A common environment where the First Amendment does not always flourish is in the work setting. One may ask, “Then in what circumstances does the First Amendment protect employees in the workplace?” Right off the bat one should note that there’s a difference between private and public employees. While public workers retain their First Amendment rights, companies can censor the speech of private workers. [1] So we’re already narrowing the pool to specifically public workers. With that being said, there is no guaranteed protection for these public employees. If there’s no guarantee of free speech then that completely defeats the purpose of setting aside First Amendment rights for public employees in the first place. Here’s the catch. Public employees must undergo a series of tests to see whether their First Amendment rights are appropriately protected. Basically, government employers must protect workers’ First Amendment rights. The employers cannot violate workers’ rights if: [2]
1. the employee is on government payroll
2. the employee was punished severely for his or her speech
3. the expression for which the employee was punished relates to a matter of public concern
4. the expression on a matter of public concern was a “but for” cause of the punishment—but for that expression the employee would not have been punished. So the government cannot add additional reasons for punishing the employee outside of the public concern domain
5. the employee’s speech does relate to a matter of public concern the employee is allowed to make important policy decisions or is in the position to override the policy directives of superiors [2]
The most common test that employees fail to pass is whether or not their speech constitutes a “matter of public concern.” This was the case in Mississippi where an employee was denied her First Amendment rights because her speech didn’t fulfill the “public concern” criterion. Former nurse Tonya Freeman starred in a film called “Tragic Flaw.” She was an employee at Magnolia Hospital during the time of the filming. In one of the scenes, Freeman’s coffee cup bearing the words “Magnolia Hospital” appeared as clear as day. [3] When Freeman took her nursing manager to see the previews of this movie, the nursing manager became very upset that the coffee mug displaying “Magnolia Hospital” was shot in the film. The overall storyline portrayed in the nonfictional film were about two lesbians attempting to hire a hit man to kill an abusive doctor who married one of the female characters in the film. [3] The inevitable themes of sexuality and violence make this film an unequivocal public detriment, not a public concern. The nursing manager worried that people may think Magnolia Hospital endorsed the movie’s egregious content. Some of the scenes depicted in the film relate to sadomasochism, or sexual gratification gained through inflicting or receiving pain. Moreover, the hospital’s chief executive officer fired Freeman for her overstepping the boundary in her exercise of free speech in this film. Freeman goes on to sue Magnolia Hospital for violating her First Amendment rights and due-process rights. [3]
Let’s examine the actual content of the “speech.” The coffee mug itself is not conveying speech that is worthy of public concern. At the same time, the mug itself isn’t detrimental to the public concern. The problem lies with the potentially detrimental message that the Magnolia Hospital is conveying through its affiliation with the film. However, Freeman’s speech was more symbolic than anything related to verbal communication, and the interpretation of the image can only go so far. The fact that the image of Freeman’s coffee mug alone became the center of contention leaves room for a lot of vague assumptions. After all, the nursing manager made the presumptuous statement that showing a scene with a coffee mug bearing “Magnolia Hospital” in a violent and sexual film would give the hospital a tainted image. She assumes the hospital may lose its authority as a credible place for people seek medical attention. People may draw the assumption that Freeman purposely used the mug for the shot to view the hospital she works for in a negative light, but that interpretation of what Freeman’s intentions were stretches beyond what was actually visible in the film. The mug alone tells no member in the audience that the speaker’s intent was to display Magnolia Hospital negatively or to convey the message that the Hospital supports illegal activities, sexual conduct, and violence. This leaves too vague an assumption and creates wide open space for speakers to feel inhibited and restricted in their speech because they are uncertain which speech is protected if something as minute as a coffee mug is easily denied protection under the First Amendment. Speakers may feel that they cannot speak without fear of retaliation or job termination. [4] These are huge issues that impede the speakers. Remember that the burden of the speech should always be on the governmental end of the spectrum.
Juxtapose another case that deals with employees’ First Amendment rights, and we see that the Supreme Court is recalcitrant when it comes to standing its ground on condoning free speech that does not serve the public concern. The Connick v. Myers case in 1980 dealt with a public employee Sheila Myers who was fired for circulating a 14-point questionnaire in which she asked about transferring and whether or not other workers were discontent with the office structure. [5] It turns out that Myers had been upset by the way an assistant district attorney Dennis Waldron proposed that she transfer to a different section of the criminal court, and she clearly objected to that request. When district attorney Henry Connick fired Myers for being disobedient to orders and creating a “mini insurrection” in the work environment, she sued and took her case to court. Connick may believe that Myers circulated the questionnaire to express internal and personal grievances about her transfer, just as the nursing manager in Freeman’s case may believe the coffee mug was meant to express personal matters. However, we don’t know for certain whether the content of Myers’ questionnaire had legitimate matters of public concern. Likewise, we don’t know Freeman’s intention for displaying her Magnolia Hospital coffee mug. The reasons may be completely legitimate, but in neither case were the litigants able to convince the Court that their speech was worth expressing.
In Freeman’s situation, the court ruled in favor of the defendant because the plaintiff Freeman did not engage in speech meant to highlight domestic violence as a matter of public concern. [3] As long as the speech does not address a matter of public concern, the speech is not guaranteed protection under the First Amendment. There’s no doubt that, as a public employee, Freeman fails to pass the test of “public concern.” Because of the very nature of the film her speech was bound to be unprotected. Keep in mind that a matter of public concern is one that is related to “any matter of political, social, or other concern to the community.” [6] None of these criteria are met in Freeman’s speech. Even if Freeman believed her speech did deal with a matter of public concern, there’s one more question that she must ask herself. That is, does her right to free speech outweigh her employer’s business reasons for restricting the speech? [6] As mentioned earlier, the company has a legitimate reason to believe that it should omit the Magnolia Hospital mug from the film to clear up any confusion that may arise among people who trust the hospital’s services. To protect its reputation and authority as a reliable place to seek service and medical attention, the hospital had to restrict Freeman’s speech. Likewise, Myers’ case does not adequately demonstrate public concern. As mentioned in the court case, while both Myers and Connick acknowledge that “speech about employees being pressured to work in political campaigns addresses a matter of public concern,” Connick and the majority of the Supreme Court believe no such pressure was exerted in the district attorney’s office. [5]
Judge Davidson noted in Freeman’s case that “even if the movie was one of public concern, the mug was not necessary to further that message.” [3] Just because the speech doesn’t further a message of public concern does not mean that the speech should be inhibited. There’s no harm done in showing the image of a coffee mug in a film that isn’t related to Magnolia at all. Overall, the support provided by the Court in this case was a bit weak. The employee didn’t even display her freedom of expression in the work environment, which by its very location gives the hospital no authority over its employee. However, because the content of the speech contained the Magnolia Hospital mug, it was inevitable for the hospital to get involved. As for the matter of public concern, once the employee’s freedom of speech was evaluated as a public worker and not an ordinary citizen, it was easy to apply the test of public concern on Freeman and prove that this criterion wasn’t met.
Sources:
[1] Freedom of Speech in USA for Employees of Private Companies
http://www.rbs2.com/freespch.htm
[2] Testing Whether the Government has Violated the First Amendment Rights of Employees
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/employpunishment.html
[3] Hospital worker fired over coffee cup in film loses claim
http://www.firstamendmentcenter.org/Speech/news.aspx?id=20925
[4] Free Speech Rights of Public Employees
http://www.michbar.org/journal/article.cfm?articleID=874&volumeID=66
[5] Balancing Act: Public Employees and Free Speech
http://www.firstamendmentcenter.org/PDF/FirstReport.PublicEmployees.PDF
[6] Government workers’ rights
http://www.las-elc.org/GovernmentWrksRights.pdf
Tuesday, December 2, 2008
Thursday, November 20, 2008
Police denial of press passes becomes area of contention for three journalists
There is a striking difference between access to public information and access to locations that cross police or fire lines. Without a doubt, journalists and the general public have equal access to information filed publicly. There is, however, the courtesy of press credentials [1] that police commissioners distribute only to news-gathering organizations. Unlike the Joe Schmoe citizen, the media has a compelling duty to impartially cover items that are of public interest and/or newsworthy. These press passes do not necessarily grant all reporters access to certain locations that cross police lines, but they do serve as ways to identify journalists “who should be admitted if members of the media are to be admitted.” [1] I will argue that police commissioners can deny press passes to reporters in the event that access to certain locations poses a threat to public safety. I will support the argument that the police commissioners should cap the distribution of press passes to a certain number of reporters only if they provide specific and legitimate reasons why their access is being denied.
Three journalists (Rafael Martinez Alequin, Ralph E. Smith, and David Wallis) filed a lawsuit against New York City on Nov. 12 after the New York Police Department refused to renew their press identification cards. [2] Ideally, press passes must be renewed each year in order for journalists to cross the police or fire lines. After going a year without using their press passes and being denied the renewal of their press credentials again this year, these journalists insisted that the police department’s actions were unconstitutional under the First Amendment. On Feb. 20, the journalists filed suit in state court challenging the Police Department’s “refusal to disclose information about its policy for issuing press passes to journalists.” [3] Arguably, these journalists were denied their First Amendment right to gather information that would eventually be published. These police officers took a vague approach in deciding who could and could not access scenes that are behind police and fire lines. Since the NYPD was not specific in its reasons for refusing these reporters access to the scene, there is too much discretion on the government’s part. The reporters cannot predict or determine whether or not their ability to access certain locations and to ask questions to certain local authorities will be restrained. These press passes are the vital tools that provide clarity and certainty that these reporters have access to the certain newsworthy scenes to which the public would otherwise have no access. It is important that the journalists do their job of serving the public interest without the hindrance of an overly vague police restriction.
