Focus on the Constitution: "Let's Amend the Constitution"

Focus on the Constitution: First Amendment - "Bill-of-Rights-elluiah!"

President Elect Trump and Free Speech. Is it Good to Be King?

President elect Trump has opined that people who burn the American flag should be punished (jailed or lose citizenship).  However, he has failed to denounce use of the American flag as a symbol by the KKK, an avowed racist group, or of the Confederate Flag, an avowed racist symbol.

Justice Brennan, in Texas v Johnson:

The best way to preserve the flag’s special role in our lives is not to punish those who feel differently but to persuade them that they are wrong.  We do not honor our flag by punishing those who burn it, because in doing so we diminish the freedom that this cherished emblem represents.

Even Mitch McConell rejected a Constitutional Amendment to overturn Johnson, writing:

No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that. Ultimately, people like that pose little harm to our country. But tinkering with our First Amendment might.

Justice Scalia famously stated:

If I were king, I would not allow people to go around burning the American flag -- however, we have a First Amendment which says that the right of free speech shall not be abridged -- and it is addressed in particular to speech critical of the government.

Does Trump suppose himself to be King? 

He has suggested that he will change defamation laws to dilute freedom of the press and allow public figures to more easily sue the media for defamation. Is he unaware that defamation law is state common law and not federal law? And that if it were, he doesn't have the power to change them?  And in any event, there is the Constitution?

Perhaps he sees the Constitution as merely another of those vexing regulations that must be immediately eliminated.

Who would have thought that when Trump went to Washington to clean things up, he intended to throw out freedom and democracy with it?  -  other than the 70 Million people who voted against him.

Sad.

Fictional President Andrew Shepard explains why burning the American flag is as patriotic as saluting it:

First Amendment in Song

Lyrics by the U.S. Congress (1789).

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Flash! Flash! Speed Trap Ahead!

A federal judge has ruled that a driver's act of flashing lights at oncoming drivers is protected free speech and may not be punished by government. The case comes from the US District Court in Missouri.

Jonathan Turley, a criminal attorney and a professor at George Washington University Law School, said courts across the country are dealing with the same issue. In virtually every case except those still being decided, the person cited has prevailed, Turley said.

While flashing lights might be legal, is it ethical? Who is being helped? What public purpose does it serve? Shouldn't speeders be caught and punished?  If ethics is the communal sense of right and wrong, does it matter if you are a member of the community of drivers or the greater community of citizens of the area - including children, elderly, disabled and non-drivers who are at risk from speeders?  How many times has an innocent driver been injured or even killed because a speeding driver lost control and crossed the center line? You might think that you are helping out a fellow driver, but are you really part of the problem?

Just thinking...

Speech Free From Censorship, Not From Criticism

In case you missed the controversy over the comments by Phil Robertson of Duck Dynasty fame, this video is a quick summary:


Following the suspension by A&E, prominent conservatives, including Sarah Palin, spoke out characterizing Robertson's statements as being protected free speech. No wonder students are confused about the parameters of free speech protection. It is important with the explosion of social media and internet communication that students understand that the liberty of expression does not protect them from criticism if they say something that other people don't like. Speech that may be protected from government censorship is not equally protected from private action by employers, customers, suppliers, competitors, friends, enemies, or people who don't even know you.

A response that I read that I think will resonate with students came from syndicated commentator Leonard Pitts.  Here is the link to the editorial. Here is a quote:

Yeah. Because freedom of speech means you can say any asinine thing you want and nobody can call you on it or punish you for it. Right?

Um … actually, no.

Free speech means you can say any asinine thing you want and the government may not call you on it or punish you for it. If the feds came after Robertson, I’d hold my nose and stand with him. But he wasn’t punished by the feds. He was punished by the free market.

The First Amendment gives each of us the right to bring whatever we wish into the marketplace of ideas — faith, gay rights, white supremacy, libertarianism, socialism, birtherism — without government interference. But if enough people don’t buy what you are selling, you don’t stay in the market very long. And if what you’re selling offends enough people, the market will show you the door.

So Robertson’s rights were not abridged because his network slapped his wrists. Those are the rules we play by. That’s how America works.

