“[U]ntil a more ‘technical solution’ is in place, anyone who sees ‘any piece of Opinion journalism — including headlines or social posts or photos or you name it — that gives you the slightest pause, please call or text me immediately.’” — Katie Kingsbury (acting editorial page editor, The New York Times)
The New York Times’ publication of an op-ed by Senator Tom Cotton (R-Ark.) ignited a firestorm of controversy over freedom of expression and the responsibilities of a free press. Though the matter is not, of course, a First Amendment issue, it is, nonetheless, one that implicates free expression values in a free society. In light of that, I invited a noted professor of journalism, someone with a background in media law and practices, to comment on the Cotton controversy.
Joseph Russomanno is a professor at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University. His teaching and research have largely focused on First Amendment law and theory. He has published four books and numerous in-depth research articles on mass media and the First Amendment.
Professor Russomanno’s op-ed, written specifically for First Amendment News, appears below.
The controversy over the New York Times publishing an op-ed by an ardent supporter of President Trump reveals a misunderstanding of one of the most famous refrains in First Amendment history.
“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.” With those words, borrowing from Enlightenment philosophy, Justice Oliver Wendell Holmes, Jr. unleashed a powerful force into American jurisprudence. He also created a cultural concept used by some to defend an “anything goes” morality when it comes to speech.
The 21st century exemplars of this approach are social media companies, perhaps most notably Facebook. Its CEO, Mark Zuckerberg, continually rationalizes his hands-off, laissez-faire oversight of his empire by citing the marketplace of ideas.
‘Everything That’s Fit To Print’
Now along comes The New York Times. “Everything That’s Fit To Print,” it has claimed for more than a century. This apparently includes a recent op-ed piece by Senator Tom Cotton (R-Ark.), an obedient supporter of Donald Trump. Expressing a preference for martial law over the rule of law. The title of the Cotton op-ed said it all: “Send In the Troops.” He claimed that public response to George Floyd’s murder plunged American cities into “anarchy” that demands “an overwhelming show of force … with federal authority.”
Swift criticism followed, not just for its content, but because the op-ed was published at all. More than 800 Times staff members signed a protest letter. One if its op-ed columnists, Michelle Goldberg, described Cotton’s essay as a fascist screed, noting profoundly that to engage with ideas of this sort “creates a crisis for traditional understandings of how the so-called marketplace of ideas functions.” In light of this incident, let’s re-examine the marketplace metaphor.
Re-examining the marketplace metaphor
Predictably echoing the likes of Zuckerberg, Times opinion page editor James Bennett defended his decision to publish the Cotton piece by pulling a page directly from the marketplace of ideas playbook: “I believe in the principle of openness to a range of opinions, even those we may disagree with, and this piece was published in that spirit.” Bennet resigned a few days later.
While sharing a diversity of ideas is admirable, not every platform needs to be all things to all people. Not everything can — or should — be included. Instead, these platforms generally filter what they accept. This is what distinguishes journalism from mere information — editors who assume gatekeeping roles, deciding what is worthy of inhabiting their marketplace of ideas and what isn’t.
The right of these private organizations to make such content decisions free of government interference is on solid legal ground (the unanimous Supreme Court opinion in Miami Herald v. Tornillo). Of course, the Times has that same right. The issue, however, encompasses not merely legal norms, but cultural norms as well. It is not unreasonable to expect the “Gray Lady” to safeguard the welfare of its audiences. That’s in part why so many inside the paper are displeased, resulting in an internal civil war, according to editor Bari Weiss. The result, as reported in the Washington Post: “the paper late Thursday abruptly announced that Cotton’s op-ed was the result of a ‘rushed editorial process’ and ‘did not meet our standards.’”
The norm: rejecting content
Publications and platforms reject content regularly. Ideally, the process is fair, methodical and improves the product. Even so, rarely are there regrets about any damage done to the marketplace of ideas. To publish every submission, on the other hand, would serve to diminish the value of every article, and of the publication overall.
