Tagged: First Amendment

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FAN 194.1 (First Amendment News) Today — Washington Post Live hosts “Free to State: The Future of the First Amendment.

The Washington Post brings together journalists, scholars, business leaders and advocates to explore how the interpretation of our First Amendment rights have evolved in principle and practice, and what it means for a modern democracy.

Event Details

  • Tuesday, June 19, 2018
  • 3:00 PM – 5:00 PM (Doors open at 2:30)
  • The Washington Post Live Center, 1301 K Street NW, Washington, DC 20071

AGENDA

3:00 p.m.        Opening Remarks

  • Martin Baron, Executive Editor, The Washington Post @PostBaron

3:05 p.m.        The First Amendment and the Law

From courts to football fields to college campuses, a look at how key players in the free speech debate are shaping First Amendment law across the country.

  • Susan N. Herman, President, American Civil Liberties Union @SusanHermanACLU
  • Suzanne Nossel, Chief Executive Officer, PEN America @SuzanneNossel
  • Jesse Panuccio, Acting Associate Attorney General, U.S. Department of Justice @JessePanuccioFL

Moderated by Ruth Marcus, Deputy Editorial Page Editor, The Washington Post @RuthMarcus

3:35 p.m.        One-on-One with the Cambridge Analytica Whistleblower

Chris Wylie, the former Cambridge Analytica research director turned whistleblower, discusses the potential uses of big data to influence behavior and assesses how online communities are facilitating free expression and thought in the digital age.

  • Chris Wylie, Whistleblower; Former Director of Research, Cambridge Analytica @

Interviewed by Craig Timberg, National Technology Reporter, The Washington Post @craigtimberg

3:55 p.m.        Let’s Talk About ‘Political Correctness’

Promoting equality and inclusion is often at loggerheads with free speech. Speakers will discuss evolving norms of expression and representation in the areas of advocacy, popular culture and digital media.

  • Patrisse Khan-Cullors, Co-Founder, Black Lives Matter @OsopePatrisse
  • Hari Kondabolu, Comedian and Documentarian, “The Problem with Apu” @harikondabolu
  • Dylan Marron, Host, “Conversations With People Who Hate Me” @dylanmarron

Moderated by Sarah Ellison, Media Reporter, The Washington Post @Sarahlellison

4:25 p.m.        What The End of Net Neutrality Means for Online Speech

Experts debate what effect the repeal of net neutrality rules will have on access to and freedom of expression on the Internet.

  • Robert Atkinson, President, Information Technology and Innovation Foundation @RobAtkinsonITIF
  • Sen. Edward J. Markey (D-Mass.), Member, U.S. Senate Committee on Commerce, Science and Transportation @SenMarkey
  • Michael O’Rielly, Commissioner, Federal Communications Commission @mikeofcc
  • Jonathan Spalter, President and CEO, USTelecom @Jspalter

Moderated by Brian Fung, Telecommunications and Media Reporter, The Washington Post @b_fung ‏

4:55 p.m.       It’s No Joke: Comedy and Free Speech

Comedy can be used to explore uncomfortable subjects, provoke outrage, reveal truths and hold leaders accountable. Emmy and Grammy Award-winning comedian Patton Oswalt discusses the evolution of comedy as a form of free speech.

  • Patton Oswalt, Comedian and Actor @pattonoswalt

Moderated by Elahe Izadi, Pop Culture Writer, The Washington Post @ElaheIzadi

This is the second annual “Free to State” program, part of a series of events The Post is producing in partnership with the John S. and James L. Knight Foundation with support from The Freedom Forum Institute and The University of Virginia.

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FAN 178.1 (First Amendment News) Stanton Foundation — $$$ Funder of First Amendment Causes

Frank Stanton on cover of Time Magazine (Dec. 4, 1950)

When it comes to funding First Amendment causes, few foundations can rival the recent outlays of the Stanton Foundation (a later post will highlight the philanthropic work of Knight Foundation).

In a future post, I welcome the chance to interview some of the fine folks from the Stanton Foundation. Until then, here are a few words about the man and his legacy as embodied in the Stanton Foundation.

The Stanton Foundation was created by Frank Stanton (1908-2006), who is widely regarded as one of the greatest executives in the history of electronic communications and one of the television industry’s founding fathers.

Here is a sampling of some of the First Amendment and related causes the Stanton Foundation has funded:

  1. The Stanton Foundation Media Litigation Fellowship (2018)
  2. Duke wants to train more First Amendment lawyers. Here’s how it plans to do it (2018)
  3. Freedom of Expression Scholars Conference (2018)
  4. 2017-19 Frank Stanton Fellowship: Electronic Frontier Foundation
  5. Cornell Law School Announces Launch of New First Amendment Clinic (2017)
  6. Stanton Foundation grant expands new CWRU Law School lab dedicated to intellectual property and First Amendment issues (2017)
  7. ASU Law establishes First Amendment clinic with gift from the Stanton Foundation (2017)
  8. Does the 1st Amendment Protect Hate Speech on Campus & Online? (2017)
  9. The First Amendment and Hate Speech (National Constitutional Center, 2017)
  10. The State of Financial Disclosure Project (2017)
  11. Journalism professors lead research into future-proofing local TV news (2017)
  12. Rebecca Tushnet joins Harvard Law faculty as Professor of First Amendment Law: Stanton Professor of First Amendment Law (2016)
  13. 2016 Freedom of the Press Awards Dinner
  14. Stanford Law School to Establish First Amendment Professorship with $5 Million Gift (2015)
  15. FIRE Launches First Amendment Online Library (2015) (here too)
  16. Top First Amendment Lawyer to Head MFIA Clinic (2015)
  17. 2015 Richard S. Salant Lecture on Freedom of the Press
  18. SciCheck puts political claims under a microscope (2015)
  19. The Funders Behind the Fact Checkers (2015)
  20. Stanton Foundation Legal Fellowship
  21. Frank Stanton Professor of the First Amendment (Kennedy School of Government)

Snapshot of the man (from NYT obituary, Dec. 26, 2006)

Frank Stanton

“Dr. Stanton bore much of the criticism when Washington objected to CBS News’s coverage of the war in Vietnam and was threatened with jail in 1971. CBS had broadcast an hourlong investigative report called “The Selling of the Pentagon,” about a $30 million campaign by the Defense Department to improve its image, and the House Interstate and Foreign Commerce Committee demanded that he turn over material cut from the program. When he refused to comply, he was called before the committee.”