A&E, calculating that Robertson had become a liability, dropped him. His fans raised an almighty ruckus and A&E chose discretion over valor, doubtless realizing the people most likely to be offended by the man probably weren’t watching him in the first place.

Now Robertson returns — just in time for a new controversy. It seems an old video has surfaced in which he lists the qualities a man should seek in a prospective wife. She should be 15 or 16 years old, advises the duck hunter — and a good cook.

Great. So now we get to see how child marriage plays in the marketplace of ideas. God bless America.

Read more here: http://www.miamiherald.com/2014/01/05/3853578/free-speech-what-it-is-and-isnt.html#storylink=cpy 

More Legal Fallout From Anonymous Internet Postings

In 2011, five New Orleans police officers were convicted of civil rights violations in the shootings and deaths of several New Orleans residents in the aftermath of Hurricane Katrina. A few weeks ago, U.S. District Court judge threw out the convictions on the basis of "grotesque prosecutorial misconduct."  Before and during the trial, lawyers in the U.S. Attorney's office that was prosecuting the case posted anonymous online comments to the New Orleans Times Picayune site (nola.com) creating a "prejudicial, poisonous atmosphere." Another lawyer in the Dept. of Justice in Washington DC who had helped prepare the case for trial also posted anonymously to comment on the case.

Lawyers, and certainly prosecutors, are aware that such public comment is against all rules of professional conduct.  Yet, somehow, the anonymity that appears to shield the comments from attribution somehow alter conduct - and not for the better.  I have previously commented on how internet anonymity skews the balance between the liberty of expression and the liberty of privacy.  In this case, it corrupted due process.

I am a staunch supporter of the liberty of expression.  However, I can't for the life of me understand how anonymous expression has value that adds to the discourse.  The old radio show, The Shadow, carried the catch phrase, "Who knows what evil lurks in the hearts of men?" Anonymity allows the evil to be outed. If you want to speak badly of others or their opinions, you should have the liberty to do so.  But only if you are willing to face the criticism that comes with the expression of your opinions.

If expression is so important (and it is) why do we allow it to be cheapened by anyone's fleeting tawdry ill considered ramblings? Do we allow bills to be introduced in a legislature with anonymous sponsors? Do judges render opinions anonymously? Do doctors render diagnoses anonymously? Do general direct battles anonymously? Newspapers will not print letters to the editor without first making some reasonable effort to verify the source. That has been the journalistic standard for decades - an improvement over the 19th century practice of printing letters with pseudonyms. But on the most groundbreaking technology, we have gone backwards in the theory of valued civilized discourse.

Now, even lawyers can't keep themselves from botching their own cases by blabbing on the internet.

Right to Be Stupid

Secretary of State John Kerry recently advised an audience of German students, "in America you have a right to be stupid." Secretary Kerry was referring to the liberty of expression that allows Americans to celebrate their ideas, or the lack thereof, without government censorship. This could be a great way to introduce the topic of limitations on governmental power and the parameters of Commercial Speech.  I often find that students don't initially recognize that the Freedom of Expression keeps you free only from government censorship. It does not mean that you are protected from comment and response by other persons. You are free to speak.  But others are equally free to speak back - and take action where appropriate. And, of course, free speech does not apply in the workplace, where you may be fired for stating your opinion.

John Kerry: Right to be stupid:

A few examples of Americans exercising that right:

Don Imus refers to the Rutgers Women's basketball team as "Nappy Headed Ho's":



Donald Trump saying almost anything:



Westboro Baptist Church (in harmony, yet):


Todd Akin of "legitimate rape" fame:


One of my personal favorites: Jury Duty is Unconstitutional:

The New Liberty of Expression

News article over the past few weeks have crystallized a troubling development in the Liberty of Expression amplified by the internet. In the last few weeks, a movement of conspiracy theorists have come forward to claim that the Sandy Hook Elementary shootings never took place. Their claim is that the government staged a vast media event with "crisis actors" in an effort to support a gun control agenda.  In addition to making these comments publicly for the media, conspiracy theorists have been directly contacting rescuers and victims of the tragedy with anonymous and hurtful comments.