Not only would some argue that the police department’s actions were unconstitutional based on vagueness, but they also thought they discriminated against journalists who do not cover police or fire related stories on a regular basis. It is possible that the police categorized them into the less privileged body of news-gathering organizations. However, these three journalists held press credentials in the past and worked for legitimate news organizations. Wallis had his press identification from 1994 to August 2007, when “his petition to obtain the card again was denied without explanation.” [2] He does news coverage for over 1,500 publications worldwide. Smith publishes on a website for black law enforcement workers. He had his press credential from 1996 to January 2007, when the police refused to renew his press pass. Smith went as far as to ask for a written explanation for the denial but has not received a response yet. For Alequin, he had been working for a publication in New York from 1983 to 2001. When his wife passed away, he decided to launch an online publication in 2003 and start blogging in 2007. He had a working press card from 1986 to 2000 and from 2005 to 2006. [4]
These journalists sued New York City based on the belief that the police denied their press passes arbitrarily and that the police had no authority to deny their recognition as journalists. That is not the case. It turns out that the Police Department issues two forms of identification that distinguishes the reporters who cover “spot or breaking news on a regular basis such as robbery scenes, fires, homicides, train wrecks, bombings, plane crashes” from the reporters who do “not normally cover spot or breaking news.” [4] This categorization is not discriminatory and is necessary in situations where the presence of the mass media is harmful or slows down the police or fire department from reaching the scene. Although the plaintiffs already applied for press passes, there is no guarantee that they will receive them, since they did not send their request directly to the Board of Supervisors. [5] Also, according to section 6 of Los Angeles Free Press v. Los Angeles, there is no constitutional requirement that the police officers “show uniform treatment to all publications or news media in issuing Press Passes, the only requirement being that there be a reasonable basis for the classification imposed.” So within reason, the NYPD could limit the number of reporters who had access to the scene that day. The only problem was that the police kept the reasons for denying press passes vague and assumed the issuance of two different journalistic credentials was sufficient enough to convey the message that only certain reporters were welcomed across the police lines.
Also, the three reporters questioned the police officers’ authority to deny them their credibility as journalists. After all, the purpose of press passes is to help them express their identity as journalists. If even this freedom of expression is refused because the police commissioners withheld the press passes, that is certainly unconstitutional conduct. This impedes the journalists’ ability to report on the news and serve the public interest as well. However, the city code gave the police commissioners full discretion to limit the number of press passes to the plaintiff’s staff. [5] That means the police commission has to classify groups of news organizations that can and cannot receive press passes. By the gesture of journalists asking police commissioners for press passes, they are demonstrating that they acknowledge the police as the legitimate authority. Therefore, Wallis should not have to question whether or not the NYPD should be “in the business of deciding who is” a journalist. [2] The police are granted the authority to issue press passes, and they are merely doing their job. That area leaves little room for contention.
At the same time, the duty of the sheriff in facilitating assistance to and from people in accident scenes or riots deserves equal attention. Although not specified in the NYPD case, there are times when the police must necessarily limit the press’ access to certain locations. In the Los Angeles Free Press Inc. v. Los Angeles case, "the number of Press Passes issued by Respondents is now restricted, the purpose of such restriction being to protect the public safety, health and welfare and to contribute to the efficient performance of policing duties.” [5] There is reason to believe that the police officers are using their best discretion when denying access to certain scenes because of their role as authority figures under the government. In an emergency, no one would question the police officers in their line of duty. It would be more practical and urgent to get out of their way to ensure that they rescue and reach the maximum amount of people as quickly and safely as possible without endangering the lives of the public bystanders or victims. Thus, the fact that the police commissioners denied members of the media press passes does not necessarily step over the boundary of their freedom of the press when there are bigger issues at hand.
The police commissioners should at least provide an explanation as to why some reporters are denied press passes instead of sending away reporters thinking that they were denied their freedom of the press and short-changed in their ability to pose questions to the authority figures on the scene. None of the three received specific reasons why their requests for press passes were denied. They were not given due process either, so they were uncertain about the role of government in monitoring and limiting the scope of press coverage to certain news-gathering organizations and not others. Even though the police officers clearly distinguished the VIP reporters who carried working press cards from those who carried press identification cards, which was based on showing courtesy to those “employed by a legitimate news organization,” this is still a vague rule of regulating the flow of the press into certain scenes that are behind police lines.
This uncertainty in the realm of reporting prevents journalists from gathering information in an unfettered marketplace of ideas. The fact that they did not receive due process of the law causes the journalists to experience chilled speech because they are unable to discern whether they have a right to petition the government for questionable police actions. Police forces have the responsibility of providing legitimate reasons for denying members of the media access to certain scenes. The next time these reporters attempt to cover breaking news behind police lines they will automatically seek less access because of the unnecessary barrier originally created between the press and government because of a vague regulation. Thus, when the police do not give a legitimate reason for denying the press access to a certain patrolled location, they abate the press’ duty to be the eyes and ears of the public.
Sources:
[1] Press passes may help you get in
http://www.rcfp.org/places/presspassesmayhelpyougetin.html
[2] Journalists fire back at NYC with lawsuit over credentials
http://www.rcfp.org/newsitems/index.php?i=7134
[3] Lawsuit over police press passes
http://cityroom.blogs.nytimes.com/2008/02/20/lawsuit-over-police-press-passes/
[4] N.Y.P.D. is sued over denial of press credentials
http://cityroom.blogs.nytimes.com/2008/11/12/nypd-is-sued-over-denial-of-press-credentials/
[5] Los Angeles Free Press Inc. v. City of Los Angeles
http://www.cfac.org/handbook/cases/LAFreePress_v._LA.pdf
Three journalists (Rafael Martinez Alequin, Ralph E. Smith, and David Wallis) filed a lawsuit against New York City on Nov. 12 after the New York Police Department refused to renew their press identification cards. [2] Ideally, press passes must be renewed each year in order for journalists to cross the police or fire lines. After going a year without using their press passes and being denied the renewal of their press credentials again this year, these journalists insisted that the police department’s actions were unconstitutional under the First Amendment. On Feb. 20, the journalists filed suit in state court challenging the Police Department’s “refusal to disclose information about its policy for issuing press passes to journalists.” [3] Arguably, these journalists were denied their First Amendment right to gather information that would eventually be published. These police officers took a vague approach in deciding who could and could not access scenes that are behind police and fire lines. Since the NYPD was not specific in its reasons for refusing these reporters access to the scene, there is too much discretion on the government’s part. The reporters cannot predict or determine whether or not their ability to access certain locations and to ask questions to certain local authorities will be restrained. These press passes are the vital tools that provide clarity and certainty that these reporters have access to the certain newsworthy scenes to which the public would otherwise have no access. It is important that the journalists do their job of serving the public interest without the hindrance of an overly vague police restriction.
Not only would some argue that the police department’s actions were unconstitutional based on vagueness, but they also thought they discriminated against journalists who do not cover police or fire related stories on a regular basis. It is possible that the police categorized them into the less privileged body of news-gathering organizations. However, these three journalists held press credentials in the past and worked for legitimate news organizations. Wallis had his press identification from 1994 to August 2007, when “his petition to obtain the card again was denied without explanation.” [2] He does news coverage for over 1,500 publications worldwide. Smith publishes on a website for black law enforcement workers. He had his press credential from 1996 to January 2007, when the police refused to renew his press pass. Smith went as far as to ask for a written explanation for the denial but has not received a response yet. For Alequin, he had been working for a publication in New York from 1983 to 2001. When his wife passed away, he decided to launch an online publication in 2003 and start blogging in 2007. He had a working press card from 1986 to 2000 and from 2005 to 2006. [4]
These journalists sued New York City based on the belief that the police denied their press passes arbitrarily and that the police had no authority to deny their recognition as journalists. That is not the case. It turns out that the Police Department issues two forms of identification that distinguishes the reporters who cover “spot or breaking news on a regular basis such as robbery scenes, fires, homicides, train wrecks, bombings, plane crashes” from the reporters who do “not normally cover spot or breaking news.” [4] This categorization is not discriminatory and is necessary in situations where the presence of the mass media is harmful or slows down the police or fire department from reaching the scene. Although the plaintiffs already applied for press passes, there is no guarantee that they will receive them, since they did not send their request directly to the Board of Supervisors. [5] Also, according to section 6 of Los Angeles Free Press v. Los Angeles, there is no constitutional requirement that the police officers “show uniform treatment to all publications or news media in issuing Press Passes, the only requirement being that there be a reasonable basis for the classification imposed.” So within reason, the NYPD could limit the number of reporters who had access to the scene that day. The only problem was that the police kept the reasons for denying press passes vague and assumed the issuance of two different journalistic credentials was sufficient enough to convey the message that only certain reporters were welcomed across the police lines.
Also, the three reporters questioned the police officers’ authority to deny them their credibility as journalists. After all, the purpose of press passes is to help them express their identity as journalists. If even this freedom of expression is refused because the police commissioners withheld the press passes, that is certainly unconstitutional conduct. This impedes the journalists’ ability to report on the news and serve the public interest as well. However, the city code gave the police commissioners full discretion to limit the number of press passes to the plaintiff’s staff. [5] That means the police commission has to classify groups of news organizations that can and cannot receive press passes. By the gesture of journalists asking police commissioners for press passes, they are demonstrating that they acknowledge the police as the legitimate authority. Therefore, Wallis should not have to question whether or not the NYPD should be “in the business of deciding who is” a journalist. [2] The police are granted the authority to issue press passes, and they are merely doing their job. That area leaves little room for contention.
At the same time, the duty of the sheriff in facilitating assistance to and from people in accident scenes or riots deserves equal attention. Although not specified in the NYPD case, there are times when the police must necessarily limit the press’ access to certain locations. In the Los Angeles Free Press Inc. v. Los Angeles case, "the number of Press Passes issued by Respondents is now restricted, the purpose of such restriction being to protect the public safety, health and welfare and to contribute to the efficient performance of policing duties.” [5] There is reason to believe that the police officers are using their best discretion when denying access to certain scenes because of their role as authority figures under the government. In an emergency, no one would question the police officers in their line of duty. It would be more practical and urgent to get out of their way to ensure that they rescue and reach the maximum amount of people as quickly and safely as possible without endangering the lives of the public bystanders or victims. Thus, the fact that the police commissioners denied members of the media press passes does not necessarily step over the boundary of their freedom of the press when there are bigger issues at hand.
The police commissioners should at least provide an explanation as to why some reporters are denied press passes instead of sending away reporters thinking that they were denied their freedom of the press and short-changed in their ability to pose questions to the authority figures on the scene. None of the three received specific reasons why their requests for press passes were denied. They were not given due process either, so they were uncertain about the role of government in monitoring and limiting the scope of press coverage to certain news-gathering organizations and not others. Even though the police officers clearly distinguished the VIP reporters who carried working press cards from those who carried press identification cards, which was based on showing courtesy to those “employed by a legitimate news organization,” this is still a vague rule of regulating the flow of the press into certain scenes that are behind police lines.