“He said the order amounted to an infringement of free speech and freedom of the press under the First Amendment. ‘If newsmen are told their notes, films and tapes will be subject to compulsory process so that the government can determine whether the news has been satisfactorily edited,’ he said, ‘the scope, nature and vigor of their news reporting will be inevitably curtailed.'”

YouTube Interviews (Television Academy Foundation)

  1. Executive Frank Stanton on his relationship with Bill Paley
  2. Executive Frank Stanton on “The Selling of the Pentagon
  3. Frank Stanton on Murrow, Severeid, and Klauber of CBS News
  4. Frank Stanton on the blacklist
  5. Executive Frank Stanton on Lyndon Johnson
  6. Frank Stanton on the transition between radio and television

Nadine Strossen on Frank Stanton 

 “Frank was a staunch supporter of the Shorenstein Center and the Kennedy School, retiring here in Boston after he left New York.  In his will, Frank left the bequest that through the Stanton Foundation allowed us to establish the Salant Lecture.  Frank Stanton insisted that this lecture be named not for himself, but for his friend and protégé, Richard Salant.”

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FAN 175.1 (First Amendment News) More from FIRE — New Podcast Series Charts History of Free Speech

“The podcast provides an engaging and inspiring history of free speech that is accessible to anyone interested in a topic that is fundamental to every human being and society. If you want to understand what’s at stake and know about the battles that our predecessors were engaged in the fight for free speech there can be no better place to start than with Jacob Mchangama’s podcast.”  Flemming Rose 

The folks at FIRE (Foundation for Individual Rights in Education) are on fire when it comes to almost anything having to do with free speech. They

And now, they have just released the first installment (an introduction) to an incredible podcast series on the history of free speech. It is titled: 

The series is spearheaded by Jacob Mchangama, a Danish lawyer, human-rights expert, and social commentator and the founder and director of Justitia, a Copenhagen think tank focusing on human rights and the rule of law. For six years he served as chief legal counsel at CEPOS. This year Mchangama is a Visiting Fellow at FIRE.

Why have kings, emperors, and governments killed and imprisoned people to shut them up? And why have countless people risked death and imprisonment to express their beliefs? Jacob Mchangama guides you through the history of free speech from the trial of Socrates to the Great Firewall.

Jacob Mchangama

Description

A prologue introduces the background of the podcast series and is being released today. The first official episode will be aired on February 1st. Subsequent episodes will be released on a bi-weekly basis.

Each episode focuses on a particular historical era or theme, providing listeners with a deeper understanding of how, where and why free speech has developed over time.

The first episode takes listeners back to ancient Athens focusing on the trial of Socrates and the crucial role that equal and uninhibited speech played in the world’s first democracy.

“We mustn’t allow free speech to fade into a feel-good slogan. It is an unintuitive principle with a rationale that many don’t appreciate and a history that many don’t know. Mchangama’s lucid history of free speech fills that gap and deepens our understanding of this precious concept” Steven Pinker 

The following episodes will visit places and eras such as Ancient Rome, Central Asia’s Golden Age, the Abbasid Caliphate, The Renaissance, Enlightenment and beyond.

The podcast will also feature “Expert Opinions,” interviews with leading historians and experts.

You can follow the podcast on the website (www.freespeechhistory.com), Facebook (www.facebook.com/freespeechhistory) and on Twitter (@CAPD_freespeech).

Disclosure: I work on FIRE’s online First Amendment Library and am also working with them on a forthcoming e-coursebook on free speech (stay tuned!).

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FAN 174.1 (First Amendment News) Text of Senator Jeff Flake’s Speech on Truth & Press Freedom

Text of remarks of Senator Jeff Flake of speech presented to the Senate on January 17, 2018.

C-Span video here (remarks begin at 23:01)

Mr. President, near the beginning of the document that made us free, our Declaration of Independence, Thomas Jefferson wrote: “We hold these truths to be self-evident…” So, from our very beginnings, our freedom has been predicated on truth. The founders were visionary in this regard, understanding well that good faith and shared facts between the governed and the government would be the very basis of this ongoing idea of America.

Senator Jeff Flake (C-SPAN)

 As the distinguished former member of this body, Daniel Patrick Moynihan of New York, famously said: “Everyone is entitled to his own opinion, but not to his own facts.” During the past year, I am alarmed to say that Senator Moynihan’s proposition has likely been tested more severely than at any time in our history.

It is for that reason that I rise today, to talk about the truth, and its relationship to democracy. For without truth, and a principled fidelity to truth and to shared facts, Mr. President, our democracy will not last.

2017 was a year which saw the truth – objective, empirical, evidence-based truth — more battered and abused than any other in the history of our country, at the hands of the most powerful figure in our government. It was a year which saw the White House enshrine “alternative facts” into the American lexicon, as justification for what used to be known simply as good old-fashioned falsehoods. It was the year in which an unrelenting daily assault on the constitutionally-protected free press was launched by that same White House, an assault that is as unprecedented as it is unwarranted. “The enemy of the people,” was what the president of the United States called the free press in 2017.

Mr. President, it is a testament to the condition of our democracy that our own president uses words infamously spoken by Josef Stalin to describe his enemies. It bears noting that so fraught with malice was the phrase “enemy of the people,” that even Nikita Khrushchev forbade its use, telling the Soviet Communist Party that the phrase had been introduced by Stalin for the purpose of “annihilating such individuals” who disagreed with the supreme leader.

