New Faces of the First Amendment: The Philosopher, the Pastor, and the Publisher

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6 Responses

  1. A.J. Sutter says:

    Interesting post, poorly reciprocated by a couple of hasty, devil’s advocate questions:

    1. “… require that courts balance national security and sovereign self-preservation concerns against trans-border First Amendment interests”: doesn’t this beg the question of whether such interests exist at all?

    2. Has Jones actually been charged with any crime? It seems as if the First Amendment protected him very well. That he was pilloried for speaking irresponsibly shouldn’t be an issue. The fact that one is exercising a freedom doesn’t mean that one is necessarily acting wisely. Could some of the discourse that fetishizes the First Amendment be to blame for leading people to believe that there is always something sacred about the exercise of that right, no matter how stupid their actions in fact are?

    3. ”[The Espionage Act] has never been used to prosecute a newspaper, website, blog, or other publisher of truthful information.” — have there been prosecutions under the Act for publication of false information? In any case, isn’t espionage more damaging, and therefore prosecution more warranted, when the information is truthful?

  2. Timothy Zick says:

    Thanks, A.J., for the comments/questions. A couple of responses/clarifications:

    1. The Court accepted in Kleindienst v. Mandel (1972) that there are indeed trans-border First Amendment interests at stake in some alien exclusion cases. The interests are those of citizens who wish to hear, speak to, and asociate with the alien seeking entry. Whether the alien ought also to have some recognizable First Amendment interest in such cases is something Gerald Neuman has addressed. I look at his work and offer my own observations in one of my draft chapters.

    2. Jones was never charged with any crime. My broad point is that his speech is not merely “domestic.” It had trans-border effects — rather serious ones, in terms of the ensuing riots. Jones’s speech raises interesting questions regarding existing incitement doctrine and First Amendment exceptionalism. The “fetishization” of free speech is something we are likely to hear a lot more about in the coming years, as speech transcends territorial borders.

    3. I don’t know whether the Espionage Act has been used to prosecute publication of false information. The information WikiLeaks published is truthful, though, and it is the case that no publisher of truthful information of public concern (other than a government employee) has been prosecuted under its provisions. The Justice Department may, of course, pursue some other theory of the case (i.e., unlawful possession of the materials or conspiracy to procure them). But at least in its public statements, it has focused on publication of the war and diplomatic materials. My point in raising WikiLeaks is to highlight a new challenge to governmental control of information flow and a possible new face of freedom of the press in the twenty-first century.

  3. Here is more information about Dr. Terry Jones being denied his right to free speech. Dr. Jones, Founder and President of his organiziation, Stand Up America Now along with his Assistant Director Wayne Sapp were both jailed on April 22, 2011, in Dearborn, MI. Both men will appear in court on Thursday, September 8, 2011 at 2pm, in Detroit. The Thomas More Law Center of Ann Arbor, MI, is representing both men.

  4. Howard Wasserman says:

    And it continues the trend of First Amendment heroes being something of a rogues’ gallery, as it long has been.

  5. Ken Rhodes says:

    >>The fact that Jones’s expression apparently led in short order to deadly international riots raises the intriguing, but thus far unresolved, question whether the First Amendment incitement standard can or should apply to a citizen’s domestic speech that causes international harm.>>

    Post hoc ergo propter hoc?

    I find the expression “led to” to be at least questionable. Yes, one event “led to” the next one in the chronological sense, but I will never blame Michael Schwerner’s registering of black voters for his murder; the blame falls on the men who killed him.

  6. Howard Wasserman says:

    Tim doesn’t need me to defend his point, but I will: Suggesting causation between Jones’s expression and subsequent violence is not the same as blaming Jones for that violence. Similarly, suggesting causation between Mickey Schwerner’s activities and his murder is not the same as blaming Schwerner. Both acts *motivated* the subsequent violence, at least in the minds of the perpetrators. That does not mean Jones should be punished for his expression–clearly he would not be under Brandenburg (because there is no intent) or any other viable free-speech standard.