Trump’s accidental transparency does not negate his anti-free speech agenda

“Censorship” (cc) 2006 by Bill Kerr

Previously published at WGBHNews.org.

Talk is cheap. If President Trump actually followed through on his multifarious threats against the First Amendment, then those of us who report and comment on the news would already be on our way to a detention camp — a beautiful detention camp, for sure — somewhere in the empty spaces of Oklahoma.

He has, after all, threatened to undo the laws that protect journalists from frivolous libel suits. He has said that he would revoke Amazon’s (nonexistent) tax breaks in retaliation for the harsh coverage he’s gotten from The Washington Post, owned by Amazon chief executive Jeff Bezos. His attorney general, Jeff Sessions, has said that he may unleash a wave of subpoenas that would force reporters to identify anonymous leakers. And just recently, Trump demanded a Senate Intelligence Committee investigation into media organizations that report what he calls “fake news” and suggested that the broadcast licenses held by NBC should be revoked.

But Trump in theory and Trump in practice are two entirely different things. Though his anti-press rhetoric can be frightening at times, his follow-through has been pretty much nonexistent. Meanwhile, as First Amendment expert Jameel Jaffer says, Trump could legitimately if inadvertently lay claim to presiding over “the most transparent administration in history,” to invoke a solemn promise by Barack Obama that unfortunately preceded eight years of stonewalling on public records as well as an unprecedented crackdown on leakers.

“To say that the Trump administration leaks like a sieve would be very unfair to sieves,” Jaffer said Tuesday evening at the Harvard Kennedy School’s Shorenstein Center on Media, Politics and Public Policy. Moreover, Trump’s Twitter feed — he has tweeted more than 2,000 times since Election Day — offers a look into “the unvarnished presidential id,” Jaffer said, quoting Nixon biographer John Farrell.

Jaffer, currently the executive director of the Knight First Amendment Institute at Columbia University, had previously served as deputy legal director for the ACLU. His work on a lawsuit aimed at shaking loose documents from the George W. Bush administration resulted in the publication of the so-called torture memos — the legal rationale produced by the White House to justify waterboarding and other inhumane tactics used in questioning terrorism suspects.

Despite Jaffer’s backhanded praise for Trump, he is hardly sanguine. For one thing, he noted, Trump’s tweets come at us in such volume that they distract us and distort the public discourse. “We should be careful not to mistake noise for transparency,” he said. In addition, seeming openness in one realm is often used to mask efforts to cover up information elsewhere. For instance, the White House recently released an eight-minute video on its efforts to deal with the disastrous aftermath of Hurricane Maria in Puerto Rico while simultaneously removing statistics related to the relief effort from government websites.

Trump’s rhetorical attacks on the press — including his references to news organizations as “the enemy of the American people” — need to be taken seriously as well, Jaffer said. He called those attacks “an assault on transparency” aimed at undermining faith in the media, calling into question even “provable truths.” The effect, he said, is to replace journalists with Trump himself as the arbiter of what is true and false. And at least among his strongest supporters, he’s had some success. For instance, a Morning Consult/Politico poll released on Wednesday found that 46 percent of those surveyed “believe major news organizations fabricate stories about Trump.” That proportion rises to a stunning 76 percent among Republicans. (For a full breakdown, click here and turn to page 146.)

“If this is transparency at all,” Jaffer said, “it is transparency we should distrust and interrogate rather than applaud.”

My own fear — and I think Jaffer would agree — is that Trump has stirred up such hatred for the media (not that we were ever popular) that basic press protections could be in danger. Yes, you can believe that the courts will protect us; Trump’s Supreme Court justice, Neil Gorsuch, whatever his other shortcomings, seems as likely to support a robust First Amendment as his colleagues. But as Charles Pierce recently noted at Esquire.com, we are closer than you might think to the unthinkable prospect of a constitutional convention at which everything would be up for grabs, including the Bill of Rights. I do not assume that basic constitutional guarantees would survive in the current environment.

As I said, talk is cheap. But talk such as Trump’s cheapens the public discourse, giving people permission to indulge their hatreds and prejudices. We’re already seeing it happen.

At the end of Jaffer’s lecture, he was asked what makes him hopeful in this dark time. His response: The outpouring of protest against the racist violence in Charlottesville, Virginia, including tens of thousands of people in Boston who demonstrated against hate. “It’s a great relief to me to see people coalescing around this stuff,” he said.

So is Trump a threat or a menace to the First Amendment? I think it’s important to separate Trump’s words from his actions. To this point, at least, the president’s anti-media rhetoric has had no more effect than his attacks on Obamacare (dismantledlast Thursday; revived with his support on Tuesday), or his ever-shifting views on tax cuts. My philosophy: Keep a close ear out for what he says — but don’t panic until he actually does something.

