Category: Free Speech

Posted on By Kurt Wimmer, Esq.

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

Posted on By Patrick Maines

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.

 

Posted on By Patrick Maines

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.

Posted on By Patrick Maines

Britain Opts To Censor the Press

With its peerage and royals, Beefeaters and such, Britain in the 21st century sometimes seems like a large theme park, but its historical influence on the USA is clear.  From language to culture, and above all to law, what’s happened in Britain hasn’t stayed in Britain.

Which is precisely why that nation’s new press law, which creates by “royal charter” a speech-suppressing media “watchdog,” is so much to be rued.  Briefly stated, the watchdog will have the power to oblige participating media to post apologies and take complaints into arbitration, thereby creating a system of government regulation of the press that hasn’t happened there since 1695.

It is commonly said that the tracks that led to this train wreck were laid by the misbehavior of Britain’s tabloid newspapers, and there’s truth in that.  Caught in the act after years of hacking into private e-mail and phone calls, and bribing public officials, the tabloids acted outside the bounds not just of ethical journalism, but of the law.

But the better explanation for why the British have now endorsed regulation of the press (rather than relying just on the enforcement of criminal laws already on the books) is because that country has no First Amendment. That, and also because there (as here?) there exist large numbers of people who value political correctness, and political advantage, over freedom of speech.

Indeed, though the new press rules are said to have become inevitable given the failures of Britain’s (recently extinct) Press Complaints Commission (PCC), another way of looking at it is to say that the very existence of the PCC inadvertently cleared the way for the more intrusive regulations.

Some years ago there existed in the United States a National News Council (NNC), whose charter was similar to the PCC.  It failed to take root for many reasons, but perhaps most notably because the New York Times’ Abe Rosenthal wisely refused to cooperate with it.  Rosenthal’s concern was that the NNC would fail to satisfy press critics, and that some sort of government program would then be invited to succeed it.

The British have long been accustomed to a significant degree of governmental oversight of their broadcasting companies’ content through what is called Ofcom (Office of Communications), but until now the print media have been spared that oversight.

Though billed by its parliamentary sponsors as a voluntary arrangement, the terms of the new press regulation carry onerous potential liabilities, specifically including “exemplary damages” in court, for media companies that don’t join the quango.  This may even include some companies that are based elsewhere. Indeed, one of the most powerful criticisms – from such as the New York Times and the Committee To Protect Journalists – is that the regulation assumes authority over bloggers and websites, large and small, foreign and domestic.

“In an attempt to rein in its reckless tabloid newspapers,” said the New York Times, “Britain’s three main political parties this week agreed to impose unwieldy regulations on the news media that would chill free speech and threaten the survival of small publishers and Internet sites.”

But the most compelling and powerful criticism has come from The Spectator, the British publication said to be the oldest continuously published magazine in the English language.  As Nick Cohen wrote on March 18:

The regulator will cover “relevant publishers.”  If they do not pay for its services and submit to its fines and rulings … they could face exemplary damages in the courts.  It is not just the old (and dying) newspapers, which the state defines as “relevant publishers” but “websites containing news related material.”

What “news related” material can get you into trouble?  It turns out to be the essential debates of a free society.  Dangerous topics to write about include “news or information about current affairs” and “opinion about matters relating to the news or current affairs.”  Any free country should want the widest possible range of opinions about current affairs.  As of tonight, Britain does not. 

There will be a temptation among many in this country to look past what the British have done as nothing more than the antics, as someone once put it, of an exhausted stock; not to worry about anything similar happening here.  And there’s some truth in that.  Because of our First Amendment and strong case law in defense of it, such regulation is unlikely in this country.

But it’s worth remembering that this happened in Britain at the hands of parliament and that we too have a “parliament,” and regulatory agencies, and that, as in Britain, we have organizations, like the cynically misnamed Free Press, that are constantly pushing for an expansion of government oversight of the media.

Thanks to the Founding Fathers we have some additional protection against the kind of thing that’s just happened in Britain, but vigilance is required, now more than ever.

                                             

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 "Keep U.K. media rules out of U.S." appeared in the print and online editions of USA Today on April 23, 2013, and can be viewed here.

Posted on By Patrick Maines

Internet Freedom in Peril

Not for the first time, FCC Commissioner Robert McDowell has issued a clarion call to all those interested in maintaining a free and open Internet.