In the "marketplace of ideas" theory, speech of little value will be shouted down and drowned out by criticism. But how do you drown out anonymous postings? The Liberty of Expression once carried the responsibility to face those who were critical of your expression. That responsibility has been removed by the internet's anonymity. The delicate balance between individual liberty of public comment and individual liberty to be let alone has been thrown out of kilter. Speech that is likely to result in imminent physical harm is not protected.  Yet, speech that is likely to result in imminent emotional harm is protected. In the Westboro Baptist Church case, the Supreme Court affirmed the right of protesters to express their views publicly no matter how repugnant or hurtful.  But physical protests can, and have been, controlled with appropriate time, place and manner restrictions to temper the damaging effects while allowing the expression.  How do we do this with anonymous postings on the internet?

Since this post was originally published, similar issues have arisen regarding harassment of the victims of the Colorado movie theater shooting.

In a less tragic but similarly vexing incident, it appears that an autobiography of Michael Jackson has become the target of a coordinated internet attack by Jackson's fans.  The book's author and publisher are helpless to counter an avalanche of critical reviews posted by anonymous readers, sometimes including false and misleading information. In the past, when only journalists had the resources to publish reviews, reasonable journalistic standards provided protection against false statements. Now, it's a free for all with few rules.

How can the law respond to these and similar challenges?

I have declined to post videos here so as to avoid giving a further forum to the Sandy Hook deniers.  YouTube hosts dozens of these videos with more coming every day.

Funeral Protest Restrictions Upheld

What ever happened to the Westboro Baptist Church whose right to protest at military funerals was upheld by the Supreme Court?  Apparently they are not finished with their legal battles as towns and states attempt to find the reasonable restrictions that may legally be imposed to protect grieving families from Westboro's particularly vile and intrusive form of protest. The 8th Circuit Court of Appeals has recently upheld a town ordinance in a St. Louis suburb preventing protests within 300 feet of a funeral service, during the service or within an hour before and after.  The Court ruled that the ordinance "survives First Amendment scrutiny because it serves a significant government interest, it is narrowly tailored, and it leaves open ample alternative channels for communication."

Related Posts are here and here.

Understanding The Misunderstanding

The violence and rhetorical tumult in the Middle East following the posting on YouTube of the video entitled "The Innocence of Muslims" affords a number of teaching opportunities. One that comes quickly to mind is the lack of universality in law and in basic legal philosophy. Teaching rudimentary U.S. constitutional principles to undergraduate students reminds one that even intelligent college students may not easily attain a full grasp on the concepts of free speech.  However, even if just through popular culture and everyday exposure, students do seem to understand that American Free Speech concepts protect expression even when the expression is hurtful to others.  As long as the speech is not certain to incite imminent violence at the time and place where it is made, even disgusting and distasteful speech is protected. 

However, this is not a universal concept. NPR broadcast an interview with Harvard International Law professor Noah Feldman in which he explains that government officials and educated persons, even in countries that embrace Free Speech principles harbor the misconception that the US Government may censor harmful or hateful expression. As a result, when the US took no action to remove or censor the offending video, the implication was that the US government was complicit or in support of the views expressed therein. The audio report is available here and provides an excellent source for assignment or class discussion in a Legal Environment class.  Here are some selected quotes from Professor Feldman:

"I had conversations with highly educated Tunisians — people high in the government — who were genuinely astonished to discover that, under U.S. law, we couldn't ban speech like that precisely because any incitement that might occur is distant in time, distant in place and not at all certain to occur. ...

"And it's actually a problem when people elsewhere actually think, including reasonable people, that the United States government must be complicit in something like the anti-Muslim film because we haven't prohibited it."

"In the U.S., we value the liberty of the speaker much more highly than either the dignity of the person who feels insulted or the state's interest in trying to avoid violent protest. ...

Professor Feldman also notes that American legal communities have discussed, whether the technological advances that have made global reach of communication more easily attainable should affect the American concept of time, space and imminence for incitement purposes.

This interview is a worthwhile resource on a current and complex topic in the law.