Now, however, too many platforms lack the courage to regularly filter content, and instead serve as informational dumping grounds. Twitter, though, recently awoke from its Trump-induced hibernation to flag some of the President’s tweets. YouTube pulled a video of doctors denouncing mainstream medicine’s approach to COVID, determining that it created potential harm. But the Times’s Bennet wouldn’t do the same, though he later admitted he never read Cotton’s piece before deciding to publish it. The Times now says the essay fell short of the newspaper’s standards and is reviewing the situation. This suggests that the essay should have been evaluated no differently than any other prospective publication, and not merely to expand the Times’s marketplace of ideas.
The mistake the Times made with the Cotton piece — thinking it needs to serve everyone by being the ultimate marketplace of ideas, straying from its own fit-to-print mantra.
Therein lies the key — in not recognizing that there are many marketplaces of ideas. Not one of them needs to serve as the marketplace for global humanity, or even for one nation. Instead, it’s time for every platform to recognize that its universe, and maybe even its profits, are finite — yes, even you, Mr. Z.
So if there is a flaw in Holmes invoking the marketplace of ideas — or, perhaps more importantly, in our understanding of it — it is simply this: there isn’t a single marketplace. We need to “shop” for our ideas by visiting several markets. That contemporary lesson, of course, is not merely for us mortal citizens, but also for those who own and operate our various information platforms — our marketplaces of ideas.
Not all information should be treated equally. Screen your content, and, yes, use your judgment to eliminate some. In the football vernacular of the great philosopher, Bill Belichick, “Do your job!”
- David Bernstein, “Is the Future of Freedom of Speech in Jeopardy?,” The Volokh Conspiracy (June 8) (“Constitutional protection of freedom of speech depends on cultural foundations that are being eroded, left and right.”)
- “Mark Zuckerberg, Doesn’t Care About the First Amendment,” New York Magazine (June 5)
Question: What if a mayor in South Carolina ordered a street painted with “Make America Great Again?”
Mauro on pending SCOTUS case
Over at the Freedom Forum, Tony Mauro recently filed this story:
The Supreme Court may soon add another key First Amendment case to its docket — this time touching on the amendment’s lesser-known rights of assembly and petition [Mckesson v. Doe].
First Amendment scholars and advocates have filed friend-of-the-court briefs supporting a petition in Mckesson v. Doe, urging the court to uphold its tradition of protecting the rights of protesters. [see here, here and here re other amicus briefs]
In the case pending before the court, an unidentified person threw a rock and injured an unnamed Baton Rouge, La., police officer during a Black Lives Matter protest in 2016. The officer, referred to as “John Doe,” sued DeRay Mckesson, who was a leader of the protest but not the person who injured the officer.
The concern expressed by First Amendment advocates is that if the leader of a protest group can be held liable for the wrongdoing of an unknown participant, valued forms of expression, assembly and petition will be chilled or silenced.
“The Mckesson case addresses the issue of whether the organizer of a lawful protest can be held personally liable for misconduct of one of the protestors,” said Floyd Abrams, senior counsel at Cahill Gordon & Reindel. “If that were the case, the right to protest could far too easily and routinely be stifled.”
Niehoff op-ed: “Stop blaming ‘the media’ for everything”
When protests erupted this past weekend over the tragic murder of George Floyd, disruption and violence swiftly followed. In cities across the country, peaceful demonstrations devolved into riots. In all of these places, reporters and photographers put themselves in harm’s way so that we might know the truth. They are the First Amendment’s first responders.
These days, it has become commonplace to make scapegoats of “the media.” We blame the media for everything: our divided country, our failed policies, our anxieties, and so on. It has become a national pastime and a drumbeat of political rhetoric. And it’s dumb and dangerous.
The protests put this sensibility in stark display. Video and photographs from across the country showed journalists and photographers being harassed, arrested, assaulted, gassed and shot at by members of law enforcement. All while doing their jobs — a job that the Constitution enshrines.
Of course, in many instances police and journalists were able to work productively, cooperatively and respectfully with each other. And doubtless some of the things that went wrong resulted from honest mistakes or misjudgments.