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What if the First Amendment were as untouchable as the Second?

I’ve been trying to think through what would change if the First Amendment were as untouchable as the Second. I’m sure this is an incomplete list, but here are a few ideas that come to mind:

  • Child pornography would be legal. It might still be illegal to make it because of the horrific child abuse it would entail. But sell, distribute or possess it? No problem.
  • Obscenity in general would be legal. This is a very slippery concept, and in fact it is difficult to know exactly what would be considered obscene circa 2017. But depictions of bestiality or rape would be fine. As with child pornography, it’s possible that someone could be prosecuted for the underlying acts, but not for selling, distributing or possessing it.
  • Libel would cease to exist. Want to publish something false and defamatory about someone? Go for it. And don’t worry about whether she’s a private figure. That distinction is so 20th-century.
  • If the United States is at war, and you somehow come into possession of plans detailing the specifics of an operation against enemy troops, well, go ahead and publish them. Under our new, absolutist First Amendment, Col. Robert McCormick did nothing wrong.
  • If you’re, say, a Ku Klux Klan leader, and you exhort a mob to lynch a black man standing at the periphery of the crowd, and they do it, you have nothing to worry about. The criminals who actually carry out the deed could be prosecuted for murder, of course, but under an absolutist view of the First Amendment there would be no such thing as incitement.

No rational person, of course, would support any of these changes to the First Amendment. Even someone who considers himself pretty much an absolutist, as I do, has to acknowledge that not every single form of expression can be protected by the Constitution. So why can’t extreme gun-rights advocates see that they’ve abandoned all rationality?

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The kids are all right: Why concerns about free speech on campus may be overblown

Demonstration at Berkeley Free Speech Week. Photo (cc) 2017 by Pax Ahimsa Gethen.

Previously published at WGBHNews.org.

Do college students fear the First Amendment? You would think so, based on the results of a survey published last week by the Brookings Institution, which found that the nation’s campuses are a bastion of political correctness whose coddled denizens favor the warmth of safety and like-mindedness over the brisk waters of vigorous, uncomfortable debate.

But as someone who has been teaching college students for a dozen years, the results struck me as entirely at odds with what I hear from the smart, thoughtful young men and women I deal with every day. Last week I put that proposition to the test. I’ll get to that in a bit — but first some background.

The study was led by Brookings and UCLA scholar John Villasenor, who said he surveyed some 1,500 students in 49 states. Certainly if Villasenor’s findings are accurate, then there is plenty of cause for concern. Among other things, he found that a plurality of students (44 percent to 39 percent) wrongly believe that the First Amendment doesn’t protect hate speech; that 51 percent say it is acceptable for students to shout down a speaker “known for making offensive and hurtful statements”; and that 19 percent even think it’s all right to engage in “violence to prevent the speaker from speaking.” Villasenor wrote:

The survey results establish with data what has been clear anecdotally to anyone who has been observing campus dynamics in recent years: Freedom of expression is deeply imperiled on U.S. campuses.

Villasenor’s work created something of a media sensation, playing as it did into stereotypes that today’s generation of students are delicate snowflakes who’d rather walk out on a speaker whose views they disagree with than listen to ideas that challenge their preconceived notions. Washington Post columnist Catherine Rampell put it this way: “Here’s the problem with suggesting that upsetting speech warrants ‘safe spaces,’ or otherwise conflating mere words with physical assault: If speech is violence, then violence becomes a justifiable response to speech.”

And for a public saturated by media reports of campus intolerance directed at controversial right-wing speakers such as Ann Coulter and Milos Yiannopoulos, the findings seem like they must be true. Attorney General Jeff Sessions joined in the pile-on this week, telling an audience at Georgetown University that “freedom of thought and speech on the American campus are under attack.” But if you’re looking to the Brookings survey for confirmation of such sentiments, you may find that you need to look elsewhere: the methodology is being seriously questioned.

Lois Beckett of The Guardian administered a thorough thrashing to Villasenor, quoting a polling expert that his results amounted to “malpractice” and “junk science” and that “it never should have appeared in the press.” Beckett’s most serious charge was that, rather than polling 1,500 randomly selected students, Villasenor relied on an opt-in online panel of respondents who said they were college students. In other words, the survey was not much different from being urged to visit a political website after a candidates’ debate and registering your opinion as to who won. “If it’s not a probability sample, it’s not a sample of anyone, it’s just 1,500 college students who happen to respond,” the polling expert, Cliff Zukin, told Beckett.