Justice Breyer ponders whether the internet changes the size of the "crowded theatre":

Political Appropriation, a Tort?

A New Jersey couple who posted their engagement picture on a personal blog were later mortified to learn that their special photo had been altered and used in political attack ads. As reported by ABC news, the gay couple's photo showing them holding hands and kissing with the New York skyline in the background was altered by an advocacy group targeting two Republican candidates in Colorado state legislative races.  Apparently, the candidates had not shown sufficient intolerance for prospective civil union legislation. The background of the photo was altered to show scenes that looked more like Colorado and statements attacking the candidates were affixed. Both targeted candidates lost in the primaries.

The couple has filed suit in US District Court for misappropriation.  The photographer has joined the suit for copyright infringement.  The Southern Poverty Law Center is providing counsel for the couple. While their image was most certainly appropriated, was it done for commercial purposes? What is the privacy expectation when you post an image on the internet?  Is there a political free expression defense?

The engagement photo:


One of the Colorado attack ads:


The other one:


TV news report:



See other posts on Commercial Appropriation involving:
Bette Midler
Vanna White, here and here
Tom Waits
Kim Kardashian
Lindsey Lohan

Exemplars or Exempt-Liars?

I find that my students are surprised to learn that false advertising regulations do not apply to political speech. I suppose this is an understandable revelation from the standpoint of a young person for whom the world is just beginning to expand. They learn (hopefully) at a young age that lying is wrong.  They learn, later, that false and fraudulent advertising or statements are illegal. (See posts here and here.) The logical conclusion is that false political ads would also be illegal.  Of course, such is not the case.  Choosing our policymakers is such an important matter that we choose to refrain from protecting the process by encouraging only truthful speech in favor of a "marketplace of ideas" where anyone can say any crazy thing and any one listening can believe any crazy thing."  At a concert recently, popular Country music star Hank Williams, Jr. spouted, "

"We've got a Muslim president who hates farming, hates the military, hates the U.S. and we hate him!" . Mr. Williams is not only protected in his free expression of his opinion, but is equally protected in his declaration of untruths.  Students, though surprised, are eventually accepting of the philosophy behind the legal protection.

But the stakes have been raised.  Recognizing that in the past when independent fact-checkers have pointed out the falsities in a political ad, the campaign responsible for the lies have pulled the ads off the air, the Romney campaign vows to continue lying.:

"We're not going to let our campaign be dictated by fact-checkers," Romney pollster Neil Newhouse said at a panel organized by ABC News.

Does this line of thinking create a new paradigm for political speech? If there is no legal penalty and no stigma, no shame, no downside to lying, then why should anyone ever tell the truth in the political realm?  Is there any wonder why it is so difficult to teach our students to act ethically?  Politicians, millionaires all, lie with impunity and, now as part of a strategy for success.  These exempt liars are the exemplars for our students to emulate. And we are merely seeing the tip of the iceberg of Superpac activity following the Citizens United case.

Where does law come from?  It is made by people who lie under the cloak of legal protection, with no shame while propped up by unlimited funds to spread their lies and achieve the American dream. Don't we deserve a better system than this?

Here is the link to factcheck.org. We are all going to need it far more often than we should.

Click on the image below to see a Colbert Report skit on Paul Ryan's RNC speech.

Law Music Video: First Amendment Kareoke (sic)

Today's installment in the weekly Law Music Video series is the First Amendment Kareoke (sic) from  Rev. Billy and the Church of Stop Shopping Choir.  The lyrics are nothing more than the words of the First Amendment to the Constitution.  But the presentation affords opportunity to explore some issue with your class.

How are law and religion similar/different?
Why do we cloak our judges in robes and our legal proceedings in arcane language, symbolism and customs?
Is the First Amendment reflective of an American "Civic Religion?"
What are the similarities/differences in how religious doctrine and law is determined/interpreted?

Do We Need a Law That Says That the Law is The Law?

