"[U]ntil a more 'technical solution' is in place, anyone who sees 'any piece of Opinion journalism ā including headlines or social posts or photos or you name it ā that gives you the slightest pause, please call or text me immediately.ā" ā Katie Kingsbury (acting editorial page editor, )
The New York Times' publication of an by Senator Tom Cotton (R-Ark.) ignited a firestorm of controversy over freedom of expression and the responsibilities of a free press. Though the matter is not, of course, a First Amendment issue, it is, nonetheless, one that implicates free expression values in a free society. In light of that, I invited a noted professor of journalism, someone with a background in media law and practices, to comment on the Cotton controversy.
is a professor at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University. His teaching and research have largely focused on First Amendment law and theory. He has published four books and numerous in-depth research articles on mass media and the First Amendment.
Professor Russomanno's op-ed, written specifically for First Amendment News, appears below.
_____________________________________
The controversy over the New York Times publishing an by an ardent supporter of President Trump reveals a misunderstanding of one of the most famous refrains in First Amendment history.
Prof. Joseph Russomanno
ā[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.ā With those words, borrowing from Enlightenment philosophy, Justice Oliver Wendell Holmes, Jr. unleashed a powerful force into American jurisprudence. He also created a cultural concept used by some to defend an āanything goesā morality when it comes to speech.
The 21st century exemplars of this approach are social media companies, perhaps most notably Facebook. Its CEO, Mark Zuckerberg, continually his hands-off, laissez-faire oversight of his empire by the marketplace of ideas.
'Everything Thatās Fit To Print'
Now along comes The New York Times. āEverything Thatās Fit To Print,ā it has claimed for more than a century. This apparently includes a recent piece by Senator (R-Ark.), an obedient supporter of Donald Trump. Expressing a preference for martial law over the rule of law. The title of the Cotton op-ed said it all: āSend In the Troops.ā He claimed that public response to George Floydās murder plunged American cities into āanarchyā that demands āan overwhelming show of force ā¦ with federal authority.ā
Swift criticism followed, not just for its content, but because the op-ed was published at all. More than 800 Times staff members a protest letter. One if its op-ed columnists, Michelle Goldberg, Cottonās essay as a fascist screed, noting profoundly that to engage with ideas of this sort ācreates a crisis for traditional understandings of how the so-called marketplace of ideas functions.ā In light of this incident, letās re-examine the marketplace metaphor.
Re-examining the marketplace metaphor
Predictably echoing the likes of Zuckerberg, Times opinion page editor James Bennett his decision to publish the Cotton piece by pulling a page directly from the marketplace of ideas playbook: āI believe in the principle of openness to a range of opinions, even those we may disagree with, and this piece was published in that spirit.ā Bennet a few days later.
While sharing a diversity of ideas is admirable, not every platform needs to be all things to all people. Not everything can ā or should ā be included. Instead, these platforms generally filter what they accept. This is what distinguishes journalism from mere information ā editors who assume gatekeeping roles, deciding what is worthy of inhabiting their marketplace of ideas and what isnāt.
The right of these private organizations to make such content decisions free of government interference is on solid legal ground (the unanimous Supreme Court opinion in Miami Herald v. Tornillo). Of course, the Times has that same right. The issue, however, encompasses not merely legal norms, but cultural norms as well. It is not unreasonable to expect the āGray Ladyā to safeguard the welfare of its audiences. Thatās in part why so many inside the paper are displeased, resulting in an internal civil war, according to editor . The result, as in the Washington Post: āthe paper late Thursday abruptly announced that Cottonās op-ed was the result of a ārushed editorial processā and ādid not meet our standards.āā
The norm: rejecting content
Publications and platforms reject content regularly. Ideally, the process is fair, methodical and improves the product. Even so, rarely are there regrets about any damage done to the marketplace of ideas. To publish every submission, on the other hand, would serve to diminish the value of every article, and of the publication overall.