Some of Beckett’s complaints seem petty. For instance, she notes — as Villasenor acknowledges — that the study was funded by the libertarian Charles Koch Foundation. Frankly, though, a reputable organization like Brookings is accustomed to dealing with such funding issues, and it seems unlikely that the malign hand of the Koch brothers reached in to alter the results. (As you may know, David Koch’s service on the WGBH board was the source of some controversy several years ago. He is not currently a member.) Beckett also dismisses Villasenor on the grounds that he is an electrical engineer. But according to his Brookings biography, he appears to be something of a polymath whose academic interests include public policy and law. Still, Villasenor’s use of an opt-in questionnaire rather than a random survey calls his findings into question.

Last week I conducted my own non-scientific survey of the nearly 50 students who are enrolled in my introductory course at Northeastern University on journalism and the news media. About half are journalism majors; the rest are from across the university and are studying in fields such as business, computer science, and, yes, electrical engineering.

We went into some depth. I organized the class into five teams, each of which spent about 20 minutes wrestling with one of the five questions on Villasenor’s survey. That was followed by team presentations and, finally, a show of hands on the five questions.

Now, obviously, asking people to take a stand in full view of their peers is problematic, so I don’t want to make any great claims for the accuracy of my survey. But the findings matched the comments made during class discussion. And they were heartening. Thanks to one well-informed student, they all learned that hate speech is, in fact, protected by the First Amendment. What impressed me was that after hearing that, an overwhelming majority agreed that such speech should be protected.

Only a handful of students thought it was acceptable to shout down a speaker — and they made it clear that they believed as they did because protesters also have First Amendment rights. Not a single student came out in favor of violence. On the question of whether a university must balance controversial speakers with those of opposing views, the consensus was that such balance should emerge in the selection of speakers over time — not that every controversial speaker should be expected to debate an opponent. They also overwhelmingly agreed with the proposition that a university should foster an “open learning environment where students are exposed to all types of speech and viewpoints” (to use the survey’s wording) rather than create “a positive learning environment for all students by prohibiting certain speech or expression of viewpoints.”

Every year my friend and colleague Harvey Silverglate, a leading civil-liberties lawyer, writes a round-up of outrages against free speech at colleges and universities called the “Campus Muzzles.” Free speech is a real issue on many campuses, and I don’t want to assume that Northeastern is an exception.

Neither, though, am I worried about the future of political discourse as the next generation assumes positions of influence and power. The anti-First Amendment forces are a minority. Antifa is real but tiny. My experience is that most college students are smart, tolerant, and eager to hear all points of view — including those that clash with their own beliefs.

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New Hampshire official in spotlight won a Muzzle Award earlier this year

Illustration by Emily Judem of WGBH News

New Hampshire secretary of state Bill Gardner, who has refused calls to resign from President Trump’s bogus voter-fraud commission, won a New England Muzzle Award from WGBH News earlier this year. His dubious achievement: continuing to fight against the scourge of ballot selfies, a form of free expression that several federal courts have ruled is protected by the First Amendment.

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The real target of the Boston counter-protest was Trump

Bonita Yarboro traveled with three friends from Hamden, Connecticut, to protest against “racism, anti-Semitism, every -ism out there.” Photo (cc) by Dan Kennedy.

Previously published at WGBHNews.org.

There’s been so much written and said about free speech and the lack thereof at Saturday’s rally on the Boston Common that the big picture is in danger of being lost. So let me try to bring it back into focus. An estimated 30,000 to 40,000 people turned out not to protest what a few right-wingers had to say or to rumble with the police. Rather, they came to express their anger and disgust with President Trump.

Lest we forget, back in May a similar event drew just a few hundred people, with the two sides being kept apart by police officers. We might have seen a similar response this past weekend. But then a motley band of white supremacists and neo-Nazis marched in Charlottesville, Virginia. A fellow-traveler was accused of driving into a crowd of people who had come to protest against such hate, killing one of them, Heather Heyer. And Trump, on his third attempt to address what had happened, threw a temper tantrum of a news conference in which he placed racists and those who oppose racism on the same moral plane.

It was that reality that was on the minds of those who showed up at the Reggie Lewis Center in Roxbury on Saturday morning. I was among them, carrying a notebook and a smartphone with handmade press credentials around my neck so no one would think I was one of the protesters. The crowd reminded me of the folks who’d turned out in Copley Square last January to protest Trump’s first, botched Muslim ban: earnest liberals from the suburbs, Black Lives Matter activists, young people, LGBTQ people, lots of racial diversity, lots of ink (not visible last winter), and a large number of clergy. Mayor Marty Walsh, Police Commissioner Bill Evans, and Attorney General Maura Healey all put in appearances on Saturday.