This uncertainty in the realm of reporting prevents journalists from gathering information in an unfettered marketplace of ideas. The fact that they did not receive due process of the law causes the journalists to experience chilled speech because they are unable to discern whether they have a right to petition the government for questionable police actions. Police forces have the responsibility of providing legitimate reasons for denying members of the media access to certain scenes. The next time these reporters attempt to cover breaking news behind police lines they will automatically seek less access because of the unnecessary barrier originally created between the press and government because of a vague regulation. Thus, when the police do not give a legitimate reason for denying the press access to a certain patrolled location, they abate the press’ duty to be the eyes and ears of the public.
Sources:
[1] Press passes may help you get in
http://www.rcfp.org/places/presspassesmayhelpyougetin.html
[2] Journalists fire back at NYC with lawsuit over credentials
http://www.rcfp.org/newsitems/index.php?i=7134
[3] Lawsuit over police press passes
http://cityroom.blogs.nytimes.com/2008/02/20/lawsuit-over-police-press-passes/
[4] N.Y.P.D. is sued over denial of press credentials
http://cityroom.blogs.nytimes.com/2008/11/12/nypd-is-sued-over-denial-of-press-credentials/
[5] Los Angeles Free Press Inc. v. City of Los Angeles
http://www.cfac.org/handbook/cases/LAFreePress_v._LA.pdf
Tuesday, November 11, 2008
Police charges disorderly conduct against photographer, Is police order a legitimate leash that should constrain First Amendment rights?
Photography is a form of free expression and an art of silent speech. It is a golden tool for journalists who use their freedom of the press to capture a thousand words and release it in the medium of their choice. Moreover, photographs are the most direct proof that an event or action occurred, which could be the springboard to a potentially newsworthy story. Placing a restriction that burdens the manner in which one displays, publishes, or broadcasts photographs is certainly an unconstitutional abridgment to the aforementioned freedoms. However, there are cases where reporters have been denied their First Amendment right to take pictures, even in a public setting where newsworthy events are happening on the spot.
A Penn State student and The Collegian photographer Michael Felletter was charged with a failure to disperse, disorderly conduct, a second-degree misdemeanor, and a third-degree misdemeanor because he chose not to leave the scene during a mass riot in the streets despite several police orders. [1] Instead of leaving, Felletter took photographs of the police officers as they arrested people and bascially followed the officers around. Felletter was merely fulfilling the assignment from his photo editor to take photos of the events that took place after Penn State's victorious football game in October. His intention for taking photographs was to capture a newsworthy topic. The fact that the event was newsworthy is a legitimate reason to provide Felletter with his First Amendment rights. When Felletter identified himself as a member of The Collegian staff, he said the officers didn't object to him being present. Later, State College Police Officer Nick Argiro told Felletter to leave the scene three times before he confiscated the photographer's drivers license. This implies that the officer wanted Felletter to stop taking photographs. Right then the officer demonstrated a restriction on the photographer's right to take these pictures, which were meant to be published in the Unversity newspaper. The officer's action leads ultimately to condoning the photographer from freely exercising his freedom of expression and eventual freedom of the press should his photographs be published. However, it is important to note that the officer clearly didn't make the judgment call to dismiss the photographer based on Felletter's character or intent. Both Felletter's character and intent seemed innocuous and unintentionally threatening to the rioters, so it is very unlikely that the officer dispersed the speaker's speech based on these two criteria. [11] Since it is difficult for law enforcers to spot out unlawful intent instead of arbitrarily conducting police procedures, it would seem easier for the police to censor all speech. That is a dangerous route that the law enforcers do not want to travel down. Arresting speakers for intent or character of their speech is unconstitutional because it takes a content-based approach to abridging speech.
Felletter wasn't trespassing on private property[4], nor was he harrassing any of the subjects he was photographing [5]. Both of these are ways that limitations could be placed on photography. Keep in mind that the riot is happening downtown out in the open where anyone outdoors would have seen it. That closes up the possibility that this case dealt with the tort law of intrusion because the streets are not a private location. [3] Also, there is no specific person claiming injunctive relief on the basis that Felletter's photos offended him or her by revealing private facts that would offend a reasonable person or not be considered concern to the public. [2] Clearly, there is no target that the photographer is trying to offend by taking pictures of the riot. However, Officer Argiro could reasonably argue that he was being portrayed in a false light because Felletter followed him around closely and took several shots over his shoulder. Although photographs are meant to capture precise and transitory instances [7], there's no telling whether or not Felletter tried to take as many pictures of Officer Argiro as possible to capture a moment when his actions appeared more malicious than they were intended to be. For instance, when Officer Argiro holds out two cans of pepper spray in Felletter's face and threaten to arrest him if he does not leave the premises, Felletter could have snagged a quick photograph and left the scene with a perfectly legitimate picture. The caption then could alter the photograph's meaning and end up portraying the Officer in a false light. However, this was not the case. It is merely my fickle imagination of the possibility in which the false light test could prevent Felletter from taking photographs.
Let's examine the act of taking pictures for a moment. There is no guarantee that taking photographs is an expressive activity. [6] After all, the photographs do not contain the meaning that one produced through internal thoughts, but they are captured forms of real life images that are outside of their ability to create or alter. Arguably, Felletter's First Amendment rights may have just been surrendered then and there because the law enforcers called him out on disorderly conduct. The police officers were trying to control the crowd in pandemonium, and the photographer's presence could instill more anger and hostility and add fuel to the riot. The way Officer Argiro puts it, Felletter's action of taking pictures "was causing the crowd to become more exhuberant [sic], excited, and destructive." [1] Then, Felletter mist be subject to the police authorities' order to stop taking pictures and leave the premises regardless of the fact that he just gave up his First Amendment rights to freedom of expression. In situations where the interest of the state in eliminating the danger produced from the speaker's First Amendment rights conflicts with the speaker exercising his or her First Amendment rights, the law enforcers hold the longer end of the stick. In other words, law enforcement officers make the on-the-spot decisions as to whether or not First Amendment rights of the speaker can be hampered if there is a hostile audience. [10] Once the police officers have full authority over the situation, they can charge the speakers exercising their First Amendment rights for disorderly conduct.
There are situations in which police officers' decision to charge for disorderly conduct is legitimate. For instance, in the City of Oak Creek v. King case (Wis. 1989), a reporter followed police officers through a road block to an airplane crash site. [8] A detective spotted the reporter and escorted him out. The reporter managed to break free, hop over a fence, and run up a hill to take pictures of the crash. When the detective caught up to the reporter and told him to leave, he refused. The reporter was arrested for disorderly conduct. This is a prime example of a way that the law enforcers can constrain one's First Amendment rights. The reporter trespassed in a location where road blocks were clear indicators that the site was not open to the public. Reporters do not receive preferential treatment. The public and the press are served the same way, and if a location is not open to the public, it is certainly not open to the media. That is a mistake on the reporters part in this case, so the charge of disorderly conduct was not unconstitutionally limiting the reporters' First Amendment rights.
However, law enforcers cannot charge speakers for disorderly conduct to mollify every hostile audience. In April, an undercover police officer, dispatched by the Harvard University Police Department, arrested two Harvard students.[9] Lisa Nieves refused to turn over photographs that were taken of the undercover police officer taking pictures of a student demonstration on public property. The cop promptly arrested her. Following the arrest, another student Patrick Keaney said if Nieves was going to be arrested he would have to go too. The undercover police officer does not provide clear reasons why he arrested Nieves, but one wild guess points straight to the fact that he wanted to prevent her from distributing those photographs of him. In the article, Nieves said her intent was to distribute the photos from the demonstration to the students. Therefore, the undercover cop would be in a sticky situation if it turned out he arrested her based on intent, which once again is unconstitutional.
Although there are instances where the police authority supercedes the speakers' First Amendment rights to prevent stirring up a violent audience, there lacks consistency and specificity in these police procedures. [12] Ultimately, arbitrarily charging speakers for disorderly conduct creates much vagueness in which there is no certainty whether or not the speech or expression is protected. This creates chilled speech, which causes speakers to say less speech, not more. In a free marketplace of ideas, speakers are entitled to the robust exchange of ideas, which should not be stifled even by vague police orders.
Sources:
[1] http://www.collegian.psu.edu/archive/2008/11/07/photographer_receives_misdemea.aspx
[2] http://www.rcfp.org/photoguide/intro.html
[3] http://www.jstor.org/stable/1342012?seq=4
[4] http://www.jstor.org/stable/1342012?seq=5
[5] http://www.jstor.org/stable/1342012?seq=6
[6] http://www.jstor.org/stable/1342012?seq=7
[7] http://www.jstor.org/stable/1342012?seq=11
[8] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=wisctapp2%5C1q00%5C99-2317&invol=1
[9] http://www.thecrimson.com/article.aspx?ref=523024
[10] http://www.jstor.org/sici?sici=0026-2234(197611)75%3A1%3C180%3AHCPCAF%3E2.0.CO%3B2-6
[11] http://www.jstor.org/stable/1287856?seq=7
[12] http://www.jstor.org/stable/1287856?seq=8
A Penn State student and The Collegian photographer Michael Felletter was charged with a failure to disperse, disorderly conduct, a second-degree misdemeanor, and a third-degree misdemeanor because he chose not to leave the scene during a mass riot in the streets despite several police orders. [1] Instead of leaving, Felletter took photographs of the police officers as they arrested people and bascially followed the officers around. Felletter was merely fulfilling the assignment from his photo editor to take photos of the events that took place after Penn State's victorious football game in October. His intention for taking photographs was to capture a newsworthy topic. The fact that the event was newsworthy is a legitimate reason to provide Felletter with his First Amendment rights. When Felletter identified himself as a member of The Collegian staff, he said the officers didn't object to him being present. Later, State College Police Officer Nick Argiro told Felletter to leave the scene three times before he confiscated the photographer's drivers license. This implies that the officer wanted Felletter to stop taking photographs. Right then the officer demonstrated a restriction on the photographer's right to take these pictures, which were meant to be published in the Unversity newspaper. The officer's action leads ultimately to condoning the photographer from freely exercising his freedom of expression and eventual freedom of the press should his photographs be published. However, it is important to note that the officer clearly didn't make the judgment call to dismiss the photographer based on Felletter's character or intent. Both Felletter's character and intent seemed innocuous and unintentionally threatening to the rioters, so it is very unlikely that the officer dispersed the speaker's speech based on these two criteria. [11] Since it is difficult for law enforcers to spot out unlawful intent instead of arbitrarily conducting police procedures, it would seem easier for the police to censor all speech. That is a dangerous route that the law enforcers do not want to travel down. Arresting speakers for intent or character of their speech is unconstitutional because it takes a content-based approach to abridging speech.
