Tagged: free speech

0

FAN 118 (First Amendment News) University of Cape Town Disinvites Flemming Rose — Floyd Abrams Dissents

Note: Below is a heretofore unpublished letter from Floyd Abrams. It follows another one recently posted on this blog by Professor Nadine Strossen. Vice-Chancellor Max Price, to whom both letters were primarily directed, was invited to reply. (Links have been added for reference purposes.) 

* * * *

July 24, 2016

Dear Vice-Chancellor Price:

I am a practicing lawyer in the United States who has devoted the better part of my professional career to defending freedom of expression. I am also a Visiting Lecturer at the Yale Law School, have written two books and many articles about freedom of expression around the world, and have spoken about the topic in a number of nations including, by way of example, India, Japan, Sri Lanka, Malaysia, Great Britain and—of particular relevance—South Africa. I was one of a number of foreign scholars who participated in advising the drafters of the South African Constitution. I have spoken about issues relating to freedom of expression in Johannesburg, Cape Town and Pretoria. I have read your statement about the decision of University of Cape Town to withdraw the invitation to Flemming Rose to deliver this year’s  TB Davie Memorial Lecture. I take the liberty of writing this letter to you because your decision is not only of consequence to your university and to your country but to democratic nations and universities in them throughout the world.

Floyd Abrams

I would like to make two brief observations at the outset.

The first is that I am not writing to you to urge you to adopt or to apply American standards in deciding who may be invited. As your statement correctly observed, the framers of your Constitution quite deliberately adopted a general right of free expression subject to certain specific limitations relating to propaganda for war, incitement of imminent violence, and “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.”

The second is that I am not writing to suggest that the cancellation by a university of an invitation to speak made to a  prominent  public figure is unique to South Africa. Quite the opposite is true. In the United States, a number of invitations have been made and then withdrawn by universities to prominent individuals including a former Secretary of State and the current head of the International Monetary Fund after protests were feared if the speaker was permitted to offer her views. Indeed, it is precisely because of my strong belief that the decisions of those American universities—and there are many of them– were so shameful and so contrary to basic principles of academic freedom that I take the liberty of writing to you.

UnknownAt the outset, nothing in the South African Constitution lends any support to your decision. Nothing that Mr. Rose has ever said can possibly be said to constitute propaganda for war. He has never urged violence against anyone or sought to incite it. Your statement observes that “Mr. Rose is regarded by many around the world as … someone whose statements . . . possibly amount to hate speech.”. I appreciate and honor your unwillingness to say that you credit any such an insupportable charge. But if you are unwilling to do so—and there is no basis for doing so—you can hardly rely on the notion of incitement as a basis for cancelling the invitation. I note in that respect that even the clause of the South African Constitution that limits free speech protection to advocacy of racial hatred or the like does so only when the speech at issue “constitutes incitement to cause harm”.

Writing from afar, I cannot comment specifically on your expressed concern about the security risks of permitting Mr. Rose to appear except to say that your nation, as mine, has experienced security risks in the past and when aware of them has been able to protect speakers and listeners alike. The security question is not whether it can be provided; it is whether freedom of speech on your campus is so important that it is worth doing so, with all its risks. Your Academic Freedom Committee obviously thought it was. From any perspective that honors academic freedom, that is a necessary conclusion.

Dr. Max Price

Dr. Max Price

The same is true of your stated concern that inviting Mr. Rose may have the perverse effect of limiting rather than vindicating academic freedom since he “represents a provocatively—potentially violently—divisive view.” Of course, Mr. Rose himself offers provocative views. I am sure that is why he was invited. But he hardly “represents” a “potentially violently” view about anything. The risk of violence is at all not from him but from those who simply do not accept core notions of freedom of expression and academic freedom. To yield to those who cannot abide freedom of expression that they find abhorrent is to abjectly surrender to them.