In testimony before the House last week, Comm. McDowell made the following points:

(1)  Proponents of multilateral intergovernmental control of the Internet are patient and persistent incrementalists who will never relent until their ends are achieved;

(2)  The recently concluded World Conference on International Telecommunications (WCIT) ended the era of an international consensus to keep intergovernmental hands off of the Internet in dramatic fashion, thus radically twisting the one-way ratchet of even more governmental regulation in this space;

(3)  Those who cherish Internet freedom must immediately redouble their efforts to prevent further expansions of government control of the Internet as the pivotal 2014 Plenipotentiary meeting of the International Telecommunications Union quickly draws near;

(4)  Merely saying “no” to any changes is – quite obviously – a losing proposition; therefore, we should work to offer alternate proposals such as improving the long-standing and highly successful, non-governmental multi-stakeholder model of Internet governance to include those who may feel disenfranchised; and

(5)  Last year’s bipartisan and unanimous congressional resolutions clearly opposing expansions of international powers over the Internet reverberated throughout the world and had a positive and constructive effect.

Once again, a cogent and persuasive presentation by the FCC’s MFC (Most Favored Commissioner). Read the whole of his testimony here.

                                               

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

 

Posted on By Patrick Maines

The ITU and the Internet

In 1971, when China was first admitted to the United Nations, William Rusher quipped that it was "a case of loosing a China in the bullshop.”  Such is the first thought that comes to mind in reflection on the latest bit of mischief to issue from the UN, in this case courtesy of that body’s International Telecommunications Union (ITU).

The second thought is of the power of precedents in law and policymaking.  Policywise, precedents can be likened to the engine of a train, the caboose of which is incremental or galloping movement in the same direction.

So the take-away from the vote last week in Dubai by 89 countries, including such freedom-loving regimes as those of China, Russia, Iran, and Venezuela (you know, the usuals), is that it’s just a matter of time before many of those same countries claim the right, under the UN charter, to control the Internet through such things as filtering, identifying users, and surveillance.

Defenders of last week’s vote, like the head of the ITU, disingenuously claim that “The conference was not about Internet control or Internet governance….  And indeed there are no treaty provisions on the Internet.”  The key word here is “treaty,” since tucked away in the appendices, as reported by Ars Technica, is this sentence:

[WCIT-12 resolves to invite member states] to elaborate on their respective positions on international Internet-related technical, development and public-policy issues within the mandate of ITU at various ITU forums including, inter alia, the World Telecommunications/ICT Policy Forum, the Broadband Commission for Digital Development and ITU study groups. 

So for the first time, the precedent has been established that the UN is an appropriate body for the deliberation of policy issues affecting the Internet.  Never mind that this resolution is not binding on those countries, like the United States, which voted against the International Telecommunications Regulations.  The point survives: From this time forward the UN’s ITU will provide cover for those nations that wish to wall their citizens off from the open Internet.

Nor is this the only dangerous precedent to be noted in the context of the WCIT.  As warned two years ago by Ambassador Philip Verveer, the adoption by this country of so-called “net neutrality” regulations itself provides an opportunity for international mischief making.

As Robert McDowell, than whom no other FCC commissioner in memory has been right more often, put it in congressional testimony earlier this month:

Should the FCC’s regulation of Internet network management be overturned by the court, in lieu of resorting to the destructive option of classifying, for the first time, broadband Internet access services as common carriage under Title II, the FCC should revive a concept I proposed nearly five years ago – that is to use the tried and true multi-stakeholder model for resolution of allegations of anti-competitive conduct by Internet service providers….

If we are going to preach the virtues of the multi-stakeholder model at the pending World Conference on International Telecommunications (WCIT) in Dubai, we should practice what we preach.  Not only would the U.S. then harmonize its foreign policy with its domestic policy, but such a course correction would yield better results for consumers as well. 

                                               

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

 

Posted on By Patrick Maines

Fordham’s Take on Freedom of Speech

An important piece in the Wall Street Journal, profiling the president of a student free-speech group called the Foundation for Individual Rights in Education, spotlights the challenges facing free speech on the nation’s college campuses.