But the images of abuses are unforgettable. Police handcuffing an entire broadcast news crew. Officers taking aim at reporters and photographers, shooting them with pellets, and drenching them in pepper spray. A bloodied journalist lying on the ground receiving medical treatment. A freelance photographer in a hospital bed, blind in one eye from her injuries.
- Leonard Pitts, Jr., “Roughed up journalists and a threat to the First Amendment,” Baltimore Sun (June 8)
The Information Society Project & Abrams Institute condemn police violations of protesters’ and journalists’ First Amendment rights
The statement from the Information Society Project & Abrams Institute was published in Balkinization:
Call for Constitutional Protections for Protesters and the Press
The recent violence perpetrated against protesters seeking racial justice and against reporters covering these democratic protests is antithetical to the Constitution’s guarantees of free press, speech, petition, and assembly.
Protesters have taken to the streets out of frustration with years of racist law enforcement practices. In response, the Trump Administration and state and local governments across the country have repeatedly trampled on the First Amendment rights of both protesters and members of the press. Instead of seeking to de-escalate tensions, the President has urged governors to deploy the National Guard to “dominate” the protesters, and threatened to send troops into American cities.
Police departments in many different parts of the country have countered peaceful protests with excessive violence, ranging from tear gas to war-like helicopter stunts, from steering SUVs into protesters to ramming and beating protesters with batons. The Trump Administration has approved and encouraged this despicable use of force; it relied on similar methods to attack peaceful protesters in order to orchestrate a photo op in front of St. John’s Episcopal Church in Washington, D.C.
Evidence shows that law enforcement agencies are specifically targeting journalists for violence and arrest. Incidents of police attacks on reporters covering the protests mount each day, including the arrest of CNN correspondent Omar Jimenez and his team live on air in Minneapolis, and the police shooting of Kaitlin Rust, a WAVE 3 News reporter in Louisville, KY, with rubber bullets. Meanwhile, the President of the United States has declared the press the enemy of the people, and encouraged harassment and even violence toward the press. He has engaged in a pattern of gaslighting, lies and propaganda more appropriate to an authoritarian state than to a republic of free people.
Protesters rely heavily on technology and social media platforms to organize peaceful demonstrations and avoid harm. In addition to the constitutional obligations of government, therefore, privately-owned social media platforms must also live up to their civic responsibilities as powerful mediums of communication in a democratic society. Social media platforms should reform their current business practices, including their use of algorithms, their methods of targeted advertising, and their moderation systems. All too often these practices reward extremism, conspiracy theories, and racial division. All too often they amplify incitement to violence and exacerbate polarization. And all too often they allow prominent and powerful people, simply because they are prominent and powerful, to bully others, act with impunity, and become a law unto themselves. Finally, social media companies have a duty to protect the privacy rights of protesters and not allow themselves to be used by law enforcement to track and harass people who are lawfully exercising their constitutional rights of speech, petition, and assembly.
These protests take place during a COVID-19 pandemic that has hit communities of color the hardest. In the emerging economic disaster, people of color were among the first to lose their income and the last to receive aid. Following the killing of an African American man, George Floyd, by officers of the Minneapolis Police Department, many Americans — of all races — had had enough. These inequalities evidence deep structural problems in American society and deep pathologies in our system of law enforcement.
Our American system of government protects the right of the public to call attention to such injustices and demand public accountability. And it protects the right of the press to cover these demonstrations, as well as the government’s responses to them. The Constitution includes the rights of speech, assembly, and petition because public participation is the first step in curing whatever ails American democracy. It protects freedom of the press because without a free press, citizens cannot fairly assess the country’s problems and government officials would escape accountability for their actions.
By suppressing peaceful protest and attacking members of the press, the President, government officials, and law enforcement agencies subvert the First Amendment and undermine our democratic system of government.
To guarantee our constitutional rights, governments must take the following actions:
- Halt all police violence directed toward peaceful protesters, and respect the rights of petition and assembly.
- Halt all attacks on members of the press and any actions that unconstitutionally burden journalists’ ability to report on the protests.
- End the militarization of the police, because these shows of force threaten to further chill the exercise of free speech and assembly.
- Disclose law enforcement agencies’ policies for policing protests, as well as their policies for collecting and using data about protesters.
