The Theory of Our Constitution

Back in the 1950s, Bob Hope used to tell this joke.

An American was in the Soviet Union explaining to a Russian citizen how we have the greatest country in the world.
"In America," he said, "anyone can get on a train, go to Washington, go up to the White House, and announce that President Eisenhower is a fool."
The Russian responded."It's no different here. Anyone can get on a train, go to Moscow, go up the the Kremlin, and announce that President Eisenhower is a fool."

* * * * *

We begin at the beginning, with the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Justice Black looked at those words and famously said, "No law means no law."

I suppose he may have said that at one time or another, but the actual quote is from a concurring opinion in Smith v. California. It's worth quoting the whole passage.

I read "no law . . . abridging" to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly "beyond the reach" of federal power to abridge.

Oddly, Floyd Abrams doesn't quote that passage in The Soul of the First Amendment, his new book about the speech and press protections of the First Amendment. 

Nor does he quote Holmes, dissenting in Abrams v. United States:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.

But if Abrams doesn't quote Black or Holmes in this brief book, he channels them.

Here, he says, is how it works in the United States under the First Amendment.  At least, how it works now and how it has generally worked since somewhere in the middle of the last century. 

Speech is protected.  The press is protected.

The government doesn't get to tell you what you can say and what you can't.  The government doesn't get to decide who can speak and who can't.  The government can't prevent people from saying offensive things.  It doesn't get to decide that the New York Times can have a voice but Breitbart can't.  

Or the other way around.

It's legal - offensive and hateful and stupid, but legal - to spout racist claptrap and insist that the Holocaust didn't happen and it's too damn bad.

Truth is an absolute defense to defamation.

And corporations?  They really can spend their money on advertising to try and influence elections.

You may not like it.  You may prefer the greater privacy protections in Europe.  You may prefer to prevent speech you consider hateful.  You may think Citizens United was the worst, most wrong-headed decision the Supreme Court ever issued.  

And you may believe with every fiber of your being that Berkeley should prevent Ann Coulter from speaking there and that if Berkeley lets her in it would be proper to fire bomb the auditorium in order to shut her voice down.  Ulrich Baer, you may insist, is right when he claims in the Times that the remedy for bad speech is to stifle it, that it's only those who don't intuitively understand the harm of speech who believe that the remedy for bad speech is more speech.

But that's not our system.  Our system, as Abrams makes clear, is unique in rejecting every one of those things.  With the narrowest of exceptions (and still too many, some of us would argue), Hugo Black was right.  No law means no law.  The "spirit of the First Amendment," he says, is "its anticensorial soul." 

You're free to insist that he's wrong, of course, or that he should be.  You can speak out against free speech and the First Amendment as much as you like.  The First Amendment gives you that right. Maybe it would be better otherwise.  They think so everywhere else in the world, and maybe they're on to something.

Or maybe not.  Floyd Abrams thinks not.  Abrams is 80 years old.  He's been litigating these cases for decades.  And winning them.  

In The Soul of the First Amendment he tells the story of how "no law" came to mean something close to "no law."  He shows how it is that our approach to free speech really is unique.  And he explains, argues, why he thinks it's a good thing.

There are, of course, serious questions.  That you can speak doesn't necessarily mean that you should. In the book's final chapter he explores how "free speech should be responsibly exercised."  That's not a legal question, of course, and "[t]he First Amendment provides no answer to this question.  It never does."

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My thanks to Yale University Press for sending me a copy for this review.

"While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death"

He had no problem with eugenics.  He made that plain in Buck v. Bell when he explained that really, it's not just OK but basically desirable that we forcibly sterilize "defective persons" for the good of society.  Making the point, as he so often made his points, forcefully.

Three generations of imbeciles are enough.

He had no trouble finding, in Fox v. Washington, that there was no constitutional problem with prosecuting Fox for advocating nude swimming.

If the statute should be construed as going no farther than it is necessary to go in order to bring the defendant within it, there is no trouble with it.