This alone should be a source of great shame for us in this body, especially for those of us in the president’s party. For they are shameful, repulsive statements. And, of course, the president has it precisely backward – despotism is the enemy of the people. The free press is the despot’s enemy, which makes the free press the guardian of democracy. When a figure in power reflexively calls any press that doesn’t suit him “fake news,” it is that person who should be the figure of suspicion, not the press.

I dare say that anyone who has the privilege and awesome responsibility to serve in this chamber knows that these reflexive slurs of “fake news” are dubious, at best. Those of us who travel overseas, especially to war zones and other troubled areas around the globe, encounter members of U.S. based media who risk their lives, and sometimes lose their lives, reporting on the truth. To dismiss their work as fake news is an affront to their commitment and their sacrifice.

According to the International Federation of Journalists, 80 journalists were killed in 2017, and a new report from the Committee to Protect Journalists documents that the number of journalists imprisoned around the world has reached 262, which is a new record. This total includes 21 reporters who are being held on “false news” charges.

Mr. President, so powerful is the presidency that the damage done by the sustained attack on the truth will not be confined to the president’s time in office. Here in America, we do not pay obeisance to the powerful – in fact, we question the powerful most ardently – to do so is our birthright and a requirement of our citizenship — and so, we know well that no matter how powerful, no president will ever have dominion over objective reality.

No politician will ever get to tell us what the truth is and is not. And anyone who presumes to try to attack or manipulate the truth to his own purposes should be made to realize the mistake and be held to account. That is our job here. And that is just as Madison, Hamilton, and Jay would have it.

Of course, a major difference between politicians and the free press is that the press usually corrects itself when it gets something wrong. Politicians don’t.

No longer can we compound attacks on truth with our silent acquiescence. No longer can we turn a blind eye or a deaf ear to these assaults on our institutions. And Mr. President, an American president who cannot take criticism – who must constantly deflect and distort and distract – who must find someone else to blame — is charting a very dangerous path. And a Congress that fails to act as a check on the president adds to the danger.

Now, we are told via twitter that today the president intends to announce his choice for the “most corrupt and dishonest” media awards. It beggars belief that an American president would engage in such a spectacle. But here we are.

And so, 2018 must be the year in which the truth takes a stand against power that would weaken it. In this effort, the choice is quite simple. And in this effort, the truth needs as many allies as possible. Together, my colleagues, we are powerful. Together, we have it within us to turn back these attacks, right these wrongs, repair this damage, restore reverence for our institutions, and prevent further moral vandalism.Together, united in the purpose to do our jobs under the Constitution, without regard to party or party loyalty, let us resolve to be allies of the truth — and not partners in its destruction.

It is not my purpose here to inventory all of the official untruths of the past year. But a brief survey is in order. Some untruths are trivial – such as the bizarre contention regarding the crowd size at last year’s inaugural.

But many untruths are not at all trivial – such as the seminal untruth of the president’s political career – the oft-repeated conspiracy about the birthplace of President Obama. Also not trivial are the equally pernicious fantasies about rigged elections and massive voter fraud, which are as destructive as they are inaccurate – to the effort to undermine confidence in the federal courts, federal law enforcement, the intelligence community and the free press, to perhaps the most vexing untruth of all – the supposed “hoax” at the heart of special counsel Robert Mueller’s Russia investigation.

To be very clear, to call the Russia matter a “hoax” – as the president has many times – is a falsehood. We know that the attacks orchestrated by the Russian government during the election were real and constitute a grave threat to both American sovereignty and to our national security. It is in the interest of every American to get to the bottom of this matter, wherever the investigation leads.

Ignoring or denying the truth about hostile Russian intentions toward the United States leaves us vulnerable to further attacks. We are told by our intelligence agencies that those attacks are ongoing, yet it has recently been reported that there has not been a single cabinet-level meeting regarding Russian interference and how to defend America against these attacks. Not one. What might seem like a casual and routine untruth – so casual and routine that it has by now become the white noise of Washington – is in fact a serious lapse in the defense of our country.

Mr. President, let us be clear. The impulses underlying the dissemination of such untruths are not benign. They have the effect of eroding trust in our vital institutions and conditioning the public to no longer trust them. The destructive effect of this kind of behavior on our democracy cannot be overstated.

Mr. President, every word that a president utters projects American values around the world. The values of free expression and a reverence for the free press have been our global hallmark, for it is our ability to freely air the truth that keeps our government honest and keeps a people free. Between the mighty and the modest, truth is the great leveler. And so, respect for freedom of the press has always been one of our most important exports.

But a recent report published in our free press should raise an alarm. Reading from the story:

“In February…Syrian President Bashar Assad brushed off an Amnesty International report that some 13,000 people had been killed at one of his military prisons by saying, “You can forge anything these days, we are living in a fake news era.”

In the Philippines, President Rodrigo Duterte has complained of being “demonized” by “fake news.” Last month, the report continues, with our President, quote “laughing by his side” Duterte called reporters “spies.”

In July, Venezuelan President Nicolas Maduro complained to the Russian propaganda outlet, that the world media had “spread lots of false versions, lots of lies” about his country, adding, “This is what we call ‘fake news’ today, isn’t it?”

There are more:

“A state official in Myanmar recently said, “There is no such thing as Rohingya. It is fake news,” referring to the persecuted ethnic group.

Leaders in Singapore, a country known for restricting free speech, have promised “fake news” legislation in the new year.”

And on and on. This feedback loop is disgraceful, Mr. President. Not only has the past year seen an American president borrow despotic language to refer to the free press, but it seems he has in turn inspired dictators and authoritarians with his own language. This is reprehensible.

We are not in a “fake news” era, as Bashar Assad says. We are, rather, in an era in which the authoritarian impulse is reasserting itself, to challenge free people and free societies, everywhere.

