The First Amendment and Free Speech Under Assault

If you’re not alarmed by the assault on the First Amendment and free speech generally, you’re not paying attention.

Consider the list of offenses committed by the government.  They range, in recent times, from the Department of Justice’s spying on the phone records of reporters at the Associated Press, to the National Security Administration’s domestic call tracking, and from the IRS’s targeting of conservative nonprofit organizations, to the suggestion by the ranking Democrat on the Federal Elections Commission that political speech on the Internet should be regulated.

Other examples include the Obama Administration’s resistance to Freedom of Information Act requests, as documented in a study by the AP, and the issuance, by the CIA, of a subpoena to James Risen of the New York Times, demanding the identity of one of his confidential sources.

The party-line passage, by the Federal Communications Commission, of its so-called “Net Neutrality” regulations is another example.  In addition to inaugurating the regulation of the formerly unregulated Internet, the Title II approach adopted is certain, as FCC Commissioner Pai has warned, to open the door to attempts to use this regulation for purposes that, both intended and unintended, undermine free speech.

The most recent example of governmental speech suppression is the subpoena served on the online version of Reason magazine by the U.S. Attorney’s Office for the Southern District of New York.  The subpoena, which for a time came with a gag order, demanded to know the identity of a handful of commenters that, angry about the life sentence handed down to the founder of the drug trading site, Silk Road, wrote denunciations of the judge who presided over the trial.

An example of one of the comments that occasioned the U.S. Attorney’s subpoena for the identification of that commenter: “I hope there is a special place in hell reserved for that horrible woman.”

So there it is.  Your taxpayer dollars at work!  And not just by a few bureaucrats, but by a veritable army of them: DOJ, NSA, CIA, IRS, FEC, FCC.  As Everett Dirksen might have put it, an agency here and an agency there, and pretty soon you’re talking about some real government.

Making matters worse and infinitely more depressing is the assault on free speech being committed by people wielding the bludgeon of political correctness, a concept that from the beginning symbolized the very opposite of free speech.

The venues of choice for the PC speech police are mainly the media (social media especially) and college campuses, and 2014 was a banner year for such stuff.

Take, for instance, the petition generated by two “climate change” groups in February of last year.  Having collected 110,000 names, the groups demanded that the Washington Post stop publishing “editorial content denying climate change.”  The Post refused, but the Los Angeles Times happily adopted a policy that was similar to what the groups were demanding.

And then, of course, there are the campuses.  Last year’s examples of campus “disinvitation” campaigns against speakers such as Ayaan Hirsi Ali, Condoleeza Rice, and Christine Lagarde have been widely chronicled, but the beat goes on.

In its 2015 Spotlight on Speech Codes, the Foundation for Individual Rights in Education (FIRE) found that 54 percent of some 400 public colleges and universities it sampled maintain speech codes that violate the First Amendment.

FIRE’s response to this state of affairs has been to create a free speech litigation program that threatens offending colleges and universities with legal action, and the organization has had some notable successes.  But it’s doubtful that legal action alone will put the brakes on a concept that’s never depended on the law for its foundational principles or propagation.

Incubated on campus by activists and ideologues, and disseminated through the media, half-baked theories like “white privilege” and “microaggressions” and practices like “trigger warnings” and “speech codes” need to be challenged in those same venues by arguments based on logic, history, and science.

Absent this, and without congressional action to rein in the out-of-control federal agencies, free speech in the United States is at risk of becoming a dead letter; extant in the Constitution but without force or meaning.

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

Free Speech Week: Not a Moment Too Soon

With two and a half months still to go, 2014 has been one of the toughest years on record for freedom of speech in the USA.

In February, for instance, two “climate change” groups collected 110,000 names on a petition they then sent to the Washington Post.  The petition demanded that the Post stop publishing “editorial content denying climate change.”  In a press release issued by one of the groups, columnists George Will, Charles Krauthammer, and the Volokh Conspiracy blog were singled out by name as “climate change deniers.” Happily, the petition went nowhere, though the Los Angeles Times has adopted an editorial stance similar to what the petitioners demanded of the Post.