Now, however, too many platforms lack the courage to regularly filter content, and instead serve as informational dumping grounds. Twitter, though, recently awoke from its Trump-induced hibernation to flag some of the Presidentās tweets. YouTube a video of doctors denouncing mainstream medicineās approach to COVID, determining that it created potential harm. But the Timesās Bennet wouldnāt do the same, though he later he never read Cottonās piece before deciding to publish it. The Times now says the essay fell short of the newspaperās standards and is reviewing the situation. This suggests that the essay should have been evaluated no differently than any other prospective publication, and not merely to expand the Timesās marketplace of ideas.
The flaw
The mistake the Times made with the Cotton piece ā thinking it needs to serve everyone by being the ultimate marketplace of ideas, straying from its own fit-to-print mantra.
Therein lies the key ā in not recognizing that there are many marketplaces of ideas. Not one of them needs to serve as the marketplace for global humanity, or even for one nation. Instead, itās time for every platform to recognize that its universe, and maybe even its profits, are finite ā yes, even you, Mr. Z.
So if there is a flaw in Holmes invoking the marketplace of ideas ā or, perhaps more importantly, in our understanding of it ā it is simply this: there isnāt a single marketplace. We need to āshopā for our ideas by visiting several markets. That contemporary lesson, of course, is not merely for us mortal citizens, but also for those who own and operate our various information platforms ā our marketplaces of ideas.
Not all information should be treated equally. Screen your content, and, yes, use your judgment to eliminate some. In the football of the great philosopher, Bill Belichick, āDo your job!ā
Related
David Bernstein, "," The Volokh Conspiracy (June 8) ("Constitutional protection of freedom of speech depends on cultural foundations that are being eroded, left and right.")
"," New York Magazine (June 5)
Street talk: the new face of government speech
Question: What if a mayor in South Carolina ordered a street painted with "Make America Great Again?"
Mauro on pending SCOTUS case
Over at the Freedom Forum, Tony Mauro recently this story:
Tony Mauro
The Supreme Court may soon add another key First Amendment case to its docket ā this time touching on the amendmentās lesser-known rights of assembly and petition [].
First Amendment scholars and advocates have filed friend-of-the-court supporting a petition in Mckesson v. Doe, urging the court to uphold its tradition of protecting the rights of protesters. [see , and re other amicus briefs]
In the case pending before the court, an unidentified person threw a rock and injured an unnamed Baton Rouge, La., police officer during a Black Lives Matter protest in 2016. The officer, referred to as āJohn Doe,ā sued DeRay Mckesson, who was a leader of the protest but not the person who injured the officer.
The concern expressed by First Amendment advocates is that if the leader of a protest group can be held liable for the wrongdoing of an unknown participant, valued forms of expression, assembly and petition will be chilled or silenced.
āThe Mckesson case addresses the issue of whether the organizer of a lawful protest can be held personally liable for misconduct of one of the protestors,ā said Floyd Abrams, senior counsel at Cahill Gordon & Reindel. āIf that were the case, the right to protest could far too easily and routinely be stifled.ā
Niehoff op-ed: "Stop blaming 'the media' for everything"
From The Detroit News: An by
When protests erupted this past weekend over the tragic murder of George Floyd, disruption and violence swiftly followed. In cities across the country, peaceful demonstrations devolved into riots. In all of these places, reporters and photographers put themselves in harmās way so that we might know the truth. They are the First Amendmentās first responders.
Prof. Len Niehoff
These days, it has become commonplace to make scapegoats of āthe media.ā We blame the media for everything: our divided country, our failed policies, our anxieties, and so on. It has become a national pastime and a drumbeat of political rhetoric. And itās dumb and dangerous.
The protests put this sensibility in stark display. Video and photographs from across the country showed journalists and photographers being harassed, arrested, assaulted, gassed and shot at by members of law enforcement. All while doing their jobs ā a job that the Constitution enshrines.
Of course, in many instances police and journalists were able to work productively, cooperatively and respectfully with each other. And doubtless some of the things that went wrong resulted from honest mistakes or misjudgments.