Felletter wasn't trespassing on private property[4], nor was he harrassing any of the subjects he was photographing [5]. Both of these are ways that limitations could be placed on photography. Keep in mind that the riot is happening downtown out in the open where anyone outdoors would have seen it. That closes up the possibility that this case dealt with the tort law of intrusion because the streets are not a private location. [3] Also, there is no specific person claiming injunctive relief on the basis that Felletter's photos offended him or her by revealing private facts that would offend a reasonable person or not be considered concern to the public. [2] Clearly, there is no target that the photographer is trying to offend by taking pictures of the riot. However, Officer Argiro could reasonably argue that he was being portrayed in a false light because Felletter followed him around closely and took several shots over his shoulder. Although photographs are meant to capture precise and transitory instances [7], there's no telling whether or not Felletter tried to take as many pictures of Officer Argiro as possible to capture a moment when his actions appeared more malicious than they were intended to be. For instance, when Officer Argiro holds out two cans of pepper spray in Felletter's face and threaten to arrest him if he does not leave the premises, Felletter could have snagged a quick photograph and left the scene with a perfectly legitimate picture. The caption then could alter the photograph's meaning and end up portraying the Officer in a false light. However, this was not the case. It is merely my fickle imagination of the possibility in which the false light test could prevent Felletter from taking photographs.
Let's examine the act of taking pictures for a moment. There is no guarantee that taking photographs is an expressive activity. [6] After all, the photographs do not contain the meaning that one produced through internal thoughts, but they are captured forms of real life images that are outside of their ability to create or alter. Arguably, Felletter's First Amendment rights may have just been surrendered then and there because the law enforcers called him out on disorderly conduct. The police officers were trying to control the crowd in pandemonium, and the photographer's presence could instill more anger and hostility and add fuel to the riot. The way Officer Argiro puts it, Felletter's action of taking pictures "was causing the crowd to become more exhuberant [sic], excited, and destructive." [1] Then, Felletter mist be subject to the police authorities' order to stop taking pictures and leave the premises regardless of the fact that he just gave up his First Amendment rights to freedom of expression. In situations where the interest of the state in eliminating the danger produced from the speaker's First Amendment rights conflicts with the speaker exercising his or her First Amendment rights, the law enforcers hold the longer end of the stick. In other words, law enforcement officers make the on-the-spot decisions as to whether or not First Amendment rights of the speaker can be hampered if there is a hostile audience. [10] Once the police officers have full authority over the situation, they can charge the speakers exercising their First Amendment rights for disorderly conduct.
There are situations in which police officers' decision to charge for disorderly conduct is legitimate. For instance, in the City of Oak Creek v. King case (Wis. 1989), a reporter followed police officers through a road block to an airplane crash site. [8] A detective spotted the reporter and escorted him out. The reporter managed to break free, hop over a fence, and run up a hill to take pictures of the crash. When the detective caught up to the reporter and told him to leave, he refused. The reporter was arrested for disorderly conduct. This is a prime example of a way that the law enforcers can constrain one's First Amendment rights. The reporter trespassed in a location where road blocks were clear indicators that the site was not open to the public. Reporters do not receive preferential treatment. The public and the press are served the same way, and if a location is not open to the public, it is certainly not open to the media. That is a mistake on the reporters part in this case, so the charge of disorderly conduct was not unconstitutionally limiting the reporters' First Amendment rights.
However, law enforcers cannot charge speakers for disorderly conduct to mollify every hostile audience. In April, an undercover police officer, dispatched by the Harvard University Police Department, arrested two Harvard students.[9] Lisa Nieves refused to turn over photographs that were taken of the undercover police officer taking pictures of a student demonstration on public property. The cop promptly arrested her. Following the arrest, another student Patrick Keaney said if Nieves was going to be arrested he would have to go too. The undercover police officer does not provide clear reasons why he arrested Nieves, but one wild guess points straight to the fact that he wanted to prevent her from distributing those photographs of him. In the article, Nieves said her intent was to distribute the photos from the demonstration to the students. Therefore, the undercover cop would be in a sticky situation if it turned out he arrested her based on intent, which once again is unconstitutional.
Although there are instances where the police authority supercedes the speakers' First Amendment rights to prevent stirring up a violent audience, there lacks consistency and specificity in these police procedures. [12] Ultimately, arbitrarily charging speakers for disorderly conduct creates much vagueness in which there is no certainty whether or not the speech or expression is protected. This creates chilled speech, which causes speakers to say less speech, not more. In a free marketplace of ideas, speakers are entitled to the robust exchange of ideas, which should not be stifled even by vague police orders.
Sources:
[1] http://www.collegian.psu.edu/archive/2008/11/07/photographer_receives_misdemea.aspx
[2] http://www.rcfp.org/photoguide/intro.html
[3] http://www.jstor.org/stable/1342012?seq=4
[4] http://www.jstor.org/stable/1342012?seq=5
[5] http://www.jstor.org/stable/1342012?seq=6
[6] http://www.jstor.org/stable/1342012?seq=7
[7] http://www.jstor.org/stable/1342012?seq=11
[8] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=wisctapp2%5C1q00%5C99-2317&invol=1
[9] http://www.thecrimson.com/article.aspx?ref=523024
[10] http://www.jstor.org/sici?sici=0026-2234(197611)75%3A1%3C180%3AHCPCAF%3E2.0.CO%3B2-6
[11] http://www.jstor.org/stable/1287856?seq=7
[12] http://www.jstor.org/stable/1287856?seq=8
Tuesday, November 4, 2008
Foot tapping is not free speech?
Over a year has elapsed since the arrest of Idaho Republican Sen. Larry Craig at the Minneapolis-St. Paul airport for soliciting sex using hand gestures and foot tapping in a bathroom stall. Craig’s lawyer Billy Martin resurrected the case this past September arguing First Amendment rights were at stake and that Craig‘s sexual gestures were protected (Foot). Craig makes the fundamental argument that the foot tapping and hand gestures were not offensive to the public since only an undercover officer spotted him. Even the argument that hand and foot gestures were non-offensive and did not breach the peace by stirring violence are valid reasons for Craig to defend his freedom of speech. I will agree with prosecuting attorney Chris Renz, who dismissed Martin’s argument that foot tapping is protected under the First Amendment to make it clear sexually themed expression is not always protected if the intent is to offend and if there is no way not to offend someone. Then, I will attempt to analyze why the Court disagreed by bringing up similar cases involving sexually themed expression. I will address the distinction between sexually themed expression demonstrated in public by a publicized political figure versus a joe-schmoe citizen.
A basic concept brought to light by the First Amendment is that everyone carries a shield of rights that provides a barrier between the speaker and government. As long as one’s free speech doesn’t come into conflict with another’s free speech, he/she will always stay protected in a bubble that’s unsusceptible to governmental interjections. Craig’s lawyer certainly thought he carried the shield with him when he used the “no one saw it” argument to justify that Craig’s sexual gestures did not offend anyone. I would have to agree that out of context, someone can make hand motions to direct people’s attention or call them over and tap one’s foot impatiently to show that there is a long wait. These two gestures, unlike the unmistakably unquestionable symbol of “shooting the bird” or “flicking one off” bear no offensive innuendo. There’s no historically offensive or universally repugnant meaning attached to these actions. Also, these gestures do not breach the peace (Texas v. Johnson). This means Craig’s acts did not stir any violent and angry feelings because the expression itself is not meant to cause a fight but still a surreptitiously crass way to catch someone’s attention enough to convey the message that he is seeking individuals who want to have sex.
However, there’s suppressed evidence in the aforementioned argument that since no one saw the sexual gestures, the sexual gestures bore no offense. If the argument was true, one could arguably say that since no one saw someone walking around nude in a public area then it was perfectly protected free speech and that action wasn’t offensive because people, the ones that take offense, were not present at the time and location. That doesn’t rid the idea of walking around in the nude in public as acceptable or protected because there was intent to offend someone. One does not decide to walk around nude in public in hopes of not offending anyone, but they actually accept that they are offending people. Likewise, there was intent behind Craig’s sexual gestures. He stood inside a bathroom stall to try luring people into having sex. The fact that there was intent and the notion that Craig inevitably accepted that his gestures would offend some people in a public restroom align the constellations here. Craig is intentionally using sexually themed expression to lure those who want what he has to offer and to offend those who would rather walk around wearing blind folds than see a political figure wiggling his finger at an innocent passerby in an airport restroom.
Craig’s case emphasizes the power behind intent and inevitably offending someone. There’s no way that he didn’t consider the fact that his gestures would offend some amid his goal to draw others. According to the Bethel School District v. Fraser case, the student giving a speech at a school-sponsored assembly recited his words in a manner that alluded to sexually themed expression. In his speech, he used “an elaborate, graphic, and explicit sexual metaphor" (Bethel, 5) to convey lewd and indecent speech. Although Craig used gestures and not words, he basically delivered a similar degree of offensive speech to people who understood what his sexual gestures indicated. When there’s no questionable or ambivalent ideas about the meaning of a gesture, then one can say that he or she was offended by the speaker. However, let me make clear that free speech does not give preferential treatment to those in political power. That is, they cannot use the argument that they are an important political figure to avoid the consequences of indecent speech. Also, people must be prepared to be offended if they interfere with the freedom of speech realm. For instance, in the Cohen v. California case, Cohen’s message on his jacket that read “F*** the Draft” could be read as an offensive, derogatory comment directed toward the government (Cohen). However, the government cannot bring a lawsuit against him because he had just as much freedom of speech to express as the government does. The fact that the f-word refers to sexually themed expression was not enough to condone Cohen from wearing the jacket in public. We could say Cohen was protected from the government's infringment on his First Amendment. Going back to the Craig case, the senator is unable to redeem himself for engaging in sexually themed expression because in his case, he is representing the government. When Craig tried to flash his identification card at the undercover police officer, he bascially demonstrated that he wanted preferential treatment. However, what he really wanted was protection under the First Amendment. In a way, Craig sought to retain the dual roles of a political figure and citizen status. The government is not supposed to act as an agent that takes advantage of the freedom of speech at the expense of its citizens or substitute oneself to the status of a citizen. Rather government should protect the free speech that the people throw at government in an effort to recognize the exercise of grassroots politics. So from what I see, the government cannot use the people’s shield, the First Amendment, as their own weapon of defense.