In March, Kickstarter, the crowd-funding site, demanded that the producers of an anti-abortion film about convicted abortionist Kermit Gosnell remove from their proposal vivid language about the way Gosnell went about his work. Kickstarter said the language in the proposal went against its “Community Guidelines.”  One day after the producers refused, and loudly took their proposal to another crowd-funding site, Kickstarter said it would allow the proposal, and later said it was amending its guidelines.  Too late.  To date the film has raised over $2 million on the competing crowd-funding site, Indiegogo.

April was an especially busy month for the nation’s speech police.  On April 3, Brendan Eich resigned his position as CEO of Mozilla Corporation.  Eich had been roundly attacked on social media, and by LGBT activists, for a contribution he made six years earlier to California Proposition 8, which sought to establish that only a marriage between a man and a woman could be recognized as valid in that state.

Five days later, on April 8, Brandeis University reversed its decision to award an honorary degree to women’s rights activist Ayaan Hirsi Ali, following heated criticism of the award to her by the Council on American-Islamic Relations and the Arab American Institute.  As a young Muslim woman, Hirsi Ali endured genital cutting and later wrote the screenplay for the film “Submission,” which was critical of the way Muslim women are treated. Defending the decision, the president of Brandeis said that Hirsi Ali was free to come to the campus “to engage in dialogue” but that there is a difference between having a provocative speaker on campus and awarding an honorary degree.

Things proceeded apace in May, with Condoleezza Rice and Christine Lagarde being targets of opportunity for local censors.  The former secretary of state withdrew from a commencement address at Rutgers after student and faculty protesters criticized her role in the Iraq war.  (We can only wonder if, a few years from now, the same students and faculty will protest campus addresses by members of the Obama Administration for their role in the bombing of ISIS.)

And Lagarde, the managing director of the International Monetary Fund, withdrew as commencement speaker at Smith College following the appearance of an online petition objecting to her role, at the IMF, in strengthening “imperialist and patriarchal systems.”

The media’s own PC patrols were out in June, as the struggling St. Louis Post-Dispatch used its mischaracterization of a George Will column as an excuse to drop the columnist altogether.  Will had argued, in a piece titled “Colleges become the victims of progressivism,” that colleges were opening themselves up to litigation in cases where allegations of sexual assault deny due process to those accused.  The paper’s editorial page editor, no friend of conservatives, averred that Will’s column caused hurt among people in the social media and some female friends of his … or that Will was past his prime, take your pick.

The months of July and August were relatively free of such fireworks, presumably because the PC too need a vacation, but the current month has already been marked by more of the same.  On Oct. 6, for instance, Scripps College, a women’s liberal arts institution and one of the five undergraduate colleges that comprise Claremont Colleges, disinvited George Will from delivering an address as part of a program that was designed to bring prominent conservatives to the Scripps campus.

Will’s offense?  The same column he wrote last summer about sexual assault on campus.  In the inscrutable words of the Scripps president: “Sexual assault is not a conservative or liberal issue.  And it is too important to be trivialized in a political debate or wrapped into a celebrity controversy.”  One assumes, on reading such stuff, that the Scripps president was engaging in some kind of liberal arts equivalent of speaking in tongues.

Interestingly, the Scripps president doesn’t appear to honor the distinction made by the Brandeis president – that there’s a difference between allowing someone to speak on the one hand, and giving that person an award on the other – but who’s to question disagreements between such giants?

Ensuring that October will not go out like a lamb, no matter what happens from now until the end of the month, comes the latest brouhaha, an attempt by the City of Houston to subpoena sermons delivered in five area churches by pastors who oppose passage by the Houston City Council of the Houston Equal Rights Ordinance (HERO).

After the city disqualified a petition by opponents to put HERO to a referendum, some of the petition organizers filed a suit against the city; in response Houston and its pro bono attorneys subpoenaed the sermons and other information from the five churches, though none of the five was among the groups suing the city.

It is (or was) the city’s position that the subpoenas are a legitimate tactic in the discovery process, but since the mayor and the city attorney have now reversed themselves and say that they think the subpoenas are overbroad, it’s not at all clear where this matter will end, most likely in the withdrawal or quashing of the subpoenas.

October 20 begins the start of the annual celebration called Free Speech Week.  As demonstrated by events to date this year, one hopes it will grow and gain traction.