And during a chance encounter on a train with Judge Learned Hand, when the judge tried to convince him that the Constitution demanded and good sense required toleration of dissent, he rejected the very notion.

As a believer in society's right to impose its will on the individual, he thought persecution of dissenters made perfect sense.  And as a former soldier who had taken up arms against his fellow countrymen, he was not afraid to follow that principle to what he thought was its logical, if shocking, conclusion. "You strike at the sacred right to kill the other fellow when he disagrees."

After all,

He disdained all constitutional rights.

Those last two inset quotes are from Thomas Healy describing Oliver Wendell Holmes, he of the quite spectacular moustache, in his book The Great Dissent: How Oliver Wendell Holmes Changed His Mind - and Changed the History of Free Speech in America. 

That may not be the Holmes you recall, the Holmes who wrote powerfully about free speech, who defended the rights of the workingman against a repressive view of constitutional liberty, who was an iconoclastic champion of progressive legislation.  But it is indeed the same Holmes.   And how he got from Point A (killing the fellow who disagrees) to Point B (the great advocate of free speech), well, that's the story Healy tells.

It begins with that conversation he had with Learned Hand, continues through the lobbying of Harold Laski, and Felix Frankfurter (before his time on the Supreme Court), and Zechariah Chafee.  And by Louis Brandeis (during his time on the Court) though Brandeis probably deserves more of a place than Healy gives him.

Ultimately, Healy suggests, it wasn't the lobbying so much that turned Holmes as the discovery of consequence.  Back in 1881, in The Common Law, Holmes had written

The life of the law has not been logic; it has been experience.

And so it proved for him.  

What seems, finally, to have made the change was not any of the arguments from Hand or Laski or Frankfurter or Chafee or Brandeis.  It wasn't an epiphany about the abstract importance of constitutional rights or the values of individual liberty against the interests of society.  (Buck v. Bell, after all, was 1927, 8 years after Holmes had his transformation from opponent of free speech to advocate.)  What changed Holmes was that he saw the harm that punishment for speech did to his friend (virtually his adopted son, Healy suggests, though he doesn't say that) Laski.

For what had been merely an abstract question for Holmes over the apst year was, suddenly, concrete and personal.  The face of free speech was no longer Eugene Debs, the dangerous socialist agitator.  It was his good friend Harold Laski, and Holmes's views shifted accordingly -- and dramatically.  He still did not have a theory of free speech that satisfied him, but he now delared himself willing to die for it, just as he had been been willing to die for the cause of the Union six decades earlier.

And so it came to pass that in 1919, just months after enthusiastically upholding the criminalization of speech that merely criticized, Holmes dissented.  The case was Abrams v. United States, and this time Holmes dissented.  He denied any change in attitude or position. Perhaps he even believed his denial.  But it was bullshit.  He completely reversed himself.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

The words ring.  And as Healy says, they led to an upheaval in First Amendment law.  (Though it's a constant fight, still, as all constitutional rights are always in jeopardy.)

I need to shift gears for a minute.  As I said, the words ring.  The man could write.  But they're also, I think, wrong.  Not wrong insofar as they assert that the Constitution protects free speech.  Wrong, rather, insofar as they claim that the idea is that "the best test of truth is the power of the thought to get itself accepted in the competition of the market" or that such is "the theory of our Constitution."  I don't buy it.  

It's Mark Twain or maybe Winston Churchill or perhaps C.H. Spurgeon or someone else or all of them who said that "a lie gets halfway around the world before truth has time to put its pants [or britches or boots or whatever] on."  The idea that truth wins out because it's just got some basic force, seems to me self-evidently false.  And, in any event, how would we know?

The virtue of free speech, and the Constitutional need for it, is that only if we can speak freely can we truly think freely. That's a virtue in itself.  And in a republican system where ideas are to be debated and voted on, there must be room for that debate.  Not because the result will be right, but because it's the only way a public decision can be made.  The people decide, even if they decide stupidly.  But what they can't decide is to do away with the right to fuss and carry on.   That's "the theory of our Constitution."