NPR recently reported on growing fears in Tennessee that Sharia would become the law of the land.  Apparently, the governor hired a Muslim worker in the state's Economic Development office.  This apparently set off a firestorm of protest that even figured into the Republican primary for a Congressional seat.  the incumbent, Rep. Diane Black, was apparently criticized for not taking a strong enough stand against Sharia law. The criticism prompted Black to offer, "I understand the devastation that Shariah law could mean here in our country, and I'm a sponsor of a bill that will once again say that the United States Constitution is our law and that it is the supreme law."

The law will say that the law is the law. Perhaps Black is positioning for an appointment in the Department of Redundancy Department.

Is opposition to Sharia law akin to saying, "I am against the government making currency out of ice cubes?"

This report prompted me to ask my class, "Is there widespread understanding of how law is made/where it comes from?"

Citizens United Case Gives Rich Guys a "Get Out of Jail Free" Card

Are you a rich guy being investigated for potential criminal prosecution? No worries! Exercise your free speech rights by dumping millions of dollars of corporate money at your control into a PAC to challenge the prosecutor's re-election bid. The new prosecutor, beholden to you for his job, is sure to lose interest in that prosecution.

Is this what Justice Kennedy anticipated when he opined, "The [government's] anticorruption interest is not sufficient to displace the speech here in question."

"American President" Movie Speech Echoes Supreme Court

The American Rhetoric Website on Movie Speeches offers an opportunity to view President Andrew Shepherd's (Michael Douglas) address to the press from the movie The American President. Shepherd, running for re-election has been attacked by his opponent on "character issues." The widower president had begun dating an environmental lobbyist, Syndney Ellen Wade (Annette Bening), when an old photo of her surfaced. The image captured a college -aged Wade burning an American flag during a protest.

Shephard's impassioned words echo Justice Brennan's decision in Texas v. Johnson (flag burning case):

The best way to preserve the flag’s special role in our lives is not to punish those who feel differently but to persuade them that they are wrong.  We do not honor our flag by punishing those who burn it, because in doing so we diminish the freedom that this cherished emblem represents.

I find this clip useful to describe the concept and legal principles surrounding political speech to set the stage for a comparative analysis of commercial speech.

To view the speech from The American President, click here or on the image below:

Deceptive Advertising

Embedded below is the iconic "Morning in America" ad from President Reagan's 1984 reelection campaign.  The ad, often held up as an exemplar of positive campaign advertising, proclaims that America is "prouder, stronger, better," than it was prior to Reagan's election.  In the business realm, those terms would be referred to as "puffery."  But the ad also makes a number of factual statements; inflation is below a certain rate, so many couples will marry, so many people will buy homes, etc. Were these facts accurate? From the standpoint of the law, it doesn't matter.  As political speech, truth and falsity may be neither determined nor regulated by the government. What is "true" or not in the political realm will be sorted out in Justice Holmes' "marketplace of ideas." Or, by reference to factcheck.org.

In business, however, commercial speech enjoys no such latitude. False and/or deceptive advertising may be regulated, censored, banned, and may lead to penalties. Embedded below is an Activia ad that subjected Dannon to this complaint by the FTC resulting ultimately in a $21 million settlement. Writing that check probably helped relieve that "bloated feeling" in Dannon's bank account.

Featured Case: Bad Frog Brewing Co. v. New York State Liquor Authority

According to the 2d circuit's opinion:

A picture of a frog with the second of its four unwebbed "fingers" extended in a manner evocative of a well known human gesture of insult has presented this Court with significant issues concerning First Amendment protections for commercial speech. The frog appears on labels that Bad Frog Brewery, Inc. ("Bad Frog") sought permission to use on bottles of its beer products. The New York State Liquor Authority ("NYSLA" or "the Authority") denied Bad Frog's application.

fn 1. The gesture, also sometimes referred to as "flipping the bird," see New Dictionary of American Slang 133, 141 (1986), is acknowledged by Bad Frog to convey, among other things, the message "f**k you." The District Court found that the gesture "connotes a patently offensive suggestion," presumably a suggestion to having intercourse with one's self.

The court applied the Intemediate Scrutiny test applicable to Commercial Speech cases as determined by the Central Hudson case. The question for the state, then, is "What is your substantial governmental interest in prohibiting this label?" The state of New York says that it has a substantial interest in protecting children from exposure to vulgarity.