In our own country, from the trivial to the truly dangerous, it is the range and regularity of the untruths we see that should be cause for profound alarm, and spur to action. Add to that the by-now predictable habit of calling true things false, and false things true, and we have a recipe for disaster. As George Orwell warned, “The further a society drifts from the truth, the more it will hate those who speak it.”

Any of us who have spent time in public life have endured news coverage we felt was jaded or unfair. But in our positions, to employ even idle threats to use laws or regulations to stifle criticism is corrosive to our democratic institutions. Simply put: it is the press’s obligation to uncover the truth about power. It is the people’s right to criticize their government. And it is our job to take it.

What is the goal of laying siege to the truth? President John F. Kennedy, in a stirring speech on the 20th anniversary of the Voice of America, was eloquent in answer to that question:

“We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.”

Mr. President, the question of why the truth is now under such assault may well be for historians to determine. But for those who cherish American constitutional democracy, what matters is the effect on America and her people and her standing in an increasingly unstable world — made all the more unstable by these very fabrications. What matters is the daily disassembling of our democratic institutions.

We are a mature democracy – it is well past time that we stop excusing or ignoring – or worse, endorsing — these attacks on the truth. For if we compromise the truth for the sake of our politics, we are lost.

I sincerely thank my colleagues for their indulgence today. I will close by borrowing the words of an early adherent to my faith that I find has special resonance at this moment. His name was John Jacques, and as a young missionary in England he contemplated the question: “What is truth?” His search was expressed in poetry and ultimately in a hymn that I grew up with, titled “Oh Say, What is Truth.” It ends as follows:

“Then say, what is truth? ‘Tis the last and the first,

For the limits of time it steps o’er.

Tho the heavens depart and the earth’s fountains burst.

Truth, the sum of existence, will weather the worst,

Eternal… unchanged… evermore.”

Thank you, Mr. President. I yield the floor.

WHITE HOUSE REPLY

→ Tessa Berenson, White House Responds to Jeff Flake’s Speech Criticizing Trump, Time, Jan. 17, 2018

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FAN 172.1 (First Amendment News) Spielberg’s “The Post” — More Fiction Than Fact

James Goodale

“The Post, which opens tonight, is a good movie but bad history. It exaggerates the role of The Washington Post in the success of the publication of the Pentagon Papers and the subsequent Supreme Court case. It downplays the role of the true catalyst in the real life drama: The New York Times. Kay Graham and Ben Bradlee, who were good friends of mine, must be rolling over in their graves laughing at the roles Hollywood has given them.”

Thus begins James Goodale’s op-ed in The Daily Beast. Recall, that Mr. Goodale was the former vice president and general counsel for The New York Times and, later, the Times’ vice chairman. It has been reported that Goodale was “the leading force behind the Times’ decision to publish the Pentagon Papers in 1971.” He is also the author of Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles (2013). In other words, he is someone quite familiar with the real story of the Pentagon Papers episode.

The Post, adds Goodale, “is about Katherine Graham’s decision to publish the Pentagon Papers. It creates a false impression that the Post was a major player in such publication. It’s as though Hollywood had made a movie about the Times’ triumphant role in Watergate. In fact, the Post had as much to do with the Pentagon Papers as the Times did with Watergate. But then again, we don’t look to Hollywood for history but entertainment, and The Post is good entertainment at the Academy Award level. . . .”

“While The Washington Post gets the lion’s share of the glory in the movie, it was the Times that did the vast majority of the hard work and took on far more risk in publishing the Pentagon Papers.”

Goodale closes his op-ed with this observation: “The Times eventually won the Pulitzer Prize. It did not share this prize with the Post any more than the Post shared its prize for its Watergate coverage with the Times. For Hollywood now to create the impression that The Washington Post was the key driver responsible for the publication of the Pentagon Papers or the case is—well, it’s Hollywood: good drama but bad history.”

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FAN 171.1 (First Amendment News) Met Refuses to Remove 1938 “Offensive” Painting — Free Speech Advocates Rally to Museum’s Defense

Throughout his career, Balthus rejected the usual conventions of the art world. . . Prime Ministers and rock stars alike attended the funeral of Balthus. Bono, lead-singer of U2, sang for the hundreds of mourners at the funeral, including the President of France . . . and others.  Elisa 47

Moral panics often inspire demands for censorship and this is no exception. The MET absolutely made the right decision.  Robert Corn-Revere

* * * * 

Thérèse Dreaming (Metropolitan Museum of Art)

Censorship is never a safe haven for art, be it paintings, photos, poems, films, or music. Could art, as we know it in our constitutional government, exist if it could not be offensive at times? After all, safe, sanitary, and uncontroversal art is never in need of First Amendment protection. The 1791 guaranty is there to protect art that sometimes offends, that sometimes angers, and that sometimes even trades in taboo. Or so goes the creed of the defenders of free expression who came to the defense of The Metropolitan Museum of Art’s refusal to remove a painting that some critics believe depicts “the sexualization of a child.” That painitng is Thérèse Dreaming, a 1938 work by Balthus.

Here is how the Met describes it: “With closed eyes, Balthus’s pubescent model is lost in thought. Thérèse Blanchard, who was about twelve or thirteen at the time this picture was made, and her brother Hubert were neighbors of Balthus in Paris. She appears alone, with her cat, or with her brother in a series of eleven paintings done between 1936 and 1939.”

Others see it differently.  As reported by Natalie O’Neill in a story in the New York Post: “‘The artist of this painting, Balthus, had a noted infatuation with pubescent girls and this painting is undeniably romanticizing the sexualization of a child,’ writes Mia Merrill, 30, a New York City entrepreneur who started the petition. ‘Given the current climate around sexual assault … The Met is romanticizing voyeurism and the objectification of children.'”