OK, that's me, not Holmes.  For Holmes?  Read Healy's book.  He's got a great story to tell, and if he's more infatuated with Holmes than I am?  Hell, he wrote a book about the guy.  And it's a dandy book.

Like Evan Mandery in A Wild Justice, Healy provides legal history and analysis through storytelling and anecdote.  It's fun.  It's interesting.  And it's important.

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My thanks to Metropolitan Books for sending me a copy to review.  

Free Speech - Sort Of

I wasn't going to write about the Supreme Court's decision in Snyder v. Phelps.

I figured there was really nothing much for me to add.  I assumed that many of my brothers and sisters of the blawg would offer generalized praise for the decision, coupled with reminders that even the most evil speech (which Westboro's is) by the most repulsive folks is (which Westboro's are) is entitled to First Amendment protection.  (It doesn't deserve that protection; it gets it because, like clemency, it's about us not about them.)

And, of course, a number have.  (See, for instance, Turley, Mayer, and of course and especially Randazza.)  And then Scott Greenfield jumped in.

It's not that Scott disagrees with the general view.  Yes, the Court got it right, he says.  But we should be grateful to Alito for dissenting as a reminder that - feh.  Here's what Scott wrote.

And the lone dissenter, Sam Alito, knowing full well that his position would neither change the direction of First Amendment protections nor satisfy the need to fashion a means by which the most disgusting and offensive among us could be shut down without touching the right of anyone else, took the bullet for the Court.  

He said what needed to be said, that what Fred Phelps did to Albert Snyder was disgusting, a disgrace, a blight upon the Americans and humanity.  He said so knowing that his would be the lone voice, of no legal consequence but sufficient that Fred Phelps didn't walk away thinking that the magic space zombie jew really loved him.  Fred Phelps may have won, but let him always fear the sound of a Ford F-150 revving its engine behind him.

And for his, we owe Sam Alito.

It's true, sadly, that while the majority opinion by the Justice with the self-satisfied smirk that he probably mistakes for a smile (that's Roberts) lays out in detail and with appreciation the powerful First Amendment issues in the case, its legalistic approach does little to capture the depth of repulsion we all should feel (and hope that Roberts and the rest feel) at what Dahlia Lithwick called the "Phelps Family Roadshow of Bilious Bigotry."  And it's fine that someone picked up the slack to make the point.

But Alito's dissent is a problem.  Not because he turns what should have been an easy 9-zip decision into a still overwhelming majority 8-1.  But because it reminds us that Alito really does think there's an exception to the First Amendment for the odious.

This isn't the first time Alito has been alone in staking out an offensiveness exception to the First Amendment's protection of free speech.  He alone believed (see United States v. Stevens) that First Amendment protection could be denied to depictions of animal cruelty.  Here's how Elie Mystal put it.

Call it Free Speech 101. The hard part about the First Amendment is that you have to allow people to say all manner of annoying, vulgar, and inappropriate things, at the wrong times.

Not that Justice Samuel Alito thinks so. Justice Alito was the lone dissenter in this case. He was also the lone dissenter in the Stevens case, in which the Court overturned a ban on animal crush videos on First Amendment grounds.  But he voted with the majority in Citizens United.

(I left in that last line about Citizens United because it finished Mystal's paragraph and it's where he was taking his post.  It's really beside the point here.)

OK, maybe Alito is alone on an otherwise free-speech friendly court.  But today's lone dissenter can be tomorrow's majority voice.  (See Scalia, Antonin.)  And it's never good to have a guy on the Court who just doesn't get it.

Especially when he's not altogether alone.

Because while the decision was 8-1, the majority was not.  Or at least not entirely.

Stephen Breyer, whose view of most Constitutional rights is, shall we say quirky (we shall), joined the majority opinion but felt constrained to write a concurring opinion pointing out that the First Amendment really isn't all that sweeping.

Westboro’s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. To would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court’s opinion, it holds no more.

Forget all that broad language.  The Phelps family has First Amendment protection solely because this is a fact-bound opinion and the offensive folks walked a very fine line with great care.  Oh, and of course, it's only because they were picketing.  And on an acceptable subject.

