that Truth Revolt will have to depend more on the so-called conservative media for coverage of its campaigns, but probably not always, and not without effect.

Though it’s been reported that Democracy Alliance has moved in recent years more in the direction of a partisan organization favoring Democrats, rather than a progressive infrastructure-building group, the irony of its support of outfits like Media Matters can be seen in its description of itself as a group that “strives to foster an open, vibrant democracy.”

How that is consistent with funding an outfit that traffics in the 21st century’s version of book burning is something perhaps only a “progressive” can explain. And it’s something to ponder as the country celebrates Free Speech Week this month.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. A version of this article appeared in the online edition of USA Today on Oct. 17, 2013.

 

Seeking Shared Values Amid the Scandals

Reflecting our fractured political landscape, much of the discussion of the recent scandals erupting from the Executive Branch of government has been thoroughly politicized.

It’s understandable, but it’s also myopic and deeply troubling for those who believe that our civic life depends crucially on free and unfettered speech, and on the shared understanding by all parties that the First Amendment belongs to everyone, even those with whom we disagree.

Some of the things done by the State Department, the Justice Department, and the IRS – no matter who did, or did not, order them – are patently offensive, and can’t be allowed to stand.

When the State Department attributed the atrocity in Benghazi to a YouTube video, they weren’t just making a mistake, they were trafficking in the all-too-familiar refrain that “the media did it.”

When the Justice Department subpoenaed the phone records of AP reporters in search of a leaker – and in a related matter, when a FOX reporter was accused by the FBI of being a co-conspirator in the leaking of a confidential report – they weren’t just exceeding their constitutional authority, they were criminalizing investigative reporting itself.

And when the IRS decided to slow-walk the applications for tax exempt status of conservative groups, because they were conservative groups, and leaked to progressive media outlets information about conservative groups (as with the “Tea Party” applications delivered to ProPublica), they weren’t just injecting politics into what should be a value-free process, they were poisoning the well of what we as a nation have long considered to be the highest and most protected form of speech: political speech.

None of this can be tolerated.  But more important still is that people and organizations of all persuasions condemn it.  That way lies the preservation of our most precious freedom, and the civic virtue of shared values.  If, in the alternative, people in Congress and the press treat these matters as political footballs, we’ll all be the losers.

Going forward it will be easy to tell which path the players have taken.

                                            

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. A version of this article titled "Seeking shared values amid the IRS, AP scandals" was published online in the May 24, 2013 issue of USA Today, and can be viewed here.