→ See petititon: “Metropolitan Museum of Art: Remove Balthus’ Suggestive Painting of a Pubescent Girl, Thérèse Dreaming” (10,995 supporters). Here are a few excerpts from that petition:

  • “When I went to the Metropolitan Museum of Art this past weekend, I was shocked to see a painting that depicts a young girl in a sexually suggestive pose. Balthus’ painting, Thérèse Dreaming, is an evocative portrait of a prepubescent girl relaxing on a chair with her legs up and underwear exposed.”

(From online petition)

  • It is disturbing that the Met would proudly display such an image. . .  The artist of this painting, Balthus, had a noted infatuation with pubescent girls, and it can be strongly argued that this painting romanticizes the sexualization of a child.”

Removal or Trigger Warning Urged

  • “I am not asking for this painting to be censored, destroyed or never seen again. I am asking The Met to seriously consider the implications of hanging particular pieces of art on their walls, and to be more conscientious in how they contextualize those pieces to the masses. This can be accomplished by either removing the piece from that particular gallery, or providing more context in the painting’s description. For example, a line as brief as, ‘some viewers find this piece offensive or disturbing, given Balthus’ artistic infatuation with young girls.‘”

Ms. Mia Merrill

 Mia Merrill Twitter message: “I put together a petition asking the Met to take down a piece of art that is undeniably romanticizing the sexualization of a child. If you are a part of the movement or ever think about the implications of art on life, please support this effort.”

Met Responds

As reported in the Post, Kenneth Weine, spokesman for the Met, stated:“[Our] mission is to collect, study, conserve, and present significant works of art across all times and cultures in order to connect people to creativity, knowledge, and ideas.  Moments such as this provide an opportunity for conversation, and visual art is one of the most significant means we have for reflecting on both the past and the present.”

Free-Speech Advocates Defend Met

  • “The National Coalition Against Censorship (NCAC) strongly supports The Metropolitan Museum of Art’s refusal to remove a painting that some critics believe depicts ‘the sexualization of a child.’ . . . The protesters’ claim that displaying the painting implies institutional approval of an unhealthy sexualization of young women . . . fundamentally misconstrues the role of cultural institutions, which is to facilitate a diverse public’s engagement with a rich array of cultures and objects by framing and contextualizing them. . . . NCAC applauds The Met’s refusal to bow to its critics. We will continue to support cultural institutions that allow members of the public to make up their own minds about what is ‘offensive.'”

“Great museums don’t need to be lectured about the supposedly baleful impact of their exhibitions; in each generation, they need to be protected from well-meaning but art-threatening ning censors who seek to substitute their notions of morality for artistic judgments about what to paint and what to display.” — Floyd Abrams, Senior Counsel, Cahill Gordon & Reindel

— “Especially in light of the Museum’s advance notice to potential viewers that “Some of the paintings in this exhibition may be disturbing to some visitors,” it would be inappropriate for the Museum to deprive all visitors of the opportunity to view the work and to discuss the issues it illuminates. This is particularly true during this “Me Too” moment, given the important public focus on pertinent issues, including Roy Moore’s sexual pursuit of young females.” — Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School

 “The Metropolitan Museum of Art has been forced to respond to would-be censors since the 1880s. The claim of harm to children was always the easiest to make. During the era in which Comstock Laws were enforced most broadly, reproductions of nudes exhibited at the Met were deemed obscene, burned and destroyed, while the originals were held to be art, and therefore not subject to suppression. Claims were made by Comstock and his employers about the ways in which the particular effects of originals ameliorated their ‘bad tendencies’ but in reality this responded to the political problems raised by questioning the morals of wealthy donors. Bravo, Met, once again.” — Amy Werbel, Associate Professor, Fashion Institute of Technology, State University of New York and author of Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (forthcoming 2018)

Woodhull Freedom Foundation does not support censorship in any form, especially when it comes to works of art that raise troubling themes. We do support high standards for interpretive materials and believe that at their best they should reflect the most current understanding or knowledge about an artist, issue, historical era, or work of art. While coverage of this petition has focused on the call to remove the work, we do note that the author of the petition offers a choice, where providing better interpretive material would facilitate the display of the work in question.”  — Elizabeth Wood, Senior Strategist, Woodhull Freedom Foundation

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FAN 169.1 (First Amendment News) FIRE calls on Brandeis President to reinvite playwright to present controversial Lenny Bruce Play

disclosure: I was one of the signatories to this letter to Brandeis University’s President. 

Press release from Foundation for Individual Rights in Education:

An open letter to Brandeis regarding the cancellation of Lenny Bruce-inspired play, ‘Buyer Beware’

Ronald D. Liebowitz                                                                                                           November 13, 2017
Office of the President, MS 100
Irving Enclave 113
Brandeis University
415 South Street
Waltham, MA 02453
781-736-3001

URGENT

Sent via U.S. Mail and Electronic Mail (president@brandeis.edu)

Dear President Liebowitz,

Ronald D. Liebowitz, President of Brandeis University

We are a group of free speech advocates with a resilient interest in comedian Lenny Bruce’s life and legacy. We write to you today because we are concerned by recent reports that a play scheduled to be staged this month at Brandeis University was postponed and subsequently abandoned, in part because it utilized material from the university’s Lenny Bruce archives — material that some within the university found “challenging.” We call upon Brandeis to reaffirm the principles of freedom of expression, inquiry, and debate upon which any institution of higher education must be based, and to commit itself to engaging with the challenging material in the play by staging it as intended — not censoring it.

It is our understanding that the play, “Buyer Beware,” written by celebrated playwright and Brandeis alumnus Michael Weller, uses excerpts and ideas from Lenny Bruce’s routines as catalysts for a fictional debate about free speech on Brandeis’ campus. Lenny Bruce’s comedy has long been both controversial and groundbreaking. During his lifetime, he was subjected to six obscenity trials, purportedly for words that today are regularly used in all forms of artistic expression. These prosecutions left Bruce bankrupt and unable to work before dying in 1966 at the age of 40. “We drove him into poverty and bankruptcy and then murdered him,” said Vincent Cuccia, one of Bruce’s New York prosecutors. “We all knew what we were doing. We used the law to kill him.”