The reason why Craig’s political image affects whether or not his freedom of speech should be protected is because prominent leaders run the risk of losing face for the entire government. Some bitter people may use vulnerable politicians or leaders in government as the epitome of government’s worthlessness or the root of all evil based on their personal mistakes or misconduct. A line should be drawn between playing the dual role of a political figure and citizen for the sake of preventing the entire governmental realm from losing its face as an ethical institution that looks out for the interest of its citizens. Thus, protection under the First Amendment should be acquiesced wholly to the people's discretion and not used by government for a last minute quick fix up when they make mistakes in public.
Sources:
http://politicalticker.blogs.cnn.com/2008/09/10/foot-tapping-protected-by-first-amendment-craigs-lawyer-argues/ (Foot tapping protected by First Amendment, Craig’s lawyer says)
http://www.3rdcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=12238 (Texas Court of Appeals, Third District, At Austin)
http://en.wikipedia.org/wiki/Texas_v._Johnson (Texas v. Johnson)
Cohen v. California (Jour 199 book)
Bethel School District v. Fraser (Jour 199 book)
A basic concept brought to light by the First Amendment is that everyone carries a shield of rights that provides a barrier between the speaker and government. As long as one’s free speech doesn’t come into conflict with another’s free speech, he/she will always stay protected in a bubble that’s unsusceptible to governmental interjections. Craig’s lawyer certainly thought he carried the shield with him when he used the “no one saw it” argument to justify that Craig’s sexual gestures did not offend anyone. I would have to agree that out of context, someone can make hand motions to direct people’s attention or call them over and tap one’s foot impatiently to show that there is a long wait. These two gestures, unlike the unmistakably unquestionable symbol of “shooting the bird” or “flicking one off” bear no offensive innuendo. There’s no historically offensive or universally repugnant meaning attached to these actions. Also, these gestures do not breach the peace (Texas v. Johnson). This means Craig’s acts did not stir any violent and angry feelings because the expression itself is not meant to cause a fight but still a surreptitiously crass way to catch someone’s attention enough to convey the message that he is seeking individuals who want to have sex.
However, there’s suppressed evidence in the aforementioned argument that since no one saw the sexual gestures, the sexual gestures bore no offense. If the argument was true, one could arguably say that since no one saw someone walking around nude in a public area then it was perfectly protected free speech and that action wasn’t offensive because people, the ones that take offense, were not present at the time and location. That doesn’t rid the idea of walking around in the nude in public as acceptable or protected because there was intent to offend someone. One does not decide to walk around nude in public in hopes of not offending anyone, but they actually accept that they are offending people. Likewise, there was intent behind Craig’s sexual gestures. He stood inside a bathroom stall to try luring people into having sex. The fact that there was intent and the notion that Craig inevitably accepted that his gestures would offend some people in a public restroom align the constellations here. Craig is intentionally using sexually themed expression to lure those who want what he has to offer and to offend those who would rather walk around wearing blind folds than see a political figure wiggling his finger at an innocent passerby in an airport restroom.
Craig’s case emphasizes the power behind intent and inevitably offending someone. There’s no way that he didn’t consider the fact that his gestures would offend some amid his goal to draw others. According to the Bethel School District v. Fraser case, the student giving a speech at a school-sponsored assembly recited his words in a manner that alluded to sexually themed expression. In his speech, he used “an elaborate, graphic, and explicit sexual metaphor" (Bethel, 5) to convey lewd and indecent speech. Although Craig used gestures and not words, he basically delivered a similar degree of offensive speech to people who understood what his sexual gestures indicated. When there’s no questionable or ambivalent ideas about the meaning of a gesture, then one can say that he or she was offended by the speaker. However, let me make clear that free speech does not give preferential treatment to those in political power. That is, they cannot use the argument that they are an important political figure to avoid the consequences of indecent speech. Also, people must be prepared to be offended if they interfere with the freedom of speech realm. For instance, in the Cohen v. California case, Cohen’s message on his jacket that read “F*** the Draft” could be read as an offensive, derogatory comment directed toward the government (Cohen). However, the government cannot bring a lawsuit against him because he had just as much freedom of speech to express as the government does. The fact that the f-word refers to sexually themed expression was not enough to condone Cohen from wearing the jacket in public. We could say Cohen was protected from the government's infringment on his First Amendment. Going back to the Craig case, the senator is unable to redeem himself for engaging in sexually themed expression because in his case, he is representing the government. When Craig tried to flash his identification card at the undercover police officer, he bascially demonstrated that he wanted preferential treatment. However, what he really wanted was protection under the First Amendment. In a way, Craig sought to retain the dual roles of a political figure and citizen status. The government is not supposed to act as an agent that takes advantage of the freedom of speech at the expense of its citizens or substitute oneself to the status of a citizen. Rather government should protect the free speech that the people throw at government in an effort to recognize the exercise of grassroots politics. So from what I see, the government cannot use the people’s shield, the First Amendment, as their own weapon of defense.
The reason why Craig’s political image affects whether or not his freedom of speech should be protected is because prominent leaders run the risk of losing face for the entire government. Some bitter people may use vulnerable politicians or leaders in government as the epitome of government’s worthlessness or the root of all evil based on their personal mistakes or misconduct. A line should be drawn between playing the dual role of a political figure and citizen for the sake of preventing the entire governmental realm from losing its face as an ethical institution that looks out for the interest of its citizens. Thus, protection under the First Amendment should be acquiesced wholly to the people's discretion and not used by government for a last minute quick fix up when they make mistakes in public.
Sources:
http://politicalticker.blogs.cnn.com/2008/09/10/foot-tapping-protected-by-first-amendment-craigs-lawyer-argues/ (Foot tapping protected by First Amendment, Craig’s lawyer says)
http://www.3rdcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=12238 (Texas Court of Appeals, Third District, At Austin)
http://en.wikipedia.org/wiki/Texas_v._Johnson (Texas v. Johnson)
Cohen v. California (Jour 199 book)
Bethel School District v. Fraser (Jour 199 book)
Monday, October 20, 2008
Gag orders are not always prior restraints
The media are the backbones of the public. Therefore, they must be assertive and know when to interfere with the courts without fear that the government will infringe on the public's freedom of speech and press. For instance, if the court decides to close the doors of certain criminal trials to the public, the media should instantly contest with the court the public's right to know and the media's right to access information that shape story investigations. Without the proactive role of the media putting their foot in the door, the government ends up imposing prior restraints on the reporters' investigative pieces. This prevents the exposure of the truth hidden behind the caution-taped, closed door criminal trials. The government cannot withhold records that, once on file, are accessible to the public, and it certainly should not place gag orders on the press. These restrictions should not be attempted by the government because this action is unconstitutional and very rarely justified.
The courts can go as far as issuing a gag order on its defendants, victims, and witnesses to prevent them from speaking to reporters who publish trial predictions during the pre-trial hearings. Although gag orders are meant to stifle the pre-trial prejudice the public may develop through the media's interview with certain parties, the court is stepping over its boundaries by indirectly imposing a prior restraint (Prior). In other words, by taking away the source (i.e. defendants, victims or witnesses), the press no longer has access to vital information, which prevents them from uncovering prosecutions, cross-examinations, and judicial processes that were misconducted. Even if reporters interviewed their sources before the gag order, the court can order the press not to publish the information. This prior restraint is dangerous and unconstitutional because it places limitations on the press' ability to look into unconstitutional moves made during judicial processes and places the burden of what to publish on the speakers, not the government. In other words, the press becomes uncertain about which information the government will restrict, so they experience chilled speech. According to Chief Justice Warren Burger in the Nebraska Press Assn v. Stuart case (1976), he believes it is unconstitutional to execute gag orders on the press. Burger states that prior restraints on speech and publication are intolerable infringements on First Amendment rights. He adds that the risk of criminal sanctions after publication chills speech, but prior restraint may just as well freeze speech altogether (Prior).
A more recent example of a gag order is the Sheley case in Galesburg, Ill. Nicholas Sheley, who was accused of first degree murder and responsible for eight deaths, sat in Knox County jail and spoke with an Associate Press member on Sept. 23, 2008. Sheley commented to the press that the court was not fulfilling his Sixth Amendment rights to a speedy trial and his right to know the nature of his accusations, which he claimed the court never spoke to him about (Judge). Immediately, the Ninth Circuit Judge James Steward issued a gag order, which prevented Sheley from standing trial until he is fit for a hearing. Although the government didn't directly impede the AP from doing further research on this court case, the judge took away access to a vital source. Judge Steward seems to think the AP reporter mustered too much courage in Sheley to be uncooperative. That doesn't justify placing further restrictions on Sheley, who does have a point when he says the court did not follow through on his Sixth Amendment rights. In a way, it would make the judge look worse off because he placed a gag order on the alleged criminal who had revealed to the public that he had no basic trial rights. However because the defendant always has the chance to be brought back to the trial, the government is not completely denying Sheley his rights (Gag). The problem is, the press no longer controls the streamline of information between the defendant and the public after the court blocks access to Sheley. Removing sources' ability to speak to the press places more suspicion on the court's ability to oversee the criminal court system in a just manner.
In some instances, the court has the constitutional right to issue gag orders directed at the victims, defendants, witnesses and lawyers. Some judges and prosecutors may argue that a gag order is the only way to ensure a fair trial. A gag order can be a positive move if it protects the Sixth Amendment rights of the individual undergoing criminal proceeding. This saves the defendants from facing public misjudgments. For instance, United States District Judge Samuel Kent was the first judge to be indicted for sex crimes. The alleged victim wanted to manipulate the media coverage by openly telling the media a biased story (Court). However, once the court issued the gag order, no one involved in the criminal trial had the freedom to express their views other than in front of a public trial setting. This protected Judge Kent's assurance of a fair trial and prevented the public from forming misconceptions about the defendant before the court laid out the full scope of the trial. The court may also deny the press access to "rap sheets" because they invade personal privacy rights. In the Department of Justice v. Reporters Committee for Freedom of the Press (1989) case, the court pointed out that "rap sheets" are clearly private information that protects criminals.