A recent incident at Fordham University, mentioned in the article, provides a good example.  There, the university’s College Republicans invited conservative columnist Ann Coulter to speak on campus.  Student groups opposed to Coulter and her politics protested the upcoming event, and on Nov. 9 the university’s president, Rev. Joseph McShane, S.J., weighed in on the matter in a letter addressed to the student body, faculty, and alumni:

To say that I am disappointed with the judgment and maturity of the College Republicans, however, would be a tremendous understatement.  There are many people who can speak to the conservative point of view with integrity and conviction, but Ms. Coulter is not among them.  Her rhetoric is often hateful and needlessly provocative – more heat than light – and her message is aimed squarely at the darker side of our nature.  

In the same letter, Father McShane said that the university would not stop Coulter’s appearance owing “to the Jesuit tradition of fearless and robust engagement.”  This tradition was apparently of scant comfort to the College Republicans, however.  Faced with the attacks issuing from students, faculty, and the university president, the CRs disinvited Coulter and apologized for having invited her in the first place, a development that McShane quickly and lavishly praised:

Late yesterday, Fordham received word that the College Republicans, a student club at the university, has rescinded its lecture invitation to Ann Coulter.

Allow me to give credit where credit is due: the leadership of the College Republicans acted quickly, took responsibility for their decisions, and expressed their regrets sincerely and eloquently.  Most gratifying, I believe, is that they framed their decision in light of Fordham’s mission and values.  There can be no finer testament to the value of a Fordham education and the caliber of our students.

Yesterday I wrote that the College Republicans provided Fordham with a test of its character.  They, the University community, and our extended Fordham family passed the test with flying colors, engaging in impassioned but overwhelmingly civil debate on politics, academic freedom, and freedom of speech.

Somewhere Thomas Jefferson weeps, while George Orwell is smiling.

                                               

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

 

Posted on By Patrick Maines

Free Speech and That YouTube Video

In an age when, for many, political correctness (not to mention political opportunism) trumps free speech, one should be wary of assertions that specific kinds of speech have precipitated criminal conduct.

We saw false claims like this in the case of the shooting of Rep. Gabrielle Giffords (D-Ariz.), when such as the New York Times’ resident shrieker, Paul Krugman, immediately tied the crime to Republican and Tea Party rhetoric.  And we have seen it again in the wake of the murders in Libya, and the riots in other Arab countries.

The immediate reaction to the killing of the American ambassador, as announced by the State Department and the White House, was that it was an Arab reaction to a cheesy video distributed by YouTube called “Innocence of Muslims.”

Reminiscent of the Giffords shooting, though, it’s now clear that the YouTube video had nothing to do with the murders in Libya, and that if it had anything to do with subsequent anti-American demonstrations elsewhere in the region it was likely because of the prominence the American government assigned to the video in the first place.

Apart from the absence of any connection between the Libyan murders and the YouTube video, there is the question of what should be the reaction of American officials and American citizens, media included, if and when something like a YouTube video does lead directly to murderous acts here or abroad?

The answer to that question may not resonate with everyone, but it’s not difficult either.  All that’s needed is some knowledge of the First Amendment and of First Amendment case law.  If the speech in question is protected, as was clearly the case with the YouTube video, the correct response would be to regret the loss of life and to demand that those responsible be brought to justice.  If, as with “Innocence of Muslims,” the offending material was of little or no value in its own right, criticism of the material might also be appropriate.

But in all events – and particularly where the crimes committed were in foreign lands without free speech – it should also be said by our public officials that ours is a country that greatly values and protects the free-speech rights of individuals, even when such speech gives legitimate offense.

The administration’s early blaming of the Libyan killings on the YouTube video was either a rush to judgment or, worse, an attempt at the kind of misdirection as would guide the ensuing commentary away from questions about the success of U.S. policy in the Mideast and/or the adequacy of our intelligence and security operations.

Perhaps the single worst aspect of this affair was the attempt by the White House to persuade Google (which owns YouTube) to take down the offending video.  The administration’s press spokesman, Jay Carney, says they asked Google only to look into whether the video complied with YouTube’s terms of service, as though that is a distinction with a difference.

It is not, of course, and Google resisted the arm twisting and kept the “Innocence of Muslims” trailer on YouTube, though the company did take it down in a few Arab countries, a call that was and is entirely its to make.

The hounding of free speech is done these days not only by the right, but also, and more dangerously, by the left and by the adoption and overuse of terms like “hate speech.”  The threat in this becomes a matter of greater concern when public officials get in on the act.