[Ronald D. Liebowitz, Oct. 26, 2016: Lenny Bruce exerted an impact upon his contemporaries and successors like no one else in his field, and his influence on comedy and well beyond comedy continues today. . . .  It is quite appropriate that Brandeis, with our motto of truth even unto its innermost parts, is now home to the personal papers of an individual who deeply believed in that same ideal, even to the point of persecution. We are honored to have been chosen as the keepers of this historic collection . . . . ]

Americans have since recognized the injustices dealt to Bruce. He was the last comedian to be criminally prosecuted for obscenity in the United States. Today, Bruce is revered as a champion of free speech and First Amendment principles — so much so that he was posthumously pardoned by New York Governor George Pataki in 2003. His life story serves as a cautionary tale of what happens when we censor artistic expression.

Playwright Michael Weller

Given this history, the undersigned are sensitive to the possibility that Bruce’s words may again be censored. Our unease is amplified by the fact that such censorship may occur at Brandeis University, named after the staunch free speech advocate and United States Supreme Court Justice Louis Brandeis. Our concern is all the greater insofar as the university is the institutional custodian of the Lenny Bruce archives and much of Bruce’s legacy.

A 2004 box set of Bruce’s comedy was titled “Let the Buyer Beware.” Perhaps not coincidentally, “Buyer Beware” is also the title of Weller’s play. Surely when Brandeis accepted the responsibility of preserving Bruce’s archives within its library, it well understood the risks associated with doing so — caveat emptor — and tacitly, if not explicitly, agreed that it would spare Bruce the injustice of committing or enabling his posthumous censorship.

In a statement responding to the cancellation of the fall production of “Buyer Beware,” Brandeis announced that “faculty members considered the challenging issues [the play] raised” and decided that more time was needed to produce the play “appropriately.” The statement goes on to relinquish the university’s responsibility for the play’s subsequent cessation by foisting responsibility upon Weller, who did not approve of this more “appropriate” production, which subsequent reports indicate was not even presented to him. According to a statement from the Dramatists Guild of America and the Dramatists Legal Defense Fund, Weller “has heard only indirectly about the possibility of doing it at ‘a 60-seat black box theatre in Watertown that has some lights, and a budget for one or two professional actors.’”

Kitty Bruce (daughter of Lenny Bruce & signatory to letter)

Numerous reports indicate that the decision to forestall the planned production of “Buyer Beware” comes amid a concerted effort by some Brandeis students and alumni to cancel the play. The campaign was allegedly led by a Brandeis alumna, who reportedly admitted to having never read the play’s script, yet claimed that it “is an overtly racist play and will be harmful to the student population if staged.” Scholars of Bruce’s life know well that attempts at prior restraint are insidious and beget more censorship. Indeed, after Bruce was first prosecuted in one court, additional prosecutions soon followed. “Don’t lock up these 6,000 words,” Bruce pleaded to one New York City judge during a court hearing.

We write to ask for more details about Brandeis’ decision to cancel this month’s production of “Buyer Beware.” What material, exactly, did the university consider too “challenging” for its students and faculty? And why, when an agreement could not be reached with Weller to find a more “appropriate” setting for the play, did the university decide not to stage the production as intended, and instead defaulted to functionally censoring the “challenging” material instead of openly engaging with it?

comedian Penn Jillette (signatory to letter)

We call upon Brandeis University to answer these questions in a manner consistent with the principles of freedom of speech to which the university claims to commit itself, principles that are integral components of Lenny Bruce’s and Louis Brandeis’ legacies. If it cannot, we ask you to immediately reverse the decision to cancel this month’s production of “Buyer Beware” and to reinvite Weller to stage it as intended. The play itself presents a direct challenge to the university —  according to The Brandeis Hoot: “If Lenny Bruce came to life right now, for one day, and he was booked for a gig on campus. How would the administration react?”

Again, we urge the university to commit itself to reinviting Weller to stage “Buyer Beware” as intended, thereby defending the very free speech principles for which Lenny Bruce fought throughout his life.

lawyer Robert Corn-Revere (signatory to letter)

To you, President Liebowitz, we repeat the question and also ask: Did the Lenny Bruce archives end up in the “appropriate” place?

We look forward to hearing from you by Friday, November 17.

Sincerely,

Foundation for Individual Rights in Education

Kitty Bruce
Daughter of Lenny Bruce
Founder, The Lenny Bruce Memorial Foundation

Penn Jillette
Comedian and magician, Penn & Teller

Robert Corn-Revere
Partner, Davis Wright Tremaine LLP
Attorney responsible for successfully petitioning Governor George E. Pataki to grant the first posthumous pardon in New York history to Lenny Bruce in 2003

Ronald K.L. Collins
Harold S. Shefelman Scholar
University of Washington, School of Law
Co-author, The Trials of Lenny Bruce

David M. Skover
Fredric C. Tausend Professor of Constitutional Law
Seattle University School of Law
Co-Author, The Trials of Lenny Bruce

Noam Dworman
Owner, Comedy Cellar

Ted Balaker
Director, Can We Take a Joke?, a film about the life and legacy of Lenny Bruce

Courtney Balaker
Producer, Can We Take a Joke?