In some cases, the prosecutors would issue a gag order to a third party to prevent the disclosure of documents related to investigations that need more time to examine. For instance, a county prosecutor investigating the sexual assault case on the University of Iowa campus informed Iowa administrators to withhold from the public copies of the subpoenas related to the investigation (Iowa) in November 2007. When newspapers requested copies of subpoenas Johnson County Attorney Janet Lyness said they couldn't obtain these documents because she was treating the case like a grand jury proceeding. The Iowa City Press-Citizen filed a lawsuit against the university because the school wouldn't provide them with the documents containing the judge's statement about the sexual assault investigation. In a sense, Lyness was not specific about her reasons for preventing Iowa from releasing the documents. In fact, this act of withholding is an indirect method of using prior restraint. Since the newspapers could not obtain the documents, which would be considered public records, the press lost its opportunity to delve deeper into an investigation that would inform and serve the public. In any case, the press couldn't exercise its freedom to report impartially on an issue because there was a vague restriction on those public documents. The court should refrain from overly vague reasons for issuing a gag order because this acts as an unnecessary barrier between the press and the court.
By taking proper procedures, the media has the right to obtain certain confidential reports and look deeper into criminal cases. This is not to say that the media has complete access to all information related to the criminal investigations. For instance, reporters cannot obtain a copy of a police warrant until the judge issues it, sends a copy to the person being searched, and information about the items seized and the officer's complaints have been filed in the clerk of court (Access). Likewise, there was a way for the media to obtain the copies of the subpoena in the Iowa case. The report mentioned that the university was a third party. Although court officials must abide by the order to seal subpoenas, the university doesn't have to comply (Iowa). Thus, the newspaper could have obtained the copies of subpoenas from the university instead of asking the court, and their actions would've been justified. However, the unfortunate government issuance of a gag order prevented the media from obtaining the information that would otherwise be readily accessible.
Although the press may not win every challenge, there are special cases where publishing the truth discourages the judges and prosecutors from issuing gag orders. More specifically, in Landmark Communications, Inc. v. Virginia (1978), the court protected a publication revealing factual information that served the public interest and examining the judicial proceedings. This was despite the fact that a Virginia statute called it a criminal offense to disclose information during pending judicial proceedings (Prior). This shows that the power of truth has potential to override existing laws.
Before 2000, Illinois had no statutory provision that allowed the media access to arrest reports (Access). In 2000, Illinois enacted a new statute that requires law enforcement agencies to make available information that identifies the person, lays out the charges related to the arrest, specifies the time and location of the arrest, reveals the name of the arresting authorities, informs the amount of bail or bond, and tells the time and date the arrested person was received, discharged or transferred from custody (Access). Changes in the law and precedence set by court cases are opening up access to a plethora of information for the public and making it harder for the government to force a prior restraint on the media.
The most important note to make about gag orders is that the government shouldn't use them as weapons against the press. The Court should not issue gag orders for trials where there is no evident danger nor should the media and public back down from their right to challenge the gag orders. As long as the interest of the public is at stake, the government must yield to the media's duty to serve that interest. However, the media relinquishes its rights to obtain confidential information in the face of imminent intrusions of privacy.
http://www.rcfp.org/newsitems/index.php?i=6976 (Court issues broad gag order in federal judge's sex-abuse trial)
http://www.firstamendmentcenter.org/news.aspx?id=19519 (Iowa prosecutor blocks release of files in sex-assault investigation)
http://www.galesburg.com/news/x1464869792/Judge-issues-gag-order-in-Sheley-case (Judge issues gag order on Sheley case)
http://legal-dictionary.thefreedictionary.com/gag+law (Gag order- Legal Dictionary)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=427&invol=539 (Nebraska Press Association v. Stuart 1976)
http://www.illinoisfirstamendmentcenter.com/pdf/Media_Law_Chap7.pdf (Access to courts and documents)
http://www.illinoisfirstamendmentcenter.com/pdf/Media_Law_Chap13.pdf (Prior restraint)
The courts can go as far as issuing a gag order on its defendants, victims, and witnesses to prevent them from speaking to reporters who publish trial predictions during the pre-trial hearings. Although gag orders are meant to stifle the pre-trial prejudice the public may develop through the media's interview with certain parties, the court is stepping over its boundaries by indirectly imposing a prior restraint (Prior). In other words, by taking away the source (i.e. defendants, victims or witnesses), the press no longer has access to vital information, which prevents them from uncovering prosecutions, cross-examinations, and judicial processes that were misconducted. Even if reporters interviewed their sources before the gag order, the court can order the press not to publish the information. This prior restraint is dangerous and unconstitutional because it places limitations on the press' ability to look into unconstitutional moves made during judicial processes and places the burden of what to publish on the speakers, not the government. In other words, the press becomes uncertain about which information the government will restrict, so they experience chilled speech. According to Chief Justice Warren Burger in the Nebraska Press Assn v. Stuart case (1976), he believes it is unconstitutional to execute gag orders on the press. Burger states that prior restraints on speech and publication are intolerable infringements on First Amendment rights. He adds that the risk of criminal sanctions after publication chills speech, but prior restraint may just as well freeze speech altogether (Prior).
A more recent example of a gag order is the Sheley case in Galesburg, Ill. Nicholas Sheley, who was accused of first degree murder and responsible for eight deaths, sat in Knox County jail and spoke with an Associate Press member on Sept. 23, 2008. Sheley commented to the press that the court was not fulfilling his Sixth Amendment rights to a speedy trial and his right to know the nature of his accusations, which he claimed the court never spoke to him about (Judge). Immediately, the Ninth Circuit Judge James Steward issued a gag order, which prevented Sheley from standing trial until he is fit for a hearing. Although the government didn't directly impede the AP from doing further research on this court case, the judge took away access to a vital source. Judge Steward seems to think the AP reporter mustered too much courage in Sheley to be uncooperative. That doesn't justify placing further restrictions on Sheley, who does have a point when he says the court did not follow through on his Sixth Amendment rights. In a way, it would make the judge look worse off because he placed a gag order on the alleged criminal who had revealed to the public that he had no basic trial rights. However because the defendant always has the chance to be brought back to the trial, the government is not completely denying Sheley his rights (Gag). The problem is, the press no longer controls the streamline of information between the defendant and the public after the court blocks access to Sheley. Removing sources' ability to speak to the press places more suspicion on the court's ability to oversee the criminal court system in a just manner.
In some instances, the court has the constitutional right to issue gag orders directed at the victims, defendants, witnesses and lawyers. Some judges and prosecutors may argue that a gag order is the only way to ensure a fair trial. A gag order can be a positive move if it protects the Sixth Amendment rights of the individual undergoing criminal proceeding. This saves the defendants from facing public misjudgments. For instance, United States District Judge Samuel Kent was the first judge to be indicted for sex crimes. The alleged victim wanted to manipulate the media coverage by openly telling the media a biased story (Court). However, once the court issued the gag order, no one involved in the criminal trial had the freedom to express their views other than in front of a public trial setting. This protected Judge Kent's assurance of a fair trial and prevented the public from forming misconceptions about the defendant before the court laid out the full scope of the trial. The court may also deny the press access to "rap sheets" because they invade personal privacy rights. In the Department of Justice v. Reporters Committee for Freedom of the Press (1989) case, the court pointed out that "rap sheets" are clearly private information that protects criminals.
In some cases, the prosecutors would issue a gag order to a third party to prevent the disclosure of documents related to investigations that need more time to examine. For instance, a county prosecutor investigating the sexual assault case on the University of Iowa campus informed Iowa administrators to withhold from the public copies of the subpoenas related to the investigation (Iowa) in November 2007. When newspapers requested copies of subpoenas Johnson County Attorney Janet Lyness said they couldn't obtain these documents because she was treating the case like a grand jury proceeding. The Iowa City Press-Citizen filed a lawsuit against the university because the school wouldn't provide them with the documents containing the judge's statement about the sexual assault investigation. In a sense, Lyness was not specific about her reasons for preventing Iowa from releasing the documents. In fact, this act of withholding is an indirect method of using prior restraint. Since the newspapers could not obtain the documents, which would be considered public records, the press lost its opportunity to delve deeper into an investigation that would inform and serve the public. In any case, the press couldn't exercise its freedom to report impartially on an issue because there was a vague restriction on those public documents. The court should refrain from overly vague reasons for issuing a gag order because this acts as an unnecessary barrier between the press and the court.
By taking proper procedures, the media has the right to obtain certain confidential reports and look deeper into criminal cases. This is not to say that the media has complete access to all information related to the criminal investigations. For instance, reporters cannot obtain a copy of a police warrant until the judge issues it, sends a copy to the person being searched, and information about the items seized and the officer's complaints have been filed in the clerk of court (Access). Likewise, there was a way for the media to obtain the copies of the subpoena in the Iowa case. The report mentioned that the university was a third party. Although court officials must abide by the order to seal subpoenas, the university doesn't have to comply (Iowa). Thus, the newspaper could have obtained the copies of subpoenas from the university instead of asking the court, and their actions would've been justified. However, the unfortunate government issuance of a gag order prevented the media from obtaining the information that would otherwise be readily accessible.
Although the press may not win every challenge, there are special cases where publishing the truth discourages the judges and prosecutors from issuing gag orders. More specifically, in Landmark Communications, Inc. v. Virginia (1978), the court protected a publication revealing factual information that served the public interest and examining the judicial proceedings. This was despite the fact that a Virginia statute called it a criminal offense to disclose information during pending judicial proceedings (Prior). This shows that the power of truth has potential to override existing laws.
Before 2000, Illinois had no statutory provision that allowed the media access to arrest reports (Access). In 2000, Illinois enacted a new statute that requires law enforcement agencies to make available information that identifies the person, lays out the charges related to the arrest, specifies the time and location of the arrest, reveals the name of the arresting authorities, informs the amount of bail or bond, and tells the time and date the arrested person was received, discharged or transferred from custody (Access). Changes in the law and precedence set by court cases are opening up access to a plethora of information for the public and making it harder for the government to force a prior restraint on the media.