                                               

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

Posted on By Harold Furchtgott-Roth

Defending the First Amendment in the 21st Century

By guest blogger HAROLD FURCHTGOTT-ROTH, senior fellow at the Hudson Institute and a former commissioner of the Federal Communications Commission.

On September 11 and the following days, violent mobs attacked Americans and American property in Cairo, Benghazi, and cities throughout the Middle East.  Americans were murdered.  Embassies were ransacked.  Americans in the region, and even here at home, were threatened.

Many innocent victims have fallen in the path of recent violence; the First Amendment should not be among them.  Make no mistake: The violence around the world is aimed not at our country as an economic power, but at America as the champion of free speech.  Make America cower in fear, make us seek to silence unpopular voices, make us censor speech, and the First Amendment is not only destroyed.  So too is America.

America was founded not to allow mobs to destroy everything in their path, but for the opposite effect.  America is the triumph of the individual over the government, and with it the triumph of individual views, individual speech, and even repugnant individual views.  In America, we are protected from mob rule.  Those who truly hate America seek to destroy that triumph of the individual.  To see those who would destroy America, simply look at the mobs on television.

The motivations for each member of a violent mob need not be the same.  Some individuals may have a long-standing hatred of America.  Others may have been stirred to violence by an incendiary speech.  In the demonology of anti-American violence, the date September 11 is an unlikely coincidence.

But we in America have been repeatedly told a different story for the cause of violence against us.  We are told that the violence was sparked not by general anti-Americanism but by one video, supposedly made in America, and posted on one website.  The purportedly offending video was not produced by our government or placed on a government website.  So we are told, and perhaps even expected to believe, that a single video was the flame that ignited millions of people to protest, sometimes violently, against the United States.  The very story is an offense not merely to common sense but to the First Amendment.

The facts don’t support the story.  The Internet has more than 600 million websites, or about one for every 10 people in the world.  YouTube alone, the site of the allegedly offensive video, has more than 100 million videos.  For nearly 20 years, the Internet has made available more than enough content to offend just about anyone.  Yet over the same period, even the most virulently anti-American groups have not rationalized violence against America based solely on the content of a specific website.  Not until now.

Also troubling is the response of our government.  A clever government would not be ensnared in debates over the contents of documents or the views of individuals.  But rather than steer clear of judgments that impinge the First Amendment, our government has, likely unintentionally, fallen into a trap of taking positions that at best are troubling for the First Amendment.

For example, our embassies and even the State Department have issued statements that place our government in the awkward position of having opinions about the content of videos and even the intent of individuals.  Before the initial attack on September 11, the Cairo embassy issued the following statement: “The Embassy of the United States in Cairo condemns the continuing efforts by misguided individuals to hurt the religious feelings….”  The statement begs the questions of “Which efforts” and “Which individuals?”  The answers to these questions are not positions that our federal government should be taking.

Two days later, Secretary of State Hillary Clinton did little better when she stated: “To us, to me personally, this video is disgusting and reprehensible.  It appears to have a deeply cynical purpose to denigrate a great religion and provoke rage.  But as we said yesterday, there is no justification – none at all – for responding to this video with violence.”

First, Secretary Clinton appears to conclude that the video was in fact the cause of the violence.  Are we really to believe that but for that video, no violence would have occurred, no Americans would have been murdered, and peace would prevail in the world?

Second, while she is careful to state that it is her personal view that the video is “disgusting and reprehensible,” Secretary Clinton finds it difficult to separate her personal views from the views of the Office of the Secretary of State, an office that now appears to have views about the content of at least one video.

Perhaps even more troubling is the slippery slope the government places itself on when it comments on the content of publications, whether videos, books, magazines, newspapers, or Internet sites.  Even if the First Amendment permitted such governmental review and judgment – which it does not – does our government want to be in the position of having views about videos?

Not all offensive videos are low-budget and of poor quality.  The 1915 Hollywood film “Birth of a Nation” is repugnant in many ways.  It is commercially available on the Internet.  Does our government have a view about this movie, or any of the other of hundreds of millions of videos on the Web? 

Rather than proudly trumpet the First Amendment, the beacon of hope around the world for countless downtrodden people, including those who cannot practice religion at home, Secretary Clinton seems mildly apologetic about it: “I know it is hard for some people to understand why the United States cannot or does not just prevent these kinds of reprehensible videos from ever seeing the light of day.”