But the images of abuses are unforgettable. Police handcuffing an entire broadcast news crew. Officers taking aim at reporters and photographers, shooting them with pellets, and drenching them in pepper spray. A bloodied journalist lying on the ground receiving medical treatment. A freelance photographer in a hospital bed, blind in one eye from her injuries.
Related
Leonard Pitts, Jr., "," Baltimore Sun (June 8)
The Information Society Project & Abrams Institute condemn police violations of protestersā and journalistsā First Amendment rights
The statement from the Information Society Project & Abrams Institute was published in :
Call for Constitutional Protections for Protesters and the Press
The recent violence perpetrated against protesters seeking racial justice and against reporters covering these democratic protests is antithetical to the Constitutionās guarantees of free press, speech, petition, and assembly.
Protesters have taken to the streets out of frustration with years of racist law enforcement practices. In response, the Trump Administration and state and local governments across the country have repeatedly trampled on the First Amendment rights of both protesters and members of the press. Instead of seeking to de-escalate tensions, the President has urged governors to deploy the National Guard to āā the protesters, and threatened to send troops into American cities.
Police departments in many different parts of the country have countered peaceful protests with , ranging from tear gas to , from to and . The Trump Administration has approved and this despicable use of force; it relied on in order to in front of St. Johnās Episcopal Church in Washington, D.C.
Evidence shows that law enforcement agencies are specifically targeting journalists for violence and arrest. Incidents of covering the protests mount each day, including the arrest of and his team live on air in Minneapolis, and the police shooting of . Meanwhile, the President of the United States has declared the press the enemy of the people, and and even toward the press. He has engaged in a pattern of gaslighting, lies and propaganda more appropriate to an authoritarian state than to a republic of free people.
Protesters rely heavily on technology and social media platforms to organize peaceful demonstrations and avoid harm. In addition to the constitutional obligations of government, therefore, privately-owned social media platforms must also live up to their civic responsibilities as powerful mediums of communication in a democratic society. Social media platforms should reform their current business practices, including their use of algorithms, their methods of targeted advertising, and their moderation systems. All too often these practices reward extremism, conspiracy theories, and racial division. All too often they amplify incitement to violence and exacerbate polarization. And all too often they allow prominent and powerful people, simply because they are prominent and powerful, to bully others, act with impunity, and become a law unto themselves. Finally, social media companies have a duty to protect the privacy rights of protesters and not allow themselves to be used by law enforcement to track and harass people who are lawfully exercising their constitutional rights of speech, petition, and assembly.
These protests take place during a COVID-19 pandemic that has . In the emerging economic disaster, people of color were among the and the . Following the killing of an African American man, George Floyd, by officers of the Minneapolis Police Department, many Americans ā of all races ā had had enough. These inequalities evidence deep structural problems in American society and deep pathologies in our system of law enforcement.
Our American system of government protects the right of the public to call attention to such injustices and demand public accountability. And it protects the right of the press to cover these demonstrations, as well as the governmentās responses to them. The Constitution includes the rights of speech, assembly, and petition because public participation is the first step in curing whatever ails American democracy. It protects freedom of the press because without a free press, citizens cannot fairly assess the countryās problems and government officials would escape accountability for their actions.
By suppressing peaceful protest and attacking members of the press, the President, government officials, and law enforcement agencies subvert the First Amendment and undermine our democratic system of government.
To guarantee our constitutional rights, governments must take the following actions:
Halt all police violence directed toward peaceful protesters, and respect the rights of petition and assembly.
Halt all attacks on members of the press and any actions that unconstitutionally burden journalistsā ability to report on the protests.
End the militarization of the police, because these shows of force threaten to further chill the exercise of free speech and assembly.
Disclose law enforcement agenciesā policies for policing protests, as well as their policies for collecting and using data about protesters.
As academic institutions situated within an American law school, the Information Society Project and the Abrams Institute reaffirm our responsibility to defend First Amendment rights and advance justice and equality for all.