The most important note to make about gag orders is that the government shouldn't use them as weapons against the press. The Court should not issue gag orders for trials where there is no evident danger nor should the media and public back down from their right to challenge the gag orders. As long as the interest of the public is at stake, the government must yield to the media's duty to serve that interest. However, the media relinquishes its rights to obtain confidential information in the face of imminent intrusions of privacy.
http://www.rcfp.org/newsitems/index.php?i=6976 (Court issues broad gag order in federal judge's sex-abuse trial)
http://www.firstamendmentcenter.org/news.aspx?id=19519 (Iowa prosecutor blocks release of files in sex-assault investigation)
http://www.galesburg.com/news/x1464869792/Judge-issues-gag-order-in-Sheley-case (Judge issues gag order on Sheley case)
http://legal-dictionary.thefreedictionary.com/gag+law (Gag order- Legal Dictionary)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=427&invol=539 (Nebraska Press Association v. Stuart 1976)
http://www.illinoisfirstamendmentcenter.com/pdf/Media_Law_Chap7.pdf (Access to courts and documents)
http://www.illinoisfirstamendmentcenter.com/pdf/Media_Law_Chap13.pdf (Prior restraint)
Saturday, October 11, 2008
Newspaper companies go out of business
"In the past, the government knew that the media would take legal action every time information was restricted. But now the government has gotten 'pretty canny in knowing' that with financial pressures 'there’s less fight in the media to battle for information.' "
I was utterly shocked when Brad Maas, the leader of the investigative team at Denver's CBS 4, spoke these words at the National Press Club Centennial Forum (Industry) on Sept. 9, 2008. There's no doubt that the government must lend a hand financially in cases where newspaper companies struggle to provide maximal and unbiased news coverage, especially on government-related issues. Not doing so would put the risk of hampering the freedom of the press into the government's hands. The government cannot simply let the economic crisis take the fate of newspaper companies because eventually they shut down or lose their voice in the marketplace of ideas. The newspaper companies' lack of money limits their scope of news coverage to stories that are cheap and easy to do and don't require in-depth research. The government needs to take a pro-active role to fund the print news medium to ensure that the voices of the press remain unstifled and uninhibited from fully expressing ideas.
It is painful for a reporter to even admit that the government has autonomous control over the amount of access the media has to information these days. I'm almost convinced that money really does make the world go around because the government controls the purse and inadvertently hushes the media. The reality is, newspaper companies who are struck heaviest with this year's economic depression can't afford to sue the government when officials conduct unfair moves such as withholding federal information, closing down cases that require further journalistic investigation, and suing newspaper companies for publishing government officials' phone, voting, or any other legitimately accessible records. That leaves these companies to publish less speech and not more. No one would dare take the risk of disclosing any governmental information if struggling newspaper companies know the government will sue, asking for money that they do not have. That is a clear violation of the first amendment rights to the freedom of speech.
The economic depression is taking a disastrous hit on newspaper companies nationwide. Newspaper companies are struggling to finance their publications, and older, more experienced employees are substituted for the younger generation reporters who will work for less pay and won't touch the controversial topics. Although most people would use newspapers as doormats or fly swatters, newspaper companies are willing to see some pages go to waste for the sake of reaching its few loyal readers.
Nevertheless, newspaper readership continues to decline. The Audit Bureau of Circulations reported that nearly two-thirds of the nation's newspaper circulation declined, including major companies such as The Washington Post and The Chicago Tribune. The Washington Post alone experienced a loss of 24,000 readers per week, averaging a three percent drop in newspaper readership (Media). The Chicago Tribune reported that it took out its book review newspaper section in favor of a smaller "books and media section" this month. In September, The New York Times resorted to pulling out the Metro Section altogether and instead added a couple pages after the national and international news pages designated for the metro section readers (Metro). In addition to the readership decline, print journalism is losing its credibility as an unbiased source of information since the government keeps a keen watch on what the papers say about them (Why). The lack of readership coupled with the firing of half the staff all point to the need for government to intervene. Editors are left to make content decisions that affect the level of readership interests. Money is fully susceptible to changing the usual spectrum of diversity in the stories to a more narrow scope. It's not the freedom of the press without the government to advocate positive freedom-- the financial assistance necessary to keep newspaper coverage impartial.
These are compromises that the newspaper companies should not have to make. After all, in order to ensure the freedom of the press and the robust exchange of ideas, the speakers, in this case newspaper companies, mustn't feel inhibited or limited in the scope of their press coverage and investigations just because they are balancing a tight budget and can't use more than six pages to tell the news. What is more critical is that the government needs to provide positive liberties-- a means of helping finance long-time operating newspaper publications that are on the brink of shutting down. If newspaper companies must forfeit their voice in the marketplace of ideas simply because it costs money to thoroughly research investigation and lawsuits, there is clearly an obstacle standing in front of the press.
However, this concept of the government's need to take an active role in cases where the newspaper companies need funding to keep publishing is not always beneficial. There is a flip-side to the government's involvement in funding newspapers. If the government provides extra budgets for each individual newspaper, the papers will become heavily dependent on government, leaving room for readers to question the objectivity of the news coverage. Essentially, the government will possess the power to control the media's press angle inadvertently by dangling monetary incentives to cover less politically controversial topics. The media is placing a huge risk of losing credibility if newspaper companies turn to the government to help their businesses get back on their feet.
http://blog.press.org/?p=814 (Industry Downturn Spurs Gov't Push Back on Info)
http://openrecords.wordpress.com/2008/09/15/why-the-decline-of-newspaper-readership-is-bad-part-ix/ (Why the decline of newspaper readership is bad)
I was utterly shocked when Brad Maas, the leader of the investigative team at Denver's CBS 4, spoke these words at the National Press Club Centennial Forum (Industry) on Sept. 9, 2008. There's no doubt that the government must lend a hand financially in cases where newspaper companies struggle to provide maximal and unbiased news coverage, especially on government-related issues. Not doing so would put the risk of hampering the freedom of the press into the government's hands. The government cannot simply let the economic crisis take the fate of newspaper companies because eventually they shut down or lose their voice in the marketplace of ideas. The newspaper companies' lack of money limits their scope of news coverage to stories that are cheap and easy to do and don't require in-depth research. The government needs to take a pro-active role to fund the print news medium to ensure that the voices of the press remain unstifled and uninhibited from fully expressing ideas.
It is painful for a reporter to even admit that the government has autonomous control over the amount of access the media has to information these days. I'm almost convinced that money really does make the world go around because the government controls the purse and inadvertently hushes the media. The reality is, newspaper companies who are struck heaviest with this year's economic depression can't afford to sue the government when officials conduct unfair moves such as withholding federal information, closing down cases that require further journalistic investigation, and suing newspaper companies for publishing government officials' phone, voting, or any other legitimately accessible records. That leaves these companies to publish less speech and not more. No one would dare take the risk of disclosing any governmental information if struggling newspaper companies know the government will sue, asking for money that they do not have. That is a clear violation of the first amendment rights to the freedom of speech.
The economic depression is taking a disastrous hit on newspaper companies nationwide. Newspaper companies are struggling to finance their publications, and older, more experienced employees are substituted for the younger generation reporters who will work for less pay and won't touch the controversial topics. Although most people would use newspapers as doormats or fly swatters, newspaper companies are willing to see some pages go to waste for the sake of reaching its few loyal readers.
Nevertheless, newspaper readership continues to decline. The Audit Bureau of Circulations reported that nearly two-thirds of the nation's newspaper circulation declined, including major companies such as The Washington Post and The Chicago Tribune. The Washington Post alone experienced a loss of 24,000 readers per week, averaging a three percent drop in newspaper readership (Media). The Chicago Tribune reported that it took out its book review newspaper section in favor of a smaller "books and media section" this month. In September, The New York Times resorted to pulling out the Metro Section altogether and instead added a couple pages after the national and international news pages designated for the metro section readers (Metro). In addition to the readership decline, print journalism is losing its credibility as an unbiased source of information since the government keeps a keen watch on what the papers say about them (Why). The lack of readership coupled with the firing of half the staff all point to the need for government to intervene. Editors are left to make content decisions that affect the level of readership interests. Money is fully susceptible to changing the usual spectrum of diversity in the stories to a more narrow scope. It's not the freedom of the press without the government to advocate positive freedom-- the financial assistance necessary to keep newspaper coverage impartial.
These are compromises that the newspaper companies should not have to make. After all, in order to ensure the freedom of the press and the robust exchange of ideas, the speakers, in this case newspaper companies, mustn't feel inhibited or limited in the scope of their press coverage and investigations just because they are balancing a tight budget and can't use more than six pages to tell the news. What is more critical is that the government needs to provide positive liberties-- a means of helping finance long-time operating newspaper publications that are on the brink of shutting down. If newspaper companies must forfeit their voice in the marketplace of ideas simply because it costs money to thoroughly research investigation and lawsuits, there is clearly an obstacle standing in front of the press.
However, this concept of the government's need to take an active role in cases where the newspaper companies need funding to keep publishing is not always beneficial. There is a flip-side to the government's involvement in funding newspapers. If the government provides extra budgets for each individual newspaper, the papers will become heavily dependent on government, leaving room for readers to question the objectivity of the news coverage. Essentially, the government will possess the power to control the media's press angle inadvertently by dangling monetary incentives to cover less politically controversial topics. The media is placing a huge risk of losing credibility if newspaper companies turn to the government to help their businesses get back on their feet.
The government's lack of intervention isn't the only cause of declining newspaper readership. With the diverse choices of media in a declining market, consumers will become more stratified and spread out. Eventually, newspaper readership will thin out because some of the consumers have made a definitive choice to use the Internet as their main source of information. With the Internet providing a 24/7 forum of information that is available with a click of the button, newspaper subscriptions and readership level have dropped about 2.5% during the weekdays and 3.1% on Sundays (Newspaper).
The American public has a right to access the gamut of media available today. It is the government's responsibility to ensure that all media resources have an equal chance to compete with one another. It is entirely necessary for the government to take the stand when newspaper companies go out of business because no funding will further decrease the availability of an important medium. The government should be supportive without imbuing its own ideas into the media.
Sources:
http://www.ajr.org/Article.asp?id=4623 (Don't Blame the Journalism)http://blog.press.org/?p=814 (Industry Downturn Spurs Gov't Push Back on Info)
http://query.nytimes.com/gst/fullpage.html?res=9404E6D7103DF937A35756C0A9629C8B63 (The Media Business: Newspaper Circulation Continues Decline Overall)
http://www.mediapost.com/publications/index.cfm?fa=Articles.showArticleHomePage&art_aid=92228 (Metro newspapers eliminate key sections)
http://www.usatoday.com/money/media/2006-05-08-newspaper-circulation_x.htm (Newspaper sales dip, but websites gain)
http://openrecords.wordpress.com/2008/09/15/why-the-decline-of-newspaper-readership-is-bad-part-ix/ (Why the decline of newspaper readership is bad)
Wednesday, October 1, 2008
Unrestricted freedom of press entails risk
California removes prior restraint in school newspapers,
Could this unrestricted freedom of press travel down windy path?