There remains the first basis articulated by you for rescinding the invitation to Mr. Rose—concern about provoking conflict on campus. It is, I am well aware, awfully easy for people thousands of miles away from your campus and whose views you have not sought, to presume to advise you that even if there is a risk of conflict on your campus that follows or accompanies a speech by Mr. Rose, it is one worth accepting. Who needs, you may well ask, such second-guessers? All I can say is that those of us who weigh in on the issue from abroad do so because we care about your country, are impressed by its Constitution, and are often in awe of your Supreme Court and its liberty-protecting rulings. We also offer our views because the decision to disinvite by your great institution is one that will be viewed carefully by academic institutions around the world as they decide how to respond in similar circumstances.

The very first TB Davie Memorial Lecture was delivered by Chief Justice Centlivres, the Chancellor of your university, on May 6, 1959. He then summarized what he characterized as Professor’s Davie’s “articles of faith” as follows: “The first was that a university is primarily a centre of learning, the second that a university flourishes only in an atmosphere of absolute intellectual freedom, and the third, that the pre-eminent virtue of university life is intellectual integrity,.” Guided by those precepts, it is difficult to understand or accept the cancellation of Mr. Rose’s appearance.

Respectfully submitted,

Floyd Abrams

_______________________________________________________

News Update: Michael Cardo, UCT: A tale of two lecturers, PoliticsWeb, July 25, 2016 (“This coming weekend, the University of Cape Town will host Hamza Tzortzis, a highly controversial lecturer who propagates a radical version of Islam. His visit to the campus follows hot on the heels of an executive decision to bar Danish journalist Flemming Rose from delivering the 2016 TB Davie Memorial Lecture on academic freedom.”) 

1

FAN 117.3 (First Amendment News) University of Cape Town Disinvites Flemming Rose — Nadine Strossen Dissents

In the classic expression of freedom of speech and assembly, UCT’s policy is that our members will enjoy freedom to explore ideas, to express these and to assemble peacefully. The annual TB Davie Memorial Lecture on academic freedom was established by UCT students to commemorate the work of Thomas Benjamin Davie, vice-chancellor of the university from 1948 to 1955 and a defender of the principles of academic freedom. Organised by the Academic Freedom Committee, the lecture is delivered by distinguished speakers who are invited to speak on a theme related to academic and human freedom. 

* * * *

Note: Below is a heretofore unpublished letter from Professor Nadine Strossen. This coming Wednesday FAN will post another dissenting letter, this one by Floyd Abrams. Additionally, Vice-Chancellor Max Price, to whom the letter is primarily directed, is invited to reply should he be so inclined. (Links have been added for reference purposes.) 

July 22, 2016

Dear Vice-Chancellor Price, AFC Chair Professor Rousseau, and Professors Hendricks and McClachlan-Daniels:

UnknownAs someone who was honored to deliver the TB Davie Memorial Lecture in 2011, I was inspired by the University of Cape Town’s proud history of defending academic freedom, and its ongoing commitment to doing so, including through this Lecture and the work of the Academic Freedom Committee. I also recall fondly Dr. [Max] Price’s cordial hospitality and  appreciated support for the AFC and the Davie Lecture.

I applaud the AFC’s March 2015 decision to invite Flemming Rose to deliver the 2016 Davie Lecture, and I am heartened by the AFC’s refusal to rescind that invitation despite apparently great pressure to do so from both within and beyond UCT. Having read Mr. Rose’s enlightening book, The Tyranny of Silence, as well as many other publications by and interviews of him, I consider him one of the most principled, courageous exemplars of intellectual freedom and freedom of conscience, including freedom for religious and other beliefs. I was therefore deeply honored to present to him the biennial Friedman Prize for Advancing Liberty, awarded by the Cato Institute, in New York City on May 25, 2016. For your information,  I append below this letter the text of the remarks that I delivered on that occasion.

maxresdefaultOf course, I would neutrally defend Mr. Rose’s right to speak at UCT  — and the UCT community’s right to hear his ideas – even if I strongly objected to his ideas. But he is especially deserving of a forum such as the Davie Lecture because his ideas have been so widely caricatured and misunderstood, and because these ideas are urgently important precisely due to the sensitive nature of the issues they address.