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

One Toke Over the Line

I know the law won’t be forgivin’,
But that’ll be the choice I made,
I used to farm for a livin’,
And now I’m in the growin’ trade.
— Levon Helm/Larry Campbell, “Growin’ Trade”

California’s Proposition 19, formally known as the “Regulate, Control & Tax Cannabis Act,” was a ballot initiative that would have legalized diverse kinds of marijuana-related activities and permitted local governments to tax the sale of the drug.  Despite early poll results showing that a majority approved of the initiative, it was rejected by voters on election day last week, 54 to 46 percent.

Contrary to the prevailing meme that everything political in the United States is predictably conservative or liberal, red state or blue, the story of Prop 19 is the story, among other things, of unexpected alliances and media diversity, and proof that complex issues can be covered in ways that do justice to that fact.

Powerful arguments, both pro and con, can be and were made in the debate over the initiative.  Those who favored it argued that it would yield an important new source of revenue in a state that is on its financial uppers; that it would result in significant savings due to the smaller number of individuals incarcerated for marijuana-related offenses; and that it would do damage to the Mexican drug cartels that provide much of the marijuana used by Californians and others.

Those who were opposed to Proposition 19 argued that it would not yield the financial benefits advertised; that it would greatly increase marijuana consumption with concomitant ill effects all around; and that it was made unnecessary by the earlier passage, and signing into law, of S.B. 1449, which decriminalized the possession of less than an ounce of marijuana.

Further complicating the matter, and an aspect of the initiative used in argument by the opposition, is the fact that, whatever California law might be on the subject, federal law makes possession a crime, thereby conjuring up an image of California cops looking the other way as federal agents continue to make arrests in the state.

Which is just to say that much of the debate about Prop 19 turned on the perceived strengths and weaknesses of specific aspects of the initiative, rather than on the larger question of whether citizens could or should be allowed to grow and use marijuana at all – a perspective perhaps mooted by the fact that a great many Californians are growing and using even now.

As drafted, the initiative would have allowed Californians to cultivate, for their personal use, 25 square feet of marijuana in their back yards, but enforcement, regulation, and taxation would be left up to the state’s 478 cities and 58 counties.  What confusion might result, some wondered, when abutting jurisdictions had different laws and regulations?  If, for instance, the standard was 25 square feet in one town but 30 in another, might this not make matters confusing for law enforcement?  Not only would they need to know at all times the different marijuana laws of abutting jurisdictions, but in busting the perps they’d need tape measures as well as guns and handcuffs.  Or what about the guy who scoped out his marijuana garden while using the product, such that it came out not to 25 square feet but 25 square yards?  (Well, that dude could just kiss his sweet cannabis goodbye.)

So anyhow, in this as in other ways, it isn’t easy being a Californian.  Their difficulties were compounded not just by the complexities inherent in Prop 19, but also by the unfamiliar alliances. Much of the state’s Democratic Party organizations (and all of the Libertarian organizations) came out in support of the initiative, but all of the major party candidates for statewide office – Republican and Democrat – opposed it.  (Even in San Francisco, for instance, Nancy Pelosi opposed the measure, while her Republican opponent supported it.)

Happy to report, this strange-bedfellows phenomenon extended even to the state’s leading newspapers.  Though there were some, like the San Diego Union, which editorialized in familiar ways (“No to ganja madness”), there were many who took what might seem like unexpected positions on the subject.  The conservative Orange County Register, for instance, though never taking an official position on the initiative, twice ran editorials that clearly leaned in favor of Prop 19.

Meanwhile, the more liberal Los Angeles Times and San Francisco Chronicle, along with the Sacramento Bee and the Mercury News, came out in opposition to the measure.  In all events, though, the truly encouraging thing about the media coverage is the thoroughness of it.  Despite the many complexities and competing views, the state’s newspapers did a good job of providing their readers with a comprehensive understanding of the nature and potential consequences of the initiative, intended and unintended alike.

That the vote went the way it did is a subject about which honest people can disagree, but there is something deeply refreshing about media coverage of a complex issue in which journalists and editorialists provide a window on all points of view, and illuminate the best arguments of the competing parties.  Were that the standard practice with respect to media coverage of all complex issues, journalism would enjoy a spike in its reputation and the nation would be better served.

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