By Kent R. Kroeger (February 23,2021)
OK, maybe speech and press freedoms aren’t ‘over,’ but they are damn well in decline. And this is despite the U.S. Constitution’s First Amendment being quite clear on the extent the government can limit free speech and the press:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Unlike the Second Amendment where its use of a prefatory clause (“A well regulated militia, being necessary to the security of a free State…”) all but guarantees a variety of legal interpretations, the First Amendment appears cut-and-dried — Congress shall make no law…abridging the freedom of speech, or of the press.
In practice, a more temperate view on the First Amendment has evolved in the courts that, while acknowledging the government is highly constricted in what it can do to limit speech, allows some government-imposed limits on speech. For one, you can’t put lives in danger by yelling ‘Fire!” in a crowded theater, to loosely paraphrase the opinion of Supreme Court Justice Oliver Wendell Holmes, Jr.
In Schenck vs. U.S. (1919), the U.S. Supreme Court ruled that the First Amendment could be restricted if the words spoken or printed represented to society a “clear and present danger.” In upholding criminal convictions for people who published opinions urging draft-age men to resist induction into the military prior to World War I, the Edward D. White-led Supreme Court determined that speech intended to support crimes — i.e,. resisting the draft — represented a “clear and present danger” to the country and could be punished.
This is no time to forget about Julian Assange
At the behest of the U.S. Justice Department, Wikileaks founder Julian Assange languishes in a U.K. prison under a comparable logic derived from the 1917 Espionage Act, under which Assange was indicted, in part, for his role in obtaining U.S. secret documents. Though, the Justice Department indictment also included charges for publishing U.S. secret documents that put people’s lives at risk.
In fairness, Assange’s lawyers counter those latter charges by noting Wikileaks asked for help from U.S. officials to comply with an Obama White House request to redact the names of informants before publication, but U.S. authorities refused to assist. His lawyers also offered evidence and witness testimony to the U.K. court demonstrating that Wikileaks withheld 15,000 reports to protect informants and that significant redactions occurred within the documents that were released.
Whether or not they agree with the methods used by Assange and Wikileaks to obtain documents exposing questionable activities by the U.S. military in Afghanistan and Iraq — and I, for one, have written strong criticisms of Wikileaks’ “cast-a-wide-net” approach to publishing whistleblower information — First Amendment scholars have serious concerns about U.S. press freedoms if Assange is, in the end, convicted of espionage in a U.S. court.
According to Jameel Jaffer of the Knight First Amendment Institute at Columbia University, if the Justice Department wins its case against Assange, such a precedent could criminalize what are today common activities among investigative journalists.
“The charges rely almost entirely on conduct that investigative journalists engage in every day,” Jaffer told The New York Times. “The indictment should be understood as a frontal attack on press freedom.”
A former Assange colleague and open critic of his methods, Pulitzer Prize-winning journalist Laura Poitras, recently warned in a Times editorial what could happen to U.S. press and speech freedoms should Assange be convicted:
It paves the way for the United States government to indict other international journalists and publishers. And it normalizes other countries’ prosecution of journalists from the United States as spies.
To reverse this dangerous precedent, the Justice Department should immediately drop these charges and the president should pardon Mr. Assange.
Since Sept. 11, this country has witnessed an escalating criminalization of whistle-blowing and journalism. If Mr. Assange’s case is allowed to go forward, he will be the first, but not the last. If President-elect Joe Biden wants to restore the “soul of America,” he should begin with unequivocally safeguarding press freedoms under the First Amendment, and push Congress to overturn the Espionage Act.
Repealing or significantly amending the Espionage Act will never happen in today’s political environment. It would require taking too much power away from the U.S. government and if there is one thing in secret establishment Democrats and Republicans can agree on, it is keeping power firmly in the hands of the government, particularly when under the pretext of national security.
But what could be devalued in pursuing such a dramatic remedy for declining press freedoms are the significant Supreme Court rulings since the Espionage Act that have already set sufficient precedents for protecting journalists (and all Americans) from unconstitutional prosecutions. For example, the Schenk ruling was already partially overturned in 1969, when the Supreme Court ruled in Brandenburg v. Ohio that the government’s ability to limit speech was limited to speech intended to spark an imminent lawless action. And only a few years after the Brandenburg case, the Supreme Court issued their landmark ruling in New York Times Co. v. U.S. (1971) in which they decided the First Amendment superseded any executive privilege to maintain the information secrecy, even if for national security purposes.
Establishment Democrats applaud Big Tech speech restrictions
What these Supreme Court rulings have in common is that they address the government’s ability to limit the speech of private citizens. They say nothing about the ability of private entities to limit speech under their domain.
Fast forward to the present, we are witnessing — post-Capitol riots — a level of speech suppression heretofore rarely seen in our nation’s history (World War I’s Espionage Act and pre-World War II’s Smith Act exemplify among our government’s most brazen acts in modern times to restrict speech).
The political left gleefully reminds us that the First Amendment does not prevent private companies from limiting speech on their platforms.