 For the foregoing reasons, I was deeply disheartened to learn recently that UCT had overridden the AFC and breached the commitment to host Mr. Rose to deliver the 2016 Davie Lecture. I was particularly disheartened by the reasons set out for that action in Dr. Price’s recently released letter, dated July 12, 2016.

These are the very same reasons that regularly have been cited to suppress the expression of any view that is politically unpopular at the particular time and place. In the U.S., for example, these were the reasons that too many universities cited for barring civil rights advocates from speaking during the twentieth-century Civil Rights Movement. Likewise, they are the same reasons why too many U.S. universities more recently barred “Black Power” activists from speaking. In a nutshell, the arguments both then and now are that the suppressed ideas could well offend other people, threatening their most cherished personal beliefs and community values, and potentially leading to violent reactions by those who are thus offended.

Professor Nadine Strossen

Professor Nadine Strossen

I have read the persuasive responses that have been issued to Dr. Price’s letter by the 2015 Davie Lecturer, Kenan Malik, and by the Index on Censorship, as well as by the AFC and Flemming Rose himself. I will not repeat the powerful arguments they made.  Rather, I will confine myself to making several additional points.

First, why does UCT succumb to the victim-blaming approach in this context that it would surely eschew in other contexts? To say that Flemming Rose should not advance ideas that others might find provocative and respond to with violence, seems to me the same as arguing that women should not wear certain clothing that others might find provocative and respond to with violence.

Second, Dr. Price’s letter references the limits upon free speech that the South African Constitution sets out, which are also generally accepted in other legal systems.  Yet the letter doesn’t expressly contend – nor could it credibly do so – that anything Flemming Rose has said, or is likely to say, would transgress any of those limits.  Indeed, apparently acknowledging as much, Dr. Price’s letter makes only the tentative, qualified observation that “Mr. Rose is regarded by many around the world as..someone whose statements.possibly amount to hate speech.”

As any survey of the media will reveal, if universities declined to host any speakers whom some people consider to have made statements that “possibly amount to hate speech,” then they would have to ban from campus just about everyone who is addressing any important, contentious, sensitive issue. For example,  in the U.S., many critics recently have denounced “Black Lives Matter” protestors as engaging in hate speech, even blaming such speech for allegedly instigating murders of police officers.

Dr. Max Price

Dr. Max Price

Flemming Rose’s speech clearly is not “advocacy of hatred . . . that constitutes incitement to cause harm,”  which the South African Constitution excludes from free speech protection (as quoted in Dr. Price’s letter). First, there is no basis for concluding that Mr. Rose would say anything that could fairly be considered “advocacy of hatred that is based on.religion.” Moreover, even if someone did engage in such “advocacy,” it would still be protected speech, unless it also “constitutes incitement to cause harm.” To the best of my knowledge,  not even Flemming Rose’s most unfair, harshest critics have charged him with “incitement” – a legal term of art that means intentionally spurring on listeners who are supportive of his views to commit harm against third parties, in a context where his sympathizers are actually likely to do so imminently. And if any such charge has been leveled, it would be patently unjustified.

If South Africa withheld free speech protection for non-inciting statements that merely criticize certain religious beliefs, or actions that are based on certain religious beliefs, then it could not protect many views that have been widely aired around the world:  for example,  criticism of’ discriminatory views and actions concerning LGBTQ individuals that are held by many Christian and other denominations and their adherents.

Third, Dr. Price’s invocation of “the rise in extremist terrorist groups” as somehow allegedly justifying suppression of Flemming Rose’s speech is also part of a general pattern that has been used to suppress a wide range of freedom, all over the world, not only in the recent past, but also historically. Ironically, this was precisely the topic of my 2011 Davie Lecture:  the unjustified violations of academic freedom in the name of fighting “the War on Terror.”

Given that this “War” is likely to remain “The New Normal” worldwide, it will remain an all-too-convenient, but unjustified, rationale for suppressing academic and other freedom.  This danger was recognized by none other than the namesake of the TB Davie Memorial Lecture himself. Let me quote a passage from my Davie Lecture, which quoted Dr. Davie’s pertinent observations.

