The late Supreme Court Justice John Paul Stevens today is being hailed as a liberal beacon who took strong stands against the death penalty and in favor of gun control and limits on political spending.
But despite his well-deserved reputation as a judge who was motivated by decency and principle, his legacy with regard to the First Amendment is mixed.
With freedom of speech under unprecedented assault, it is heartening that young people get what’s at stake. Two of our 2019 New England Muzzle Awards single out high school principals who tried to silence their students — and wound up being taken to school about the true meaning of the First Amendment.
The news was disorienting: WikiLeaks founder Julian Assange, whose alleged misdeeds range from sexual assault to acting as a Russian intelligence asset, would be honored with an award named after the late Danny Schechter, one of my journalistic role models.
The Boston Globe has dropped out of the legal battle for the Robert Kraft sex video, according to Deadspin. In a statement, the Globe said it no longer had any interest in obtaining the video since Florida authorities had backed off their original claim that human trafficking was involved. The statement said in part:
Authorities have now said the charges against Robert Kraft are not part of a human trafficking case. While we still have an interest in video from outside the spa, we’ve decided to focus our energy on the famously weak public records laws of Massachusetts.
Here’s the problem. Florida’s public records law is well-known for its all-encompassing nature, and that’s good for open government and a free press. Though it’s true that no one needs to see the video outside the criminal justice system, any chipping away of free press rights could have unanticipated negative effects somewhere down the road.
Bad move. Fortunately, about 20 other news organizations continue to seek the video.
The arrest of WikiLeaks founder Julian Assange in London raises the possibility — make that the likelihood — that he will be prosecuted in the United States for revealing military secrets provided to him by former Army private Chelsea Manning. What does this mean for freedom of the press?
As I argued in The Guardian in 2010, when it appeared that the Obama administration was prepared to bring charges against Assange, there was no practical or ethical way of drawing a distinction between WikiLeaks and mainstream news organizations such as The New York Times, The Washington Post and The Guardian, all of which have published military secrets that were leaked to them, most famously the Pentagon Papers.
The principle that U.S. officials have generally followed is that leakers such as Manning, Daniel Ellsberg, Reality Winner and, if he is arrested, Edward Snowden may be prosecuted, but journalists are left alone — even though they could at least theoretically be charged under the World War I-era Espionage Act. The government has tried to argue that WikiLeaks colluded with Manning in his theft of documents, although even then it’s hard to see how that goes beyond normal journalist-source conversations.
Of course, a lot has happened since 2010. The First Amendment would almost certainly not protect Assange if he is charged with being an agent of the Russian government in connection with the leak of Hillary Clinton’s emails in 2016. But based on what we knew as of 2010, I think this column holds up rather well.
WikiLeaks and the First Amendment
An Obama administration prosecution of Julian Assange over the embassy cable leaks would be an assault on press freedom
If U.S. Supreme Court Justice Clarence Thomas had his way, First Amendment protections for freedom of the press could be turned back not just to the pre-civil rights era but to the pre-Civil War era as well.
Let me explain. On Tuesday, Thomas wrote that the court ought to overturn its landmark 1964 New York Times v. Sullivan decision and allow the states free rein in deciding what standards should prevail in libel suits. In Sullivan, the court ruled that to prove libel public officials would have to show defamatory material about them was published with the knowledge that it was false or with reckless disregard as to whether it was true or false. That standard, known as “actual malice,” was later extended to public figures as well.
Now Thomas would reverse that. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas said. “We should reconsider our jurisprudence in this area.”
But the Sullivan decision was grounded in the failure of states to respect the right of the press to engage in “uninhibited, robust, and wide-open” debate, as the court put it, including “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The truth of the matter is that members of the white power structure in the South were seeking to weaponize libel laws in order to prevent the national press from reporting on its suppression of the civil rights movement. If the court hadn’t intervened, they would have gotten away with it.
The story of Times v. Sullivan is well told in Anthony Lewis’ book “Make No Law: The Sullivan Case and the First Amendment.” Supporters of the Rev. Martin Luther King Jr. took out a full-page ad in The New York Times in March 1960 titled “Heed Their Rising Voices.” The ad contained several minor errors of fact. For instance, it stated that King had been arrested seven times on trumped-up charges; in fact, he had only been arrested four times. It said that black students at Alabama State College in Montgomery, Alabama, had been padlocked into their dining room “in an attempt to starve them into submission” — a bit of hyperbole that was not literally true.