As academic institutions situated within an American law school, the Information Society Project and the Abrams Institute reaffirm our responsibility to defend First Amendment rights and advance justice and equality for all.
- Leonard Pitts, Jr., “Roughed up journalists and a threat to the First Amendment,” Baltimore Sun (June 8)
- “Black Lives Matter Sues Trump and Barr Over Use of Force in a D.C. Protest,” First Amendment Watch (June 8) (Complaint here)
- Aubree Eliza Weaver, “Homeland Security official says force was needed to reduce trouble at protests”, Politico (June 7)
- Desmond Nugent, “Legal observers attend Little Rock protests, monitor first amendment rights,” ABC 7 (June 6)
- “ACLU: Greensboro curfew violates First Amendment and invites racial discrimination”, City Beat (June 5)
- “Pennsylvania Commissions Jointly Issue Statement Defending our First Amendment Right to Protest and Air Grievances,” Governor’s Office (June 4)
- “First Amendment expert breaks down the difference between peaceful and lawful protesting,” Fox 5 (June 6)
- “ACLU Sues Minneapolis Police for Deliberate “Indifference” to Press Freedom,” First Amendment Watch (June 3)
- Editorial, “In America, Protest Is Patriotic,” New York Times (June 2)
Colorado high court announces ‘true threats’ criteria
In deciding the matter the court refined its earlier formula for distinguishing a true threat from constitutionally protected speech. In doing so, it offered specific guidance for applying that test to statements communicated online.
In her opinion for a unanimous court, Justice Monica M. Márquez declared that under the First and Fourteenth Amendments:
a true threat is a statement that, considered in context and under the totality of the circumstances, an intended or foreseeable recipient would reasonably perceive as a serious expression of intent to commit an act of unlawful violence. In determining whether a statement is a true threat, a reviewing court must examine the words used, but it must also consider the context in which the statement was made. Particularly where the alleged threat is communicated online, the contextual factors courts should consider include, but are not limited to
(1) the statement’s role in a broader exchange, if any, including surrounding events;
(2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features;
(3) the manner in which the statement was conveyed (e.g., anonymously or not, privately or publicly);
(4) the relationship between the speaker and recipient(s); and
(5) the subjective reaction of the statement’s intended or foreseeable recipient(s).
The matter was remanded “to the juvenile court to reconsider the adjudication applying this refined test.”
→ See David L. Hudson, Jr., “Colo. high court announces new factors for determining whether social media speech is a threat,” The Free Speech Center (June 5)
EFF: ‘You Have a First Amendment Right to Record the Police’
- Some advice from Sophia Cope & Adam Schwartz over at the Electric Frontier Foundation.
New book: the First Amendment & African Americans
- Timothy Shiell, “African Americans and the First Amendment: The Case for Liberty and Equality” (SUNY Press, 2019)
“African Americans and the First Amendment” is the first book to explore in detail the relationship between African Americans and our “first freedoms,” especially freedom of speech. Timothy C. Shiell utilizes an interdisciplinary approach to demonstrate that a strong commitment to civil liberty and to racial equality are mutually supportive, as they share an opposition to orthodoxy and a commitment to greater inclusion and participation. This crucial connection is evidenced throughout US history, from the days of colonial and antebellum slavery to Jim Crow: in the landmark US Supreme Court decision in 1937 freeing the black communist Angelo Herndon; in the struggles and victories of the civil rights movement, from the late 1930s to the late ’60s; and in the historical and modern debates over hate speech restrictions.
Liberty and equality can conflict in individual cases, Shiell argues, but there is no fundamental conflict between them. Robust First Amendment values protect and encourage demands for racial equality while weak First Amendment values, in contrast, lead to censorship and a chilling of demands for racial equality.
Forthcoming book on free speech & corporate surveillance
- Jillian York, “Silicon Values: The Future of Free Speech Under Surveillance Capitalism” (Verso, March 2, 2021)
What is the impact of surveillance capitalism on our right to free speech? The Internet once promised to be a place of extraordinary freedom beyond the control of money or politics, but today corporations and platforms exercise more control over our ability to access information and share knowledge to a greater extent than any state. From the online calls to arms in the thick of the Arab Spring to the contemporary front line of misinformation, Jillian York charts the war over our digital rights. She looks at both how the big corporations have become unaccountable censors, and the devastating impact it has had on those who have been censored.