If those are appropriate ends, then what are the means that New York has chosen to protect children from vulgairty? New York responds that the way it has chosen to protect children from vulgarity is to ban the friggin' frog label. Does this action directly advance the stated substantial governmental interest?

Hardly.

Our point is that a state must demonstrate that its commercial speech limitation is part of a substantial effort to advance a valid state interest, not merely the removal of a few grains of offensive sand from a beach of vulgarity.

Therefore, the state's interference with Bad Frog's commercial speech is an unconstitutional infringement.

The Bad Frog label:







Connecticut had a similar problem when it banned the use of Seriously Bad Elf beer's label on the grounds that it appealed to children.  Connecticut relented when Bad Elf threatened suit.

Seize the Teachable Moment: Rape "Comedy" Deja Vu

When a teachable moment presents itself, we must not let the learning opportunity pass.  It is so difficult to get college students to pay attention to anything outside of what is on their computer screens at the moment that when an event occurs to which their attention is drawn, we should employ it for its maximum educational value. Consider the opportunity created by the event described below to talk to students about the Liberty of Free Speech and the responsibility that is inextricably tied to the exercise of liberties.

The University of Connecticut (UConn) student-run TV station (UCTV)  recently ran a "comedy" skit of questionable taste and social value. The skit, part of the Shenanigans show, may be viewed below. WARNING! - the language is sexually explicit. As objectionable as the prurient tone of the skit may be, its crudeness is dwarfed by the offensive overall premise of this poorly considered endeavor. As described in this editorial and in this news report (also including access to a video copy of the skit) the skit shows a frightened and frantic female student being chased at night down a path in a remote part of campus. Upon reaching one of the emergency contact devices installed by the university for use in these situations, her pleas for help are met by derision and ridicule from the computerized system. As the frightened student yells at the unhelpful device, "What the hell is wrong with you? I'm going to die," the mechanical voice berates her as a "stinky bee-otch." Getting transferred to a different computerized operator is no better as the frantic student is scolded, "You dumb blonde bi*ches don't ever understand, always crying about rape. Suck it up."

In 2007, the student newspaper at Central Connecticut State University (CCSU) ran a purportedly satirical, student-authored "opinion" piece entitled "Rape Only Hurts If You Fight It."  The insensitive discourse is too patently offensive to be quoted in this post (but a transcription is available here). One among many points of limited social value was the suggestion that rape afforded ugly women an otherwise unavailable opportunity to experience sex with a man who was not drunk. This editorial was roundly criticized in the press and the target of public protests by students.  It was headline news for weeks in the state's newspapers, news services and on-line forums. Yet, when I talk about this incident in class, my students have never heard of it.

"Those who cannot remember the past are condemned to repeat it." Never have these insightful words of philosopher George Santayana been more appropriate and relevant than when applied to undergraduate college students. Although, in this instance, it doesn't appear so much an issue of failing to remember the past, but rather of being oblivious to what happens around them.  I suppose if the earlier incident had involved Kim Kardashian or LeBron James, it would have been well known and remembered and the lessons learned. But it's not as if the CCSU incident was reported only in the mainstream media. Rather, it was a hot topic ("viral" seems to be the new term) in the social media and internet world to which our students are purportedly so closely connected.  Yet, nothing was learned.

If we are to accept as an excuse that today's college students were merely clueless teenagers four short years ago, then let it serve as a reminder to us as educators that there is significant and vital work to be done. The people sitting in the seats in front of us may look like adults, but in many ways they are so naive in their understandings of the world around them. References to Watergate, Monica Lewinsky, Enron and even, as I have discovered, the nomination of Supreme Court Justice Samuel Alito are as far removed from their consciousness and understanding as the Fall of the Roman Empire or the Crusades. We must seize and utilize every available teachable moment, for their value is as fleeting as a teenager's Facebook status.

A blue emergency phone:


With great trepidation, but in the greater interests of education, I have embedded a video of the offensive skit below.
WARNING!! SEXUALLY EXPLICIT LANGUAGE AND OFFENSIVE COMMENTARY!