L.B. Sullivan, the Montgomery city commissioner in charge of the police, sued the Times for libel even though his name appeared nowhere in the ad. Sullivan won a three-day trial in Alabama state court that was rigged in his favor. For instance, the following year, on the 100th anniversary of the founding of the Confederacy, Sullivan staged a re-enactment of the swearing-in of Confederate president Jefferson Davis, with the same judge who had presided over his libel trial administering the oath of office.
It was against this deeply racist backdrop that the Supreme Court acted to end such abusive libel cases in 1964. The solution hit upon by Justice William Brennan, who wrote the decision, was to hold the press harmless for unintentional errors of fact. As Andrew Cohen wrote in The Atlantic upon the 50th anniversary of the case several years ago, “If there were no Sullivan, there likely would not have been a release of thePentagon Papers or arigorous investigation into Watergate or much of any withering criticism of government that appears today in any medium.” Or as Lewis himself put it in another of his books, “Freedom for the Thought That We Hate: A Biography of the First Amendment,”“New York Times v. Sullivan revolutionized the law of libel in the United States.”
My contention that Justice Thomas would bring us back to the pre-Civil War era is based on his apparent contempt for how the 14th Amendment was used to extend freedom of the press. The amendment, adopted in the immediate aftermath of the Civil War, forbids the states from trampling upon rights guaranteed by the U.S. Constitution. It took a while for the Supreme Court to rule that the First Amendment was among those rights. But in the case of Gitlow v. New York (1925), the court cited the 14th Amendment in extending its jurisdiction for the first time over state laws regulating speech.
No matter that Benjamin Gitlow, the hapless communist who’d been convicted of violating New York’s criminal syndicalism law for publishing a turgid left-wing manifesto, was sent to prison anyway. By recognizing that “freedom of speech and of the press” are protected “from impairment by the States,” the court transformed “Congress shall make no law … abridging the freedom of speech, or of the press” into a guarantee pertaining to state and local government as well.
Thus Justice Thomas demonstrates not only ahistorical disdain for the role that combatting racism played in the Sullivan decision but also for the long-settled principle that state and local governments may not take away protections guaranteed by the Constitution. In his opinion this week, Thomas pays lip service to the 14th Amendment. But it’s hard to square that with his enthusiasm for turning over basic press protections to the tender mercies of the states.
Fortunately Thomas seems likely to find himself alone on this. President Trump, as we know, has spoken of his desire to “open up our libel laws.” But Adam Liptak, who covers legal affairs for the Times, wrote on Tuesday that both of Trump’s appointees, Justices Neil Gorsuch and Brett Kavanaugh, have spoken approvingly of Times v. Sullivan. The decision appears to be safe — at least for now.
Still, Thomas’ out-of-the-blue opinion — expressed in a decision about a libel suit involving Bill Cosby, of all things — shows that the battle for free speech is never completely won. Rather, it has to be fought, over and over again.
Several years ago the Massachusetts Legislature strengthened the state’s public-records law — but it is still among the weakest in the country. Now a commission aimed at reforming the law still further has disbanded without producing any recommendations, according to Todd Wallack of The Boston Globe.
The law currently applies only to the state’s executive agencies as well as to records kept by cities and towns. The Legislature, the courts and the governor’s office are all exempt.
Alex Jones is the sort of dangerous crank that freedom of speech was designed to protect. When the late Anthony Lewis wrote his “biography” of the First Amendment, he titled it “Freedom for the Thought That We Hate.” We don’t need constitutional protections to report on the church picnic. We need them to make sure that the most loathsome among us are allowed to spread conspiracy theories, spout vile insults, and stage outrageous demonstrations of hatred and prejudice.
And no, Jones is not in danger of losing his First Amendment rights. The government has not attempted to silence him. His website, InfoWars, continues to be a popular stop for those on the extreme right. He is facing a lawsuit from several of the Sandy Hook families, whom he had cruelly accused of staging an elaborate hoax. But that, too, is part of the First Amendment.
The problem is that Jones illustrates perfectly a dilemma that some of us have been warning about for years: the privatization of free speech. As you may know, Jones in recent months has been banned from Facebook, Twitter, and other platforms. Last Friday he was cut off by PayPal as well. He’s going to need to find another way for his customers to pay him for those InfoWars Life Super Male Vitality supplements.
No one seriously questions the right of the tech platforms to banish Jones to the far corners of the internet. These services are owned by giant corporations that became fabulously wealthy (Facebook) or at least marginally profitable (Twitter) by offering their customers a controlled experience. Algorithms determine what you are most likely to see, especially on Facebook. Their policies prohibit nudity (usually), profanity (sometimes), copyright violations, and — especially as the manipulation of the 2016 election becomes clear — fake news aimed at swaying public opinion.