Related
Leonard Pitts, Jr., "," Baltimore Sun (June 8)
In the news: protests & First Amendment freedoms
"," First Amendment Watch (June 8) (Complaint )
Aubree Eliza Weaver, "ā, Politico (June 7)
Desmond Nugent, "," ABC 7 (June 6)
"ā, City Beat (June 5)
"" Governor's Office (June 4)
"," Fox 5 (June 6)
"," First Amendment Watch (June 3)
Editorial, "," New York Times (June 2)
Colorado high court announces 'true threats' criteria
Justice Monica M. MƔrquez
The case is (CO, 2020). In it, the Colorado Supreme Court was asked to decide whether a lower court erred in determining that threatening Twitter messages posted by a juvenile defendant were protected speech under the First Amendment or constituted an unprotected "true threat."
In deciding the matter the court refined its earlier formula for distinguishing a true threat from constitutionally protected speech. In doing so, it offered specific guidance for applying that test to statements communicated online.
In her opinion for a unanimous court, Justice declared that under the First and Fourteenth Amendments:
a true threat is a statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence. In determining whether a statement is a true threat, a reviewing court must examine the words used, but it must also consider the context in which the statement was made. Particularly where the alleged threat is communicated online, the contextual factors courts should consider include, but are not limited to
(1) the statementās role in a broader exchange, if any, including surrounding events;
(2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features;
(3) the manner in which the statement was conveyed (e.g., anonymously or not, privately or publicly);
(4) the relationship between the speaker and recipient(s); and
(5) the subjective reaction of the statementās intended or foreseeable recipient(s).
The matter was remanded "to the juvenile court to reconsider the adjudication applying this refined test."
āSee David L. Hudson, Jr., "," The Free Speech Center (June 5)
EFF: 'You Have a First Amendment Right to Record the Police'
Some from Sophia Cope & Adam Schwartz over at the Electric Frontier Foundation.
New book: the First Amendment & African Americans
Timothy Shiell, "" (SUNY Press, 2019)
Prof. Tim Shiell
"African Americans and the First Amendment" is the first book to explore in detail the relationship between African Americans and our āfirst freedoms,ā especially freedom of speech. utilizes an interdisciplinary approach to demonstrate that a strong commitment to civil liberty and to racial equality are mutually supportive, as they share an opposition to orthodoxy and a commitment to greater inclusion and participation. This crucial connection is evidenced throughout US history, from the days of colonial and antebellum slavery to Jim Crow: in the landmark US Supreme Court decision in 1937 freeing the black communist Angelo Herndon; in the struggles and victories of the civil rights movement, from the late 1930s to the late ā60s; and in the historical and modern debates over hate speech restrictions.
Liberty and equality can conflict in individual cases, Shiell argues, but there is no fundamental conflict between them. Robust First Amendment values protect and encourage demands for racial equality while weak First Amendment values, in contrast, lead to censorship and a chilling of demands for racial equality.
Forthcoming book on free speech & corporate surveillance
Jillian York, "" (Verso, March 2, 2021)
What is the impact of surveillance capitalism on our right to free speech? The Internet once promised to be a place of extraordinary freedom beyond the control of money or politics, but today corporations and platforms exercise more control over our ability to access information and share knowledge to a greater extent than any state. From the online calls to arms in the thick of the Arab Spring to the contemporary front line of misinformation, Jillian York charts the war over our digital rights. She looks at both how the big corporations have become unaccountable censors, and the devastating impact it has had on those who have been censored.
In "Silicon Values," leading campaigner Jillian York, looks at how our rights have become increasingly undermined by the major corporations desire to harvest our personal data and turn it into profit. She also looks at how governments have used the same technology to monitor citizens and threatened our ability to communicate. As a result our daily lives, and private thoughts, are being policed in an unprecedented manner. Who decides the difference between political debate and hate speech? How does this impact on our identity, our ability to create communities and to protest? Who regulates the censors? In response to this threat to our democracy, York proposes a user-powered movement against the platforms that demands change and a new form of ownership over our own data.
Political pressure is mounting on the Minnesota Department of Resources to fire Tyler Janke for his post about the attempted assassination of former President Donald Trump in July.