“In his 1948 Inaugural Address, upon being installed as UCT’s Principal and Vice-Chancellor, Dr. Davie noted that `[r]ecent history has…shown …how easily and almost imperceptibly Universities can be deprived of their freedom.’  In words that are chillingly apt today  [almost seven] decades later, he warned: `Controls and restrictions [that are] imposed and accepted under conditions of war are only too meekly submitted to, even when the conditions necessitating their imposition have disappeared.'”

Fourth, I would like to add to the critiques that have already been made of Dr. Price’s argument that proceeding with Flemming Rose’s lecture “might retard rather than advance academic freedom.”  This reminds me of the much-maligned statement by a U.S. military official during the Vietnam War, that “we had to destroy the village in order to save it.”

It is also the same argument that the U.S. Supreme Court unanimously rejected in the landmark 1997 case of Reno v. ACLU, in which the Court for the first time upheld freedom of speech for the then-new medium of online expression. The U.S. government had argued that individuals might avoid an uncensored Internet “because of the risk of exposing themselves or their children to harmful material,” and therefore that censorship could have a net positive impact on free speech. The Court resoundingly repudiated this Through-the-Looking-Glass argument for the same reason that it is unpersuasive in the current context:

“We find this argument singularly unpersuasive…[I]n the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”

Fifth and finally, I am troubled by the ongoing threat to academic freedom that Dr. Price’s letter signals. On the one hand, he  asserts that UCT “hope[s] never again to have to interfere with an invitation to deliver a lecture on academic freedom.” On the other hand, though, he later endorses  “a considered version of academic freedom that is avowedly sensitive to the concurrent rights to dignity and freedom from harm.” In other words, it is only his version – or UCT’s “official” version – of academic freedom that will be honored, not that of the AFC, or the viewpoint-neutral version that would be consistent with the South African Constitution and UCT’s own proud traditions, as exemplified by TB Davie.

In light of the positive experience that I was so honored to enjoy as a prior Davie Lecturer -the same positive experience that Kenan Malik described in his response to Dr. Price’s letter – and in the constant hope that “more speech” will prevail over censorship, I respectfully urge reconsideration of the decision not only to “disinvite” Flemming Rose from giving the Lecture, but also apparently to exclude him from speaking at UCT altogether, even as part of a debate or panel presentation. I don’t think that bringing any speaker to campus could reasonably be viewed as anointing that speaker “as the chosen champion of the University of Cape Town,” as Dr. Price says. Certainly, when I had the privilege of delivering the Davie Lecture, I saw myself as the champion only of my own views on academic freedom; I did not see myself as even a spokesperson for UCT, let alone its “champion.” By continuing to create fora for discussion and debate by and with speakers expressing a range of views – including such an important thinker, writer, and activist as Flemming Rose — UCT itself would continue as “the chosen champion” of academic freedom.

 Very truly yours,

 Nadine Strossen

John Marshall Harlan II Professor of Law,  New York Law School

Immediate Past President, American Civil Liberties Union (1991-2008)

APPENDIX   Read More

1

The Terrorist’s Veto

We live in terrorist times — post-Charlie Hebdo times. In this brutish world the target of attack is liberty as we know it, the kind in which people come together to discuss “Art, Blasphemy and the Freedom of Expression.” But as recent events in Copenhagen reveal, even in that world armed guards may not be enough to turn back the barbarity at the door. What to do?

Carsten Jensen, a Danish author and political columnist, urges us to reconsider our commitment to free speech freedom: “If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful.”

Fair question, fair point. So is hate speech fruitful? Just for the sake of argument, let us say that it is – that vibrant criticism of a radical fringe of a religious group is important to the wellbeing of democratic rule. What then? I suspect the temptation to roll back freedom would be much the same. Why? Because the terrorists have terrorized us.

The terrorist’s veto is the savage cousin of the heckler’s veto. The logic of both is the same: freedom of speech is abridged in order to prevent the dangerous behavior of the reacting party. Once such veto power is granted, either formally or functionally, the hostile audience gets its way while freedom flees.