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FAN 165.2 (First Amendment News) Masses Publishing Co. v. Patten court documents now posted on First Amendment Library

Judge Learned Hand’s order granting the temporary injunction against the postmaster and ordering the magazine transmitted through the mails “without delay” was dated July 26, two days after the decision became known. During that brief period, the company pulled back the copies sent to the Post Office so the edition could be delivered by alternate means. On the same day the order was issued, U.S. Attorney Francis G. Caffey filed an Assignment of Error listing grounds on which he would rely in his appeal from Hand’s decree. In all, there were seven alleged errors, although essentially all of them went directly to the bottom line: Hand was wrong in finding for the magazine under every provision of the Espionage Act raised by government and wrong in granting the injunction.   — Eric Easton, Defending the Masses (Jan. 2018) 

* * * *

‘Tis the year of The Masses. This year marks the 100th anniversary of Judge Learned Hand’s seminal free-speech opinion in Masses Publishing Co. v. PattenAs previously reported here, two major events have been organized to celebrate the occasion.

New York Univeristy School of Law and the Sandra Day O’Connor College of Law at Arizona State University are hosting an all-day conference in New York on October 20th.

Gilbert E. Roe (lawyer for The Masses)

 Not long thereafter, on November 6th, the Second Circuit Court of Appeals, in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association, will host a “reargument” of the appeal in Masses Publishing Co. v. Patten. Floyd Abrams will appear on behalf of Postmaster Patten and Kathleen M. Sullivan will appear on behalf of Masses Publishing Co. The case will be argued before a panel of three judges:

  • Circuit Judge Reena Raggi,
  • Circuit Judge Pierre N. Leval, and
  • Circuit Judge Robert D. Sack

Original court documents posted for first time

In light of all of the above, the folks over at the First Amendment Library (led by Jackie Farmer) have uploaded 18 never before posted documents relating to the appeal in The Masses case. Among other things, this compilation includes the complaint, various affidavits filed in the case, transcript of the record, the order staying Judge Hand’s injunction, and much more.

Adriana Mark, head of research and education for the Second Circuit Library, unearthed these documents for the First Amendment Library. The librarians at the Gallagher Library of the University of Washington School of Law also provided additional research.

As the editor of the Library, I wrote the Introduction to the collection of The Masses documents.

Professor Eric Easton, author of Defending the Masses: A Progressive Lawyer’s Battles for Free Speech University of Wisconsin Press (Jan. 2018), kindly agreed to allow us to post a chapter from his forthcoming book, this to provide additional context for the documents posted.

            Judge Hand’s signature in Masses case

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FAN 165.1 (First Amendment News) New FIRE Report — Majority of college students self-censor & support disinvitations

This from a just-released report from the Foundation for Individual Rights in Education (FIRE):

PHILADELPHIA, Oct. 11, 2017 — A new report from the Foundation for Individual Rights in Education finds a majority of students on college campuses self-censor in class, support disinviting some guest speakers with whom they disagree, and don’t know that hate speech is protected by the First Amendment. The study also finds that Republican and Democratic students have different opinions on campus protests, disinvitations, and hate speech protections.
In the most comprehensive survey on students’ attitudes about free speech to date, FIRE measured student responses to questions about self expression, reactions to expression of other students, guest speakers, and hate speech. Some key findings include:
  • 46 percent of students recognize that hate speech is protected by the First Amendment, and 48 percent of students think the First Amendment should not protect hate speech.
  • Most students (56 percent) support disinviting some guest speakers. Democratic students are 19 percentage points more likely than their Republican peers to agree that there are times a speaker should be disinvited.
  • 58 percent of college students think it’s important to be part of a campus community where they are not exposed to intolerant or offensive ideas.
  • Very few students report that they would participate in actions that would prevent a guest speaker event from taking place (2 percent). Even fewer said they would use violence to disrupt an event (1 percent).
  • In open-ended questions, almost half of students (45 percent) identify speech with a racist component as hate speech, and 13 percent of students associate hate speech with violence.
  • In class, 30 percent of students have self-censored because they thought their words would be offensive to others. A majority of students (54 percent) report self-censoring in the classroom at some point since the beginning of college.

FIRE’s survey also found ideological differences in how students feel about free expression, both inside and outside the classroom. Very liberal students are 14 percentage points more likely than their very conservative peers to feel comfortable expressing their opinions in the classroom. Additionally, 60 percent of Republican students think they should not have to walk past a protest on campus, while only 28 percent of Democratic students think the same.

Robert Shibley

“There is clearly a partisan divide in how students perceive free speech on college campuses,” said FIRE Executive Director Robert Shibley. “This further solidifies the importance of FIRE’s mission. Free expression is too important to become a partisan issue in higher education.”

Additionally, FIRE’s survey found that a majority of students want their schools to invite a variety of guest speakers to campus (93 percent), and 64 percent report changing an attitude or opinion after listening to a guest speaker.

FIRE contracted with YouGov (California), a nonpartisan polling and research firm, to survey 1,250 American undergraduate students between May 25 and June 8. YouGov calculated weights for each response based on the respondent’s gender, race, and age. A copy of the full report, an FAQ, and the toplines and tabulations from YouGov can be accessed here.

The survey project was made possible by a grant from the John Templeton Foundation to conduct polling on campus attitudes, engage in legal and social science research, and mobilize a wider audience on and off campus in the fight for student and faculty rights.

ContactWilliam Rickards, Communications Coordinator, FIRE
215-717-3473; media@thefire.org
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FAN 163 (First Amendment News) Sanford Ungar Heads New Free Speech Project at Georgetown University

At the heart of this project is how universities and American society at large can uphold the First Amendment while also protecting people from harassment and threats of violence. We will study the condition of free speech in America today, both in higher education and in civil society, in an attempt to create frameworks that promote public discussion about divisive issues in a civil manner. — Sanford J. Ungar

Some know him as the president emeritus of Goucher College. Others know him as a vetran journalist with UPI, or as a former Washington editor of The Atlantic, or as a past director of the Voice of America.  Still others know him as the former dean of the School of Communication at American University. And yet others know him as the author of The Papers & The Papers: An Account of the Legal and Political Battle over the Pentagon Papers (1973). Now Sandy Ungar has a new job title: director of The Free Speech Project (Georgetown University), with funding from the Knight Foundation.