Writes Jennifer Huddleston, Director of Technology and Innovation Policy at the American Action Forum, “Whether you applaud or detest the recent decisions made by online platforms, it is important to remember that these are private actors and not the government.”
On this point, Huddleston and other apologists for Big Tech-sourced censorship are correct.
However, their smug satisfaction may be illusory as some legal scholars persuasively argue there are legitimate legal grounds upon which to constrain the power of social media companies (“Big Tech”) to suppress speech.
A common argument for constraining this power comes from the “company town” perspective which cites the Supreme Court’s ruling in March v. Alabama for support. In that ruling, the Court held that private citizens in a company-owned town were protected by the First Amendment when distributing religious literature within that town, despite company rules to the contrary. In other words, in some circumstances, private actors can be treated as government-like actors and must comply with constitutional requirements when dealing with private citizens.
Other legal scholars offer a broader context in which to advocate for legal restrictions on social media censorship. Prominent among them are Donald L. Hudson, Jr., a Justice Robert H. Jackson Legal Fellow for the Foundation for Individual Rights in Education (FIRE), who argues the times have changed sufficiently since the Constitutional Convention in 1787 to justify a reassessment of where the freedoms of the First Amendment should extend.
“A society that cares for the protection of free expression needs to recognize that the time has come to extend the reach of the First Amendment to cover these powerful, private entities that have ushered in a revolution in terms of communication capabilities,” writes Hudson. “When a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor.”
Hudson knows his observation is far from new when he cites the writings of renowned legal scholar Erwin Chemerinsky, who in 1985 wrote:
Freedom of speech is defended both instrumentally — it helps people make better decisions — and intrinsically — individuals benefit from being able to express their views…
Any infringement of freedom of speech, be it by public or private entities, sacrifices these values. In other words, the consensus is not just that the government should not punish expression; rather, it is that speech is valuable and, therefore, any unjustified violation is impermissible. If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression lost.
Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves. Therefore, courts should uphold the social consensus by stopping all impermissible infringements of speech, not just those resulting from state action. (Erwin Chemerinsky, Rethinking State Action, 80 N.W. U. L. Rev. 503, 533–34 (1985))
[Reading Chemerinsky’s full essay — found here — is well worth the effort to read.]
When the interests of the government and the acts of a private interest are so closely aligned and can have such a chilling effect on free speech, does the public-private distinction eclipse the importance of the freedoms guaranteed by our constitution?
Since this question has barely been asked in the public discourse, much less decided, some free speech advocates have turned to the states for the redress of their concerns.
Possible state-level actions to defend free speech
As we are a federal Republic, there are state-level actions that could be taken to reinforce free speech rights in the U.S.
For starters, states can legislatively declare ‘political affiliation or activities’ a protected status in order to empower state to restrict the power of private entities to limit speech based on content associated with political beliefs.
California, Colorado, District of Colombia, Louisiana, Minnesota, Montana, Nebraska, New Jersey, New York, South Carolina and Wisconsin already have laws on the books preventing private entities from taking unfavorable job actions (i.e., termination, demotion) based on political affiliation or activity. Whether these protections extend to speech on private platforms is, at minimum, a contestable point.
Whether this end-around approach is the best way to rebuild our speech and press freedoms is debatable. What is not debatable is that more and more voices — from the left and right on the political spectrum — are seeing barriers erected with the expressed intent of marginalizing their opinions.
In my opinion, the arc of history trends towards governments taking away freedoms previously held as the basis for their legitimacy
Martin Luther King once said, “The arc of the moral universe is long, but it bends toward justice” — which was a rephrasing of a similar thought expressed in an 1853 sermon delivered by the abolitionist minister Theodore Parker where he said:
“I do not pretend to understand the moral universe. The arc is a long one. My eye reaches but little ways. I cannot calculate the curve and complete the figure by experience of sight. I can divine it by conscience. And from what I see I am sure it bends toward justice.”
I prefer King’s rewrite, but both sentiments are inspiring…and way too optimistic.
Increasingly, I am convinced King and Parker were, most regrettably, premature. We are not trending towards justice or its bed partner, freedom. In the midst of the Information Age and growing worldwide prosperity, at best, our freedoms are treading water, and, at worst, in a sharp decline.
And nowhere is that more apparent in how both public and private actors, worldwide, are using the broad reach and power of new technologies to limit the ability of large segments in society to access information and express their opinions.
[Did the entire country of Australia get censored by Facebook?!]
Most distressing is how the corporate media and the entrenched political class have lined up to support this ominous trend.
Nonetheless, I believe freedom of speech will someday win the day as the following maxim becomes widely understood:
Unfree people need their government and private actors (i.e., Facebook) to tell them what is legitimate speech and what is illegitimate speech. Free people, by comparison, rely on themselves to make such decisions.
In the U.S. today, our social elites have collectively decided the American people cannot be trusted with the obligations of a free people. They believe the American people need to be treated like children as demonstrated by their open defense of sweeping censorship decisions by social media companies.
Despite this reality, I continue to dream there is hope for genuine freedom of speech (and press) in this country some day.
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