It really doesn’t matter if the speech in question is hateful or political or what have you. One only need look back in history to see how Salvation Army members, Jehovah’s Witnesses, Socialists, labor activists, racial justice activists, and political activists were silenced by the veto power. And recall that Professor Harry Kalven coined the phrase “heckler’s veto” in connection with bigoted opposition to free speech freedom in support of racial justice. (See his The Negro and the First Amendment (1965).)

It makes for a strange legal brew: once empowered, the veto renders the lawful unlawful; it turns liberty into license; and in the process reconstitutes our system of constitutional freedom in favor of ruthless anarchy. In his 1897 Introduction to the Study of the Law of the Constitution, the famed British jurist and constitutional theorist A.V. Dicey contested such legal logic:

[N]o meeting which would not otherwise be illegal becomes unlawful because it will excite opposition which is itself unlawful, and thus will indirectly lead to a breach of the peace. The plain principle is that A’s right to do a lawful act, namely walk down the High Street, cannot be diminished by X’s threat to do an unlawful act, namely to knock A down.

To develop Dicey’s point a bit, there is something profoundly disturbing about conditioning one person’s lawful free speech rights based on the degree of unlawful hostility demonstrated by the speaker’s adversaries. (See Note, “Constitutional Law — Unconstitutional Abridgement of Free Speech by Municipal Ordinance,” 24 N.Y.U. L. Rev. 891, 893 (1949).) In this regard, Professor Franklyn Haiman put it powerfully nearly a half-century ago when he countered: “Only by the firmest display of the government’s intention to use all the power at its disposal to protect the constitutional rights of dissenters will hecklers be discouraged from taking the law into their own hands.”

What is really at stake here is not so much the value of so-called hate speech as the willingness of a free society to recommit itself to freedom in the face of ferocious opposition. Having grown fat on freedom, we are use to tolerating speech with which we disagree if only because the consequences are typically of no moment. Hence, we defend the free speech principle because it’s risk-free. To borrow from old Tom Paine, we are “sunshine patriots” when it comes to defending free speech freedom. But if they bad guys ratchet up the consequences of our toleration, will we continue hold firm to our commitment?

There is no escaping it: In a democracy committed to the principle of free speech, the veto power – be it that of the heckler or the terrorist – must not be permitted to silence a society. For if you take the risks out of freedom, nothing of real value remains. In such a world, the tyranny of the veto is emboldened by the cowardice of the people.

1

Fifty Years of “I know it when I see it.”

On June 22, 1964, Justice Potter Stewart coined the phrase “I know it when I see it” in his concurring opinion in Jacobellis v. Ohio. Fifty years later, that expression holds the distinction of being one of the few modern legal phrases to become a regularly accepted expression among educated Americans. The half-century anniversary of Jacobellis provides a fitting opportunity to ask why “I know it when I see it” has enjoyed such popularity and what lessons that phrase and its history might hold for us today.

Jacobellis reversed the conviction of an Ohio movie theater manager for showing obscene material in the form of the French film Les Amants (The Lovers), which included a sex scene at its conclusion. The court’s 6-3 decision was highly fragmented, with six opinions in total and the plurality garnering only two votes.

Potter Stewart

In a short 144-word concurring opinion, Stewart wrote that he found it almost impossible to define obscenity precisely, which should only include “hard-core pornography.” His now famous line concluded the opinion:

 “But I know it when I see it, and the motion picture involved in this case is not that.”

At the time, the pithy phrase actually garnered little interest in the public sphere. Many newspapers chose instead to focus on another obscenity case decided that same day, Quantity of Books v. Kansas. Those journalists who did write about Jacobellis largely ignored “I know it when I see it” and chose to focus on the legal technicalities the case posed.