Sanford Ungar (credit: Lumina Foundation)

Here is the focus of The Project: “Pitched battles in the streets of Berkeley, California, as rival factions fight over who should be allowed to speak at one of America’s great public universities.  A faculty member seriously injured on the idyllic campus of Middlebury College in Vermont as violence erupts at a talk by a controversial visitor that she attempted to moderate.  Bedlam on the floor of the Texas House of Representatives with pistol-packing legislators threatening to kill each other.  A Princeton professor receives death threats and goes into hiding after cellphone videos of a commencement speech she gave in New England, in which she criticized President Trump, go viral. A massive replica of the Ten Commandments erected near the Arkansas State Capitol, but bulldozed into smithereens hours later by an angry citizen. A neighborhood pizza parlor in the nation’s capital hurled into the spotlight after a “fake news” conspiracy report inspires a North Carolina man to open fire in the restaurant. One of America’s great newspapers, the Los Angeles Times, reduced to recruiting subscribers by promising ‘We publish what’s REAL.'”

“What is happening to Free Speech in America?  The Free Speech Project at Georgetown University, launched with the support of the John S. and James L. Knight Foundation, aspires to find out and to analyze the condition of First Amendment values.”

Here is how The Project is described: “The project’s Free Speech Tracker, perhaps the first of its kind, documents incidents across the country over the past two years and going forward, as well as monitoring activity in state legislatures seeking to curb or calm public protest.”

“‘Our theory,’ says Ungar, a distinguished scholar-in-residence at Georgetown since 2014, ‘is that these incidents and various legislative initiatives are all related.'”

“‘When you have stark and deadly confrontations in Charlottesville and brawls and death threats on the floor of the Texas legislature, you cannot expect college and university campuses to be islands of civility and peaceful debate,’ he adds. ‘We have to understand and deal with the fact that some young people may try to shut down speech they find offensive because they are worried that they won’t have their own opportunity to speak up and be heard.'”

“‘Our nation was founded on the principles of free debate and dissent as enshrined in the First Amendment,’ said Jennifer Preston, Knight Foundation vice president for journalism. ‘At various times in history these rights have been challenged and are now being tested in an America where trust in institutions, in news and in each other grows more tenuous. To preserve the First Amendment, we must examine and better understand the forces that might jeopardize its future.’

“Ungar says the independent and nonpartisan Free Speech Project will address such concerns by looking more deeply into volatile incidents and emerging legislation around the country.”

Website, video & archives 

“The website eventually will include videos of one-on-one interviews by Ungar with key thinkers in the free speech debate, and currently contains an archive of commentary and analysis from newspapers and other sources concerning freedom of speech and other First Amendment rights.”

“The archive covers five areas – legal jurisprudence, campus incidents, legislative developments, freedom of the press and government secrecy, and civil society.”

“‘Free Speech is debated and analyzed at a dizzying pace by leading thinkers and journalists around the country and throughout the world,’ Ungar says. ‘We can’t compile every article related to free speech, but we do hope to offer commentary across the political spectrum to show the wide-ranging perspectives and viewpoints on this issue.'”

Project to host programs

“Operating out of Georgetown but independent of the university, the project will also sponsor public programs – on campus in its first year and later in other venues – where various constituencies can contribute ideas about how to reestablish national respect for fundamental First Amendment values while also promoting civility and inclusiveness.”

“‘We need to focus on how better to preserve and protect free speech, but also get buy-in from all the people and groups that believe in free expression and are in a position to promote it,’ Ungar explains. ‘This is fundamental to the survival of American democracy, especially in these turbulent times.'”

Sanford J. Ungar, Bannon called the media the ‘opposition.’ He’s right, and it’s a good thing, Washington Post, Feb. 7, 2017

Just In: ** David Shortell, Sessions to wade into divisive campus free speech debate, CNN, Sept. 26, 2017 **

Coming: Major Conference on Masses Publishing Co. v. Patten

Title of Event: A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Co-hosted by:

  • New York University School of Law
  • Sandra Day O’Connor College of Law, Arizona State University.

Date, Time & Location: The symposium will be held at New York University School of Law on Friday, October 20, from 9:00 a.m. to 5:00 p.m. in Greenberg Lounge.  A reception will follow.

Program:

Historical and Cultural Background

  • Amy Adler, Emily Kempin Professor of Law, New York University School of Law
  • Geoffrey Stone, Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
  • David Rabban, Dahr Jamail, Randall Hage Jamail and Robert Lee Jamail Regents Chair and University Distinguished Teaching Professor, University of Texas School of Law

The Masses Case: Dramatis Personae and Decision

  • Edward A. Purcell, Jr., Joseph Solomon Distinguished Professor of Law, New York Law School
  • Eric Easton, Professor of Law, University of Baltimore School of Law
  • Vincent Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School

 Aftermath of the Masses Decision

  • Thomas Healy, Professor of Law, Seton Hall Law School
  • Mark Graber, University System of Maryland Regents Professor, University of Maryland Francis King Carey School of Law
  • Paul Bender, Professor of Law, Sandra Day O’Connor College of Law, Arizona State University (via videoconference)

The Influence of Masses on Modern First Amendment Doctrine

  • Burt Neuborne, Norman Dorsen Professor of Civil Liberties, New York University School of Law
  • James Weinstein, Dan Cracchiolo Chair in Constitutional Law, Sandra Day O’Connor College of Law, Arizona State University
  • Martha Field, Langdell Professor of Law, Harvard Law School

Replay: Podcast — Judge Richard Posner on the First Amendment

  • On the retirment of Judge Richard Posner, Nico Perrino over at FIRE’s So to Speak replayed a First Amendment Salon interview Professor Geoffrey Stone did with Judge Posner back in May of 2016.

→ See also: Nico Perrino, The British free speech invasion, So to Speak, Sept. 21, 2017

Video: Cato Constitution Day Panel: “First Amendment Challenges” Read More