In “Silicon Values,” leading campaigner Jillian York, looks at how our rights have become increasingly undermined by the major corporations desire to harvest our personal data and turn it into profit. She also looks at how governments have used the same technology to monitor citizens and threatened our ability to communicate. As a result our daily lives, and private thoughts, are being policed in an unprecedented manner. Who decides the difference between political debate and hate speech? How does this impact on our identity, our ability to create communities and to protest? Who regulates the censors? In response to this threat to our democracy, York proposes a user-powered movement against the platforms that demands change and a new form of ownership over our own data.
New scholarly article on the right not to speak
- Note, “Two Models of the Right to Not Speak,” Harvard Law Review (2020)
So to Speak podcast interview with Rod Smolla
- Episode 113: “Charlottesville reflections with Rodney Smolla” (discussing his new book, “Confessions of a Free Speech Lawyer”)
- David L. Hudson, Jr., “Wash. state judge tosses ill-conceived lawsuit vs. Fox News,” The Free Speech Center (June 8)
- Leonard Pitts Jr., “A monstrous breach of the First Amendment,” Seattle Times (June 7)
- Elizabeth MeLampy, “Judges Strike Down ‘Ag-Gag’ Laws for Violating the First Amendment,” Truthout (June 6)
- “Tech Group Sues Over Trump’s Executive Order that Targets Social Media Platforms,” First Amendment Watch (June 3)
2019–2020 SCOTUS term: free expression & related cases
Opinions or judgments handed down
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- United States v. Sineneng-Smith (decided on non-First Amendment grounds)
- United States v. Sineneng-Smith (argued Feb. 25) [soliciting unlawful action/overbreadth]
- Carney v. Adams (TBD) [standing / judicial elections]
- United States Agency for International Development v. Alliance for Open Society International Inc. (May 5) [federal funding/compelled speech]
- Barr v. American Association of Political Consultants, Inc. (May 6) [automated-call restriction]
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (May 13) [elections]
- Fulton v. City of Philadelphia (TBD) [religious expression: free exercise & free speech claims]
- Hunt v. Board of Regents of the University of New Mexico
- Bright v. Thomas
- Kansas v. Boettger
- Living Essentials, LLC v. Washington
- Evans v. Sandy City, Utah
- Bruni v. City of Pittsburgh
- Waggy v. United States
- Austin v. Illinois
- Mckesson v. Doe
- Reisman v. Associated Faculties of the University of Maine
- Institute for Free Speech v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- Price v. City of Chicago, Illinois
- Charter Communications, Inc. v. Gallion
- Jarchow v. State Bar of Wisconsin
- National Association for Gun Rights, Inc. v. Mangan
- Schmitt v. LaRose
- Vugo Inc. v. City of New York, New York
- Waronker v. Hempstead Union School District
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- Elster v. City of Seattle
- Doe 1 v. Federal Election Commission
- Fleck v. Wetch
- New York Republican State Committee v. Securities and Exchange Commission
- EMW Women’s Surgical Center v. Meier
- Carter v. Massachusetts
- Capital Associated Industries Inc. v. Stein
- National Review, Inc. v. Mann (Alito, J., dissenting from denial of cert.)
- Competitive Enterprise Institute v. Mann (Alito, J., dissenting from denial of cert.)
- Libertarian National Committee Inc. v. Federal Election Commission
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC
- Gatehouse Media New York Holdings Inc. v. New York
- National Association of Broadcasters v. Prometheus Radio Project (re Section 202(h) of the Telecommunications Act of 1996)
- Federal Communications Commission v. Prometheus Radio Project (re FCC cross-ownership restrictions)
- Uzuegbunam & Bradford v. Preczewski, et al (nominal damages and mootness in campus speech context)
First Amendment related: cert. denied
- Force v. Facebook Inc. (interpretation of Section 230(c)(1))
- Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
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