While it is difficult to pinpoint exactly when Stewart’s iconic expression became common, we can chart its growing popularity via Google’s Ngram search engine. Google Ngram measures the percentage of English language books that contain a phrase up to five words long. Because “I know it when I see it” is seven words, I ran the search for each five-letter segment of the phrase (“I know it when I;” “know it when I see;” “it when I see it.”). The graph clearly shows the steeply rising and still growing interest in Stewart’s phrase, starting slightly after 1964:

I know it when I see it Ngram

 

The Ngram search also reveals some interesting instances of similar phrases, both legal and not, pre-dating Jacobellis. Consider two examples: In an obituary for Benjamin Cardozo that ran in the Columbia, Yale and Harvard law journals in 1939, Learned Hand praised Justice Cardozo for his wisdom, writing:

“And what is wisdom — that gift of God which the great prophets of his race exalted? I do not know; like you, I know it when I see it, but I cannot tell of what it is composed.”

Read More

3

Torts, Bans, and Democratic Persuasion: A Reply to West, Fleming, and McClain (with help from Norton)

At the start of the symposium on When the State Speaks, Paul Horwitz praised much of the book’s argument and its conclusions, but he worried that public officials might push the state’s expressive powers in problematic directions. This sort of worry led him and Steve Calabresi to argue that the book is too strong in its conception of democratic persuasion. For example, they raise concerns about my argument that the tax privileges of 501(c)3 status should be extended only to groups that serve the public good.

I argue that the law already has a public good requirement for receiving tax privileges, but that the definition of “public good” is often vague and potentially arbitrary. The book defines the public good requirement in a more precise and consistent way that would be less open to abuse than the current standard. To serve the public good, groups should accept the ideal of freedom and equality for all citizens. A group that supports hatred of minorities and the curtailment of their rights should not receive public support in the form of tax privileges.

In this post I respond to scholars who are pushing me in the opposite direction from Paul and Steve. Robin West, James Fleming, and Linda McClain all agree with me that the state should promote an ideal of free and equal citizenship. Their arguments help to motivate a strong conception of democratic persuasion, in response to Paul’s and Steven’s concerns. However, West, Fleming, and McClain would allow types of democratic persuasion that are more activist than the book’s. Would their proposals risk violating free speech rights, and would they be consistent with my approach? Read More

0

Democratic Values v. Virtues: Brettschneider on Ordered Liberty

How can a liberal democracy promote its central values, such as autonomy and non-discrimination, at the same time that it protects basic rights, such as free speech? One common view is that these two goals are incompatible. According to this view, free speech rights commit liberal democracy to “neutralism,” which prohibits favoring any values. Under a neutralist approach, liberal democracy cannot promote its core values of autonomy and non-discrimination. It has no role in encouraging responsibility and virtue among its citizens.

James Fleming and Linda McClain offer a powerful challenge to the neutralist view. They propose an account of “autonomy as responsibility” that reconciles the two goals of protecting rights and promoting a set of public values and virtues. Liberal democracy upholds the rights of citizens out of respect for their autonomy, or their ability to use their reason freely to choose their own ends. For citizens to be able to make decisions as autonomous agents, they must have the right to choose their religion, associations, and political positions. But it is also important in an autonomy respecting regime that the government cultivate and encourage good decision-making. It would be pointless to respect autonomy if no actual people exercised their autonomy well. The government thus has an obligation to promote the capacity of citizens to make better and more responsible decisions. The government, including the Supreme Court, should pursue the twin aims of protecting rights and promoting individual autonomy and responsibility. This view differs from perfectionist theories, which advance particular comprehensive doctrines, and neutralist accounts, which refuse to promote values altogether. Read More

0

Washington Law Review, Issue 87:2 (June 2012)

Volume 87  | June 2012 | Issue 2

June 2012 Symposium: The First Amendment in the Modern Age

Foreword:

The Guardians of Knowledge in the Modern State: Post’s Republic and the First Amendment

 

Ronald K.L. Collins & David M. Skover

Essays:

The First Amendment, the Courts, and “Picking Winners”

 

Judge Thomas L. Ambro & Paul J. Safier

Public Discourse, Expert Knowledge, and the Press

 