This would all be fine except that the platforms — and Facebook in particular — have become our new civic commons. As Josh Marshall, the founder and editor of the liberal website Talking Points Memo wrote recently, “To a real extent, the places you can exercise your speech these days are on YouTube, Facebook, Twitter and other platforms. That is really the heart of the problem. A big part of the public square has been gobbled up by closed systems: Facebook especially, but also Google’s YouTube, Twitter, et al.”
Now, as I said, no one is threatening Jones’ ability to reach millions of people through his website, although the weight of his legal problems might put him out of business. (Which would be fine with me.) If need be, he could host his site in another country, or from a server in his basement. But, these days, the platforms are how we extend our reach beyond the relatively small number of people who make the effort to seek us out. Early indications are that traffic to InfoWars dropped by half following Jones’ disappearance from Facebook. Again, that’s fine; Facebook, far from doing anything wrong, is acting responsibly. But with some 2.2 billion active monthly users, Facebook simply has too much power and influence to be trusted as a conservator of the First Amendment.
As Micah Sifry, who writes about the intersection of technology and civic life, put it in The New Republic, Facebook has usurped our initial hopes that the internet would spark a “civic renaissance” by democratizing information and giving everyone a voice:
With 68 percent of Americans currently using Facebook, it has become the nation’s de facto digital public square, at least in part because the country’s political leaders lacked the civic imagination to insist on a public alternative. With their tacit approval, Facebook built a giant garden for its users, walled off from the open internet. And then, taking advantage of its popularity, Facebook started copying and replacing older public forms of civic engagement with new ones that only liveinside its platform.
There is nothing new about this, and in some respects it predates technology. In 2003 I bestowed a New England Muzzle Award (then hosted by The Boston Phoenix, now by WGBH News) upon a mall in the almost-New England suburbs of Albany, New York, for calling police and having a man arrested because he was wearing an antiwar T-shirt. Shopping centers have essentially become the new village square, except that they’re geared toward commerce rather than civic life. In 2017, I awarded Muzzles to YouTube (owned by Google) for suppressing a pro-Israel video by Harvard Law School professor Alan Dershowitz and to Instagram (owned by Facebook) for deleting a photo of a nude painting posted by the Museum of Fine Arts. Technology companies have become so powerful that they need to take their First Amendment responsibilities seriously.
But the platforms are not common carriers like telephone companies, which are obligated to carry any calls and data that come their way. Nor are they the internet itself, although there’s plenty of reason to be concerned about the possibility of censorship now that President Trump’s FCC has done away with net neutrality. The solution, if there is one, is to draw people away from Facebook and toward an idea animated by something other than the profit motive. “If Americans truly want a digital public forum centered on the needs of the citizenry,” writes Sifry, “it has to be built and maintained the same way they’ve built and maintained America’s national parks — as public goods open to all.
Which brings me back to Alex Jones. In theory, his freedom to speak and to publish are intact. In reality, he can’t gain access to the platforms he needs to get his message out. Jones, of course, must be held accountable for the Sandy Hook families who’ve had to go into hiding because of his vicious lies, and for promoting crazy conspiracy theories like the Pizzagate child-sex ring tied to Hillary Clinton, which prompted a deranged individual to show up and start shooting.
The semi-censorship to which Jones has been subjected — quieted, but not silenced — may seem like a small price to pay in order to stop him from harassing innocent people and putting their lives in danger. Given the media environment as it currently exists, the platforms did the right thing by taking away his megaphone. But their actions only underscore what we have lost by granting custody of our free-speech rights to private entities beyond our control. Next time it might be someone who’s far less malevolent than Jones.
We really need to ask ourselves whether we want that accountability to come in the form of giant corporations silencing him simply because it’s good for business. I would not tell Mark Zuckerberg how to run his company, although even he has suggested that he would not be averse to some common-sense regulations. Like Sifry, though, I believe the time has come to try to revive the idea of the internet as a truly public space rather than the private playground of tech billionaires.
In 1931, the U.S. Supreme Court ruled in Near v. Minnesota that prior restraint — censorship — was permissible only to prevent serious breaches of national security, incitement to violence, and the publication of obscenity. It was Near to which the court looked in 1971 when it ruled that The New York Times and The Washington Post could resume publishing the Pentagon Papers, the government’s secret history of the Vietnam War.
Yet the rise of new doomsday technologies has put a crimp in Near. The latest example: efforts by a radical activist named Cody Wilson to publish blueprints on the internet describing how to use a 3D printer to produce an untraceable plastic gun. As I wrote for WGBH News several weeks ago, the case, based in Washington State, was reminiscent of one involving a left-wing magazine called The Progressive, which in 1979 sought to publish an article describing how to build a hydrogen bomb. In both instances, judges temporarily banned publication. The Progressive eventually published its article, and yet somehow we’re all still here.