Unlimited freedom of speech in student newspapers is not a good idea, and the lack of censorship puts the school on dangerous grounds. The school risks letting the information in the newspapers create imminent threats to safety and even generate hypothetically harmful ideas, all in the good spirit of protecting the speakers’ speech first. Not to mention, schools will have to manage the risk of taking liability for tortious content printed in the school newspaper, making unlimited freedom even more hazardous.
In an effort to give school newspapers unlimited freedom of speech, Governor Arnold Schwarzenegger signed a bill on Sept. 28. This bill protects high school and college advisers from receiving administrative retaliation against students’ speech.1 As a result, school administrators in California have no right to prior review or prior restraint when dealing with school-sponsored student newspapers.
Proponents of this legislative would give accolades to the Governor for protecting the work environment for the staff members, especially college professors and high school journalism teachers. Moreover, students can breathe easier now that they can write as passionately as they want and not get in trouble as long as the Governor’s signature on the bill doesn’t smudge. In reality, the newspaper has multiple sections. The news pages tell the facts as plain as white wallpaper. The opinions sections throws in more seasoning and jargon to argue for or against the facts. Frankly, people have a right to use the press to deliver their message in whichever form they want.
Of course, the minimal responsibilities as student journalists are to be ethical and keep out the lewd or obscene writing. They must keep in mind their audience, but it isn’t their job to predict how much the audience can handle. The readers aren’t a captive audience. They can choose not to read the newspaper. After all, the First Amendment with regards to the freedom of speech, should protect the speakers’ right to express an idea above the recipients’ right not to be offended. Wait, a minute. There is no such thing as the right not to be offended. In a marketplace of ideas, one always risks getting offended. That’s just the trade-off for the plethora of freedoms that we privileged Americans all possess.
Moreover, here’s another support case for those who oppose prior review and restraint of school-sponsored newspapers. In the Novato Unified School District v. Smith case,2 a Latino students’ parents complained to the school that an article entitled “Immigration” was offensive. After the school sent home letters saying the editorial should not have been published for its “racially inflammatory statements,” a father and a high school student filed a lawsuit against the school saying they violated their First Amendment rights. This court held in favor of the father and student based on the idea that no matter how provocative a students' printed speech is, it can't be pulled because the article doesn't disrupting the operation of the school. The court wouldn't possibly favor crude speech. This is clearly creating dissent from an ethnic minority. These types of articles need more discretion in a diverse student population because some people do take personal offense. However, my argument supporting prior restraint loses in this court case. A key factor to remember is that speech can be as offensive as long as it doesn’t harm anyone and no one is at risk.
Now to rip apart the proponents’ fluff, I want to emphasize a couple key bullet points. The moment one gives over unlimited power without censorship to another, there may be self-serving interests involved in the second party. On Sept. 30, the California appeals court overturned a judge’s ruling to prevent The Orange County Register from writing a story about the trial, in which the newspaper was a defendant.3 Even though this paper reported on a true court case, there needs to be a line drawn between what is newsworthy and what is self-coverage. If a school-sponsored newspaper had to decide whether or not a story about its own paper would make it to press, there should be no debate: don’t be the news you report.4 Texas Christian University’s Daily Skiff ran a story about its own newspapers being stolen. What happens physically to the newspaper should be left out of news coverage. Newspapers should act as a mediator between the news and the people-- essentially, newspapers should be nameless. As an adviser in this position, he or she should at least make available a variety of stories that come from the students instead of fawning over the paper’s own life story. So if there’s going to be no censorship on school newspapers, at least try to aim for diversity in its stories.
Not everything should be published. Students who write about knowing a way to hack into the school’s computer system should have no right to appear on a school-sponsored paper. If it does, the school should have the full authority to issue criminal investigations, depending on the legality of the content being discussed. The administrators can even target the student writers for their stories and take legal action. People may argue that there’s no real freedom of the press if students feel restrained from writing juicy stories that school or State authorities will attack despite any meaningful message or forewarning that the articles may deliver. In the Justin J. Boucher v. School Board of the District of Greenfield case,5 Boucher wrote an article about the computer security vulnerabilities in his high school. He alluded to the bad password systems and encouraged other classmates to exploit the school’s computer security vulnerabilities as long as they didn’t damage anything within the mainframe computer system. This article was asking to be pulled, but no one took the initiative to do a prior review. Stories that lead students to believe that their school’s security system is fallible immediately feel that their privacy is at risk. This story may cause an unnecessary disturbance in the student body. To prevent students from getting ideas from creative stories such as this, the administration needs to review certain articles first. In issues that will immediately put the school in potential danger, the administrators knows to make the more rational call on whether or not the story will make it to press.
Sources:
1 Calif. passes journalism adviser protection bill http://www.splc.org/newsflash.asp?id=1817
2 Novato Unified School District v. Smith http://www.allbusiness.com/legal/trial-procedure-summary-judgment/11473083-1.html
3 Calif. appeals Court: Newspaper can cover own trial http://www.firstamendmentcenter.org/news.aspx?id=20624
4 Stacks of Skiffs found in dumpsters http://www.tcudailyskiff.com/home/index.cfm?event=displayArticle&ustory_id=f3d0c629-ec23-4e74-9e5c-0113555305890
5 Justin J. Boucher v. School Board of the School District of Greenfield
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=docket&no=973433
Could this unrestricted freedom of press travel down windy path?
Unlimited freedom of speech in student newspapers is not a good idea, and the lack of censorship puts the school on dangerous grounds. The school risks letting the information in the newspapers create imminent threats to safety and even generate hypothetically harmful ideas, all in the good spirit of protecting the speakers’ speech first. Not to mention, schools will have to manage the risk of taking liability for tortious content printed in the school newspaper, making unlimited freedom even more hazardous.
In an effort to give school newspapers unlimited freedom of speech, Governor Arnold Schwarzenegger signed a bill on Sept. 28. This bill protects high school and college advisers from receiving administrative retaliation against students’ speech.1 As a result, school administrators in California have no right to prior review or prior restraint when dealing with school-sponsored student newspapers.
Proponents of this legislative would give accolades to the Governor for protecting the work environment for the staff members, especially college professors and high school journalism teachers. Moreover, students can breathe easier now that they can write as passionately as they want and not get in trouble as long as the Governor’s signature on the bill doesn’t smudge. In reality, the newspaper has multiple sections. The news pages tell the facts as plain as white wallpaper. The opinions sections throws in more seasoning and jargon to argue for or against the facts. Frankly, people have a right to use the press to deliver their message in whichever form they want.
Of course, the minimal responsibilities as student journalists are to be ethical and keep out the lewd or obscene writing. They must keep in mind their audience, but it isn’t their job to predict how much the audience can handle. The readers aren’t a captive audience. They can choose not to read the newspaper. After all, the First Amendment with regards to the freedom of speech, should protect the speakers’ right to express an idea above the recipients’ right not to be offended. Wait, a minute. There is no such thing as the right not to be offended. In a marketplace of ideas, one always risks getting offended. That’s just the trade-off for the plethora of freedoms that we privileged Americans all possess.
Moreover, here’s another support case for those who oppose prior review and restraint of school-sponsored newspapers. In the Novato Unified School District v. Smith case,2 a Latino students’ parents complained to the school that an article entitled “Immigration” was offensive. After the school sent home letters saying the editorial should not have been published for its “racially inflammatory statements,” a father and a high school student filed a lawsuit against the school saying they violated their First Amendment rights. This court held in favor of the father and student based on the idea that no matter how provocative a students' printed speech is, it can't be pulled because the article doesn't disrupting the operation of the school. The court wouldn't possibly favor crude speech. This is clearly creating dissent from an ethnic minority. These types of articles need more discretion in a diverse student population because some people do take personal offense. However, my argument supporting prior restraint loses in this court case. A key factor to remember is that speech can be as offensive as long as it doesn’t harm anyone and no one is at risk.
Now to rip apart the proponents’ fluff, I want to emphasize a couple key bullet points. The moment one gives over unlimited power without censorship to another, there may be self-serving interests involved in the second party. On Sept. 30, the California appeals court overturned a judge’s ruling to prevent The Orange County Register from writing a story about the trial, in which the newspaper was a defendant.3 Even though this paper reported on a true court case, there needs to be a line drawn between what is newsworthy and what is self-coverage. If a school-sponsored newspaper had to decide whether or not a story about its own paper would make it to press, there should be no debate: don’t be the news you report.4 Texas Christian University’s Daily Skiff ran a story about its own newspapers being stolen. What happens physically to the newspaper should be left out of news coverage. Newspapers should act as a mediator between the news and the people-- essentially, newspapers should be nameless. As an adviser in this position, he or she should at least make available a variety of stories that come from the students instead of fawning over the paper’s own life story. So if there’s going to be no censorship on school newspapers, at least try to aim for diversity in its stories.
Not everything should be published. Students who write about knowing a way to hack into the school’s computer system should have no right to appear on a school-sponsored paper. If it does, the school should have the full authority to issue criminal investigations, depending on the legality of the content being discussed. The administrators can even target the student writers for their stories and take legal action. People may argue that there’s no real freedom of the press if students feel restrained from writing juicy stories that school or State authorities will attack despite any meaningful message or forewarning that the articles may deliver. In the Justin J. Boucher v. School Board of the District of Greenfield case,5 Boucher wrote an article about the computer security vulnerabilities in his high school. He alluded to the bad password systems and encouraged other classmates to exploit the school’s computer security vulnerabilities as long as they didn’t damage anything within the mainframe computer system. This article was asking to be pulled, but no one took the initiative to do a prior review. Stories that lead students to believe that their school’s security system is fallible immediately feel that their privacy is at risk. This story may cause an unnecessary disturbance in the student body. To prevent students from getting ideas from creative stories such as this, the administration needs to review certain articles first. In issues that will immediately put the school in potential danger, the administrators knows to make the more rational call on whether or not the story will make it to press.
Sources:
1 Calif. passes journalism adviser protection bill http://www.splc.org/newsflash.asp?id=1817
2 Novato Unified School District v. Smith http://www.allbusiness.com/legal/trial-procedure-summary-judgment/11473083-1.html
3 Calif. appeals Court: Newspaper can cover own trial http://www.firstamendmentcenter.org/news.aspx?id=20624
4 Stacks of Skiffs found in dumpsters http://www.tcudailyskiff.com/home/index.cfm?event=displayArticle&ustory_id=f3d0c629-ec23-4e74-9e5c-0113555305890
5 Justin J. Boucher v. School Board of the School District of Greenfield
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=docket&no=973433
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