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 story behind the Barry Crimmins documentary

Barry Crimmins (via Twitter)
Barry Crimmins (via Twitter)

Don Aucoin’s feature on the new Barry Crimmins documentary in today’s Boston Globe goes into harrowing detail about the sexual abuse Crimmins suffered at the hands of a babysitter and, years later, his battle with AOL, which he believed wasn’t doing enough to get child pornography off its site.

What Aucoin does not mention is that Crimmins first told his story in 1992 in a long, impassioned front-page essay for The Boston Phoenix. His piece was edited by Caroline Knapp, to whom Barry paid tribute when she died in 2002 at the age of 42:

She wisely, gently and calmly guided me through the most difficult piece of writing I have ever had to do. And then, long after her job was done, she followed up again and again to see how I was handling things after the piece was published.

The documentary, “Call Me Lucky,” directed by Crimmins’ friend and protégé Bobcat Goldthwait, is making its debut this week at the Sundance Film Festival. (Disclosure: I was among a large number of Crimmins’ Boston friends who was interviewed by Goldthwait last winter. I doubt very much that I made the cut.)

Barry is a caustic humorist who is also one of the most humane people I know. He was a big help to me when I was doing some of my own reporting on child sexual abuse. I’m looking forward to seeing “Call Me Lucky.”

A horrifying and important piece of journalism

Jenifer McKim discusses her story. Click on image to view video.

The most horrifying and important piece of journalism I’ve seen in quite a while is Jenifer McKim’s front-page story in Sunday’s Boston Globe on an international child-pornography ring — a story that took McKim from Milford to the Netherlands. I have no stomach for describing what McKim found, but you should read it if you haven’t already.

The point is so obvious that it scarcely needs to be made, but journalism like this isn’t possible without resources. In the video, McKim says she worked on the story for a year. The Globe has money (if not as much as it used to), lawyers and institutional muscle. Without those assets, it’s hard to imagine this story ever would have been fully told.

Did David Portnoy commit a crime?

Jonathan Albano (right) at a forum at Boston University last year on "Legal Liability in the Age of WikiLeaks." At left is First Amendment lawyer Robert Bertsche. I was the moderator, and I'm sitting in the middle.

Could David Portnoy face criminal prosecution for posting nude photos of Tom Brady’s 2-year-old son? I’m guessing no. But he’s taking a huge risk that some ambitious prosecutor might at least want to make a name for him- or herself by going after Portnoy and his sleazy website, Bar Stool Sports.

We begin with lawyer and former prosecutor Wendy Murphy, who is quoted as telling WCVB-TV (Channel 5): “The whole purpose was to get people to look at [the child’s] genitalia, so absolutely — 20 years maximum and a $50,000 fine on top of that.” That’s certainly an opinion that should make Portnoy sit up and take notice. But it also seems to be a distinctly minority view.

The Boston Herald’s Dave Wedge reports today that neither the FBI nor Norfolk County District Attorney Michael Morrissey’s office would confirm or deny whether there’s an investigation under way. That’s standard procedure for the FBI. But it may be significant that the DA’s office said nothing. Unless everyone was just heading down to the Cape on a Friday afternoon.

David Frank of Massachusetts Lawyers Weekly adds Attorney General Martha Coakley to the list of officials who would neither confirm nor deny an investigation. But though Frank calls the pictures and Portnoy’s description of the young boy’s genitals “creepy” and “tasteless,” he casts serious doubt on whether a crime was committed:

I’ve talked to several lawyers today, from both the prosecution and defense side, who say there’s no chance Portnoy will ever be hit with a possession of child pornography charge. Portnoy’s post, as out of bounds as it is, simply doesn’t support the elements of the crime.

On the other hand, Frank quotes noted First Amendment lawyer Jonathan Albano as saying Brady and his wife, Gisele Bündchen, might be able to file an invasion-of-privacy suit on their son’s behalf and have some hope of succeeding.

“You’re talking about the publication of a 2-year-old’s private body,” Albano tells Frank. “Unlike Gisele, you can’t say that the child is a public figure, and why should he have less privacy rights than anyone else?”

I hope Brady and Bündchen go for it.

We talked about this on “Beat the Press” on Friday. Please have a look.

Photo by Emily Sweeney.

 

 

“You seem to be in denial”

That’s what U.S. District Judge William Young told former sportscaster Bob Gamere yesterday after Gamere whined about the five-year prison sentence he’d just been handed for distributing child pornography.

No kidding. What Gamere seems to have lost sight of is that actual children were exploited, and that his actions helped spur demand for more such exploitation.

Or maybe he doesn’t care.