Unfortunately U.S. District Court Judge Robert Lasnik is allowing the muzzling of Wilson to drag on, ruling on Monday that the temporary restraining order he had put in place on July 31 would not be lifted until the case has been resolved. According to The New York Times, Lasnik ruled that Wilson’s First Amendment rights “are dwarfed by the irreparable harms the states are likely to suffer if the existing restrictions are withdrawn and that, over all, the public interest strongly supports maintaining the status quo through the pendency of this litigation.”
And yet, the Times continues, the plans Wilson wants to publish are already leaking out here and there, thus showing the futility of censorship.
Consider the humble newspaper editorial. Unsigned and often unread, these gray exercises in cautious chin-stroking — representing as they do the theoretically awesome power of the institution — assert, applaud, deplore, and urge. But only rarely do they leap off the screen or page and grab the reader by the throat.
For the past several years, though, The Boston Globe’s opinionators have been trying desperately to break free from that swirling vortex of irrelevance. A satirical front page imagining a Trump presidency drew applause, moans, and brickbats. More successfully, the paper published several digital editorials about gun violence that incorporated interactive data presentations and online tools for contacting elected officials. (Here’s the most recent example.)
Now the Globe has embarked on its most audacious campaign yet: a call for newspapers across the country to publish editorials this Thursday condemning President Trump’s repeated assertions that journalists are “the enemy of the American people” and purveyors of “fake news,” an outrageous tactic that has led to threats against reporters at Trump rallies. More than 200 papers have signed on so far. “This dirty war on the free press must end,” the Globe said in announcing the coordinated effort, which you can follow on Twitter at #EnemyOfNone.
The idea originated with Marjorie Pritchard, the Globe’s deputy editorial-page editor. She told me by email that she brought it up at a meeting of the editorial board (journalists who work for the opinion section) and got the go-ahead to begin contacting the editorial boards of other newspapers. Given the difficulty of changing anyone’s minds in this era of hyperpolarization, I asked her whether she thought the effort could truly make a difference. She took the optimistic view.
“This effort is an attempt to break through sides and remind everyone of the importance of a free press, no matter what their political preference is,” she said. “A free and independent press is one of the most sacred principles enshrined in the Constitution. It must remain so.”
The newspapers taking part will each write and publish their own editorials. “The impact of Trump’s assault on journalism looks different in Boise than it does in Boston,” Pritchard wrote in announcing the campaign. “Our words will differ. But at least we can agree that such attacks are alarming.” That should at least partly counter any claims made by Trump supporters that the mainstream media are marching in lockstep with the Resistance to drive the president out of the White House. Still, there is a certain predictability regarding who’s for it and who’s against it.
In addition to the 200-plus newspapers that have responded to the Globe’s call, organizations such as the New England Newspaper and Press Association and the American Society of News Editors are lending their support. Last Friday on WGBH-TV’s “Beat the Press,” Tom Fiedler, the dean of Boston University’s College of Communication, gave the idea a hearty “rave.” For press advocates, the campaign is an opportunity to stand up for First Amendment values in the face of president who seeks to delegitimize journalism in the eyes of his followers.
But Trump-supporting media outlets have mocked the effort as the usual drivel from the usual suspects. “This is just another day at the office,” wrote Karen Townsend at Hot Air. “The press has never supported President Trump and both print and television network coverage has been grossly skewered [sic] negatively against him.” Over at Breitbart, John Nolte called the Globe a “far-left” outlet and, not surprisingly, turned the very fact that newspapers are working together on its head. “The bottom line,” Nolte said, “is that this coordinated attack coming from all corners of the establishment media only serves to validate the criticism coming from Trump and other media critics.”
In a sense, the effort is a perfect illustration of the dilemma facing the press right now. On the one hand, mainstream news organizations are attracting more subscriptions, donations, and readers. On the other hand, that increased interest is almost entirely restricted to opponents of Trump, as his supporters have gravitated to their own media ecosystem dominated by Fox News and Breitbart.
As someone who has written my share of unsigned editorials over the years, I doubt that more than a handful of hearts and minds are going to be changed on Thursday. But that doesn’t mean it’s not worth doing. Journalism is under siege. Last week, incredibly, a new poll showed that 43 percent of Republicans believe the president should have the authority to shut down “news outlets engaged in bad behavior.”
It’s time for us to stand up for our values and to remind the public of what the First Amendment is all about. What we’re not: perfect. What we are: an independent monitor of power, the absence of which would make this fraught moment infinitely worse.