Yet people around the world fully understand why the United States does not “prevent these kind of reprehensible videos.”  There is no mystery.  The answer is not technology.  The answer is the First Amendment, at the core of our national values.  When the day comes that America submits to mob rule and begins censoring speech, America will have been destroyed.  And with it, the hopes and aspiration of people around the world who yearn for nothing more than the protection of the First Amendment, rights that are present nowhere else in the world.

In recent days, anti-American riots have continued around the world, purportedly aimed at one video.  International figures, even some considered “allies” of the United States, have asked us to prosecute those involved in the video.  President Morsi of Egypt is one of those leaders.  The head of Hezbollah in Lebanon has asked for continued protests against the United States over the video.

Amazingly, practically every American has seen images of a man, purported the producer of the offending video, embalmed in clothes and in police custody.  News reports tell of government officials looking into the details of the offending video.  Is this possible under the First Amendment?

One might expect ordinary Americans to stand up in outrage to the demands of foreign mobs to dictate censorship in America.  The First Amendment is under attack not from home but from abroad. 

In 1952, after being interrogated by the House Committee on Un-American Activities, Arthur Miller wrote The Crucible, one of the most powerful plays in the American canon.  It tells the story of individuals standing up to mobs and associated intimidation. 

But the reaction today is largely silence.  Many Americans join the mob.  Government officials denounce the video.  Law enforcement officials interrogate people associated with the video.  Media accounts rarely comment on the rights of individuals.

It is not merely the American media that have been silent.  The voices of America’s political leadership have provided no full-throated defense of the First Amendment.  We should not apologize for it.  We should not shrink from it.  What distinguishes America and what makes us the envy of the rest of the world is the First Amendment.  We should be proud of it.  When our loyal and dedicated government servants are murdered abroad, and murdered purportedly for America’s First Amendment, we should at least mention the liberties they helped protect.

President Lincoln in 1863 noted that the Civil War was a test of “whether that nation, or any nation, so conceived and so dedicated, can long endure.”  At the time, he was speaking of the proposition that all men were created equal.  Today, he might speak of whether a nation conceived and dedicated to the First Amendment can long endure.  We are engaged in that war now.  And we are not yet winning.

                                   

Mr. Furchtgott-Roth can be reached at hfr@furchtgott-roth.com.  The opinions expressed above are those of the writer and not necessarily of The Media Institute’s Board, contributors, or advisory councils. 

Posted on By Patrick Maines

Chick-fil-A and City Officials: A Whole Lotta Clucking Goin’ On

Ah, political correctness. It never disappoints.  Take, for instance, the latest eruption of civic broadmindedness brought on when the president of the restaurant chain Chick-fil-A professed his personal embrace, based on his religious views, of traditional marriage.

Outraged by the effrontery, the mayor of Boston and a Chicago alderman (Messrs. Menino and Moreno, respectively) immediately announced that they would ban the opening of the chain’s restaurants in their jurisdictions.

Never mind that Chick-fil-A had never practiced discrimination among its employees or customers, whatever their sexual orientation; it was enough for the mayor and the alderman that the head of the company expressed himself on this subject in a way that might give offense to those who disagree with him.

Alderman Moreno is especially instructive.  Having earlier said he decided to pull the plug on the restaurant after learning about the company president’s “bigoted and homophobic comments” in a Baptist publication, Moreno has now pivoted, under pressure, to saying that he’s opposed to the opening of a restaurant in his ward because of “traffic concerns.”

There’s been an unfortunate unevenness in recent years in the way that the media generally have opined on free speech and First Amendment issues. In the case of the Supreme Court’s decision in  Citizens United, for example, one has to look far and wide to find approving newspaper editorials, despite the fact that it was as pure a First Amendment case as has ever come before the Court.

Much of the media have also shown a kind of benign neglect when it comes to the myriad examples of campus “speech codes.”

This time, though, the nation’s editorialists got it right! From such journals as the Los Angeles Times, the Chicago Tribune, and the Boston Globe has come a virtual symphony of criticism of the words and actions of Menino and Moreno, and all of it based on the First Amendment.  As the Times put it: “Public officials have a responsibility to carry out their ministerial tasks fairly and evenhandedly – and to uphold the principle of free speech – whether or not they like a business executive’s social or political stances.”

Makes one proud to be the head of a group like The Media Institute.

                                               

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