Joseph Blocher

The First Amendment’s Epistemological Problem

 

Paul Horwitz

A View from the First Amendment Trenches: Washington State’s New Protections for Public Discourse and Democracy

 

Bruce E.H. Johnson & Sarah K. Duran

Democratic Competence, Constitutional Disorder, and the Freedom of the Press

 

Stephen I. Vladeck

Reply:

Understanding the First Amendment

 

Robert C. Post

Bibliography:

Robert C. Post, Selected Bibliography of First Amendment Scholarship

 

Washington Law Review

Comments:

Defining “Breach of The Peace” in Self-Help Repossessions

 

Ryan McRobert

Addressing the Costs and Comity Concerns of International E-Discovery

 

John T. Yip

2

Initial Thoughts on the Stolen Valor case

Although most people are focusing on Chief Justice Roberts’ vote to uphold the healthcare law, it turns out the Chief also voted with the “liberals” today to strike down the Stolen Valor Act as violating the First Amendment.  This is an important First Amendment opinion with lots of points for discussion.

The Stolen Valor Act makes it a misdemeanor to “falsely represent oneself as a recipient of military honors.  The final vote from the Court was 6-3, but the six votes were spread between Justice Kennedy’s plurality opinion (joined by the Chief and Justices Ginsburg and Sotomayor) and Justice Breyer’s concurring opinion joined somewhat surprisingly by Justice Kagan (more on that in a minute). The dissent was written by Justice Alito, joined by Justices Scalia and Thomas.

I will just note a few things that captured my attention after a first read:

Reliance on the marketplace of ideas: Although Justice Kennedy spends a lot of time in his plurality opinion discussing how the current statute does not require prosecutors to demonstrate any material harm resulting from the false speech, he also notably places a lot of confidence in the marketplace of ideas to discredit false statements.  In particular, he relies heavily on the ability of counterspeech to flush out the truth.  In this case, Kennedy writes, the Government could easily post online a database listing those who have received military honors.  Justice Breyer’s concurring opinion also discussed the importance of the marketplace of ideas and encouraged the Government to embrace “information-disseminating devices” to correct the truth.

Read More

5

Leakers and the First Amendment

There has always been an active debate about whether the First Amendment affords government outsiders (like the media) any protection when they disseminate classified national security information without authorization.  As I mentioned in my blog post last week, however, critics of the most recent round of high-profile leaks have targeted their attacks almost exclusively on the leakers themselves and not on the news outlets that published the leaks.  So the question is, do leakers have any First Amendment right to disclose national security information to government outsiders without authorization?

At the outset, let me just say leakers have a variety of statutory arguments they might make if prosecuted under the Espionage Act and related statutes.   Charlie Savage recently outlined a few of these arguments here.  In addition, one of the obstacles the government might face is that in order to prove that the disclosure was harmful to national security, they might have to reveal even more national security secrets (often called “graymail”).  This is one reason why the Drake prosecution fell apart.

Read More

4

(Don’t) Blame the Messenger: What to Do about National Security Leaks

Many thanks to Danielle Citron for inviting me to serve as a guest blogger.  Lately I have been following the discussion about the most recent series of national security leaks, including those that detailed the White House’s terrorist “kill lists,” the foiling of a terrorist plot by a double agent in Yemen, and cyberattacks against Iran.  Outrage about leaks is hardly new.  Neither are leaks.  (See my prior article detailing the long history of leaks in this country.)  What is new is that the outrage this time around seems to be directed at the leakers and not at the media outlets that published the leaked information.

Back in December 2005, when the New York Times published its story about the NSA’s warrantless wiretapping program, the paper and its reporters were condemned just as vigorously as the leakers themselves.  It is interesting to think about why the politicians and commentators have held their fire against the media after this latest round of leaks (at least so far).  Perhaps critics’ suspicions that these leaks were politically motivated during an election year to make President Obama look like a strong leader has made them forget to take their usual shots at the “liberal media” that disseminated them to the public.  But given that leaks often appear politically motivated, this answer is not all that satisfying.

Read More