There were, of course, a few political radicals on hand. Two older women who would only give me their first names held up a large banner that said “No Free Speech for Fascists” — and, in smaller type, “Progressive Labor Party,” a far-left group. I asked them if they thought their views contradicted the First Amendment’s guarantee of free speech. “There is no free speech,” Ruth instructed me. “Speech costs a lot of money.” Added Heidi: “We need to stop this hate speech.”

More typical was a young African-American woman named Bonita Yarboro of Hamden, Connecticut, who was holding a green sign that read “I am Black and I MATTER. Any questions?” I asked her what had brought her to Boston and what her hopes were for the counter-protest, dubbed “Fight Supremacy” by its organizers. “Four of us came up together in a Volkswagen Beetle,” she said. “I just want to stand up against racism, anti-Semitism, every -ism out there.”

We got under way a little before 11. The march down Tremont Street toward the Boston Common was a rolling celebration. The police officers who lined the route were professional and friendly. Charlie Pierce wrote in Esquire that Police Superintendent Willie Gross was posing for selfies with marchers.

By 1, with our destination still ahead of us, word started to ripple through the crowd that the rally was over and that the right-wing speakers had left. With the Common just ahead of me, I spotted state Rep. Byron Rushing, a South End Democrat, who told me he’d been prohibited from entering the 75-yard zone around the Parkman Bandstand that police had set up to protect the speakers. “I came down to hear them, and they wouldn’t let me in,” he said. “Freedom of speech should be reciprocal. If they can talk, I should be able to listen.”

In fact, there remain some legitimate concerns about how the authorities handled access to the bandstand. The police department had a genuine public-safety challenge on its hands, and the buffer zone was probably a necessity — but it wouldn’t have been as onerous if, say, a few pool reporters had been allowed in to hear what the speakers had to say. It didn’t help that Commissioner Evans issued a statement in which he said it was “a good thing” that the right-wingers couldn’t get their message out. The ACLU and others have expressed concern.

But the triumph of the counter-protest was not that it had silenced a few extremists (and it’s not even clear how extreme they were, given that some who had been scheduled didn’t show up). The triumph was that the crowd had expressed its opposition to the racism and hatred that these days is indulged, even amplified, by the president of the United States. I couldn’t help but feel a surge of patriotism in the face of such idealism.

Trump’s outrages come at us every day. But his sociopathic reaction to the events in Charlottesville seems like a watershed moment of the sort that greeted the “Access Hollywood” tape, on which he was heard profanely bragging about groping and sexually assaulting women. From business leaders to Republican officials, a new wave of people has begun moving away from him. Republican Sen. Bob Corker of Tennessee, presidential historian Douglas Brinkley, and investigative reporting legend Carl Bernstein are among the serious, careful folks who recently have questioned Trump’s mental stability. (Brinkley and Bernstein made their remarks on CNN.)

This can’t go on, but how will it end? Regardless of what comes next, I’m proud of my city for the stand it took this past weekend.

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Free speech took a back seat to public safety at Saturday’s demonstrations

It’s now clear why no one could hear the right-wing speakers on the Boston Common on Saturday. The police kept demonstrators 75 yards away, and the speakers didn’t have any amplification. I’m not sure whether that was a police decision or a result of their own poor planning. (And I doubt it would have made a difference.)

The police had a huge dilemma on their hands. Even though the vast majority of the 40,000 counter-protesters were peaceful, there could have been some real trouble from a few hotheads if they had been allowed any closer. There were only a few dozen right-wingers.

I’m not sure how this could have been handled differently. Someone suggested that a pool reporter should have been allowed in, and that certainly would have been better than nothing. It didn’t help that BPD Commissioner Bill Evans issued a statement in which he sounded glad that the speakers were not able to get their message out:

We had a job to do; we did a great job. I’m not going to listen to people who come in here and want to talk about hate. And you know what, if they didn’t get in, that’s a good thing ’cause their message isn’t what we want to hear.

Let’s not kid ourselves. There was real potential for violence far beyond the skirmishes that actually took place. The Boston Police did a good job of protecting public safety. But free speech took a back seat on Saturday, and I imagine we’re going to be hearing more about that in the days to come.

Update: First Amendment Rob Bertsche has similar thoughts.

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What I saw at the ‘Fight Supremacy’ counter-demonstration

Getting ready to leave the Reggie Lewis Center and head down Tremont Street.

I did quite a bit of tweeting earlier today from the “Fight Supremacy” anti-racism demonstration, and here is a Storify I put together capturing what I hope are the most useful parts.

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