The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

Breyer's trod this path before, most tellingly in an interview with George Stephanopolis where he explained (misquoting Holmes) that problematic speech (he was talking about planned Quran burning by another reverend lunatic) really isn't protected.  Here's part of what I wrote at the time adding a word I'd left out and quoting Stephanopolis.

“Holmes said it doesn’t mean you can shout 'fire' in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”

But, but, but (I'm sputtering here because that makes me so mad).

First, he's got Holmes wrong - and importantly wrong.  Here's the actual quote from Schenck v. United States.

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

See the difference?

Holmes said that you can shout "fire" in a crowded theater.  In fact, if there is a fire, maybe you should.  But you can't (Holmes said), shout "fire" in that theater if it's not true and then cause "a panic."  There's no protection, that is, from causing great harm by a lie that you should have known would cause great harm.  

But that's not what Breyer seems to see.  He sees no protection for speech which might result in harm.  And boy is that ever something different.

And damned scary.

It was.  It is.  They are.  Both of them.  Breyer and Alito.

Nat Hentoff wrote a book called Free Speech for Me But Not for Thee.  He was, rightly, critical of that attitude.  There's a couple of guys in Washington ought to read it.

 

Disclosure:  I represented Shirley Phelps-Roper in a partially successful lawsuit challenging Ohio's funeral-protest law as amended precisely to keep the Phelps clan out of the state..

Indiana Wants To Be Ohio

Congress shall make no law . . . abridging the freedom of speech, or of the press.

That's from the First Amendment, and by now it's well settled that it isn't just Congress that's constrained by that "shall make no law" thing.   It's all of government: federal, state, local; executive branch, legislative branch, judicial branch.

Oh, wait.  The judicial branch is just fine with making laws abridging those freedoms.

(Yeah, I know; there are actual laws enacted by Congress and state legislatures that abridge freedom of speech and the press.  Lots of them, in fact.  Nobody who had any say in the matter except Hugo Black ever really thought that "no law" meant no law, and even the good justice didn't really believe it.  But for the moment, I don't care.  The statement is close enough, and this is all just the set up for what I want to talk about.  Ignore that sentence if the detail bothers you.)

Where was I?  Right, the judicial branch.

See, we tend to like free speech as an abstract concept.  It sounds good and noble that the government doesn't get to control what you say.  But the reality is that we mostly don't like free speech all that much.  Free speech absolutist Nat Hentoff put it in a book title.

Free Speech for Me--But Not for Thee

There's actually a sub-title, too, but it's of no moment here.

But back to the judicial branch.  Sigh.

I've made fairly regular mention here of the Mark Gardner Rule.  I discussed it most fully in this post.  The essence of the Rule is that Ohio lawyers (it's an Ohio Rule, made up by the Ohio Supreme Court) cannot criticize the Ohio judiciary.  The court didn't phrase it that way, of course.  But that's essentially what the court said in Mark's case.  Fortunately, they don't apply the rule as rigidly as that makes it sound.  But there's no reason to think they won't if it suits them.

Mark's problem was that he got pissed off at what he viewed as an intellectually dishonest appellate decision.  Then he told the court, in some detail and with no tact whatsoever, what he thought of the decision.  "Foul," cried disciplinary counsel.  "Very foul," said the Ohio Supremes.

Lawyers can, of course, speak the truth about the courts and about judges even if the truth is negative, the court said.  The court also said that truth about courts and judges is what reasonable lawyers believe to be true, regardless of objective fact.  (The court left out that last phrase.)  And because reasonable lawyers believe courts and judges above reproach, anything negative a lawyer says is false and the lawyer can be punished for it.

If you head due west from Ohio, you're going to find yourself in Indiana.  Should you be there in the next 6 months and need a lawyer, don't expect to be hiring Patrick K. Rocchio who didn't know Indiana had the Mark Gardner Rule.

Actually, maybe they don't.  I mean, there's no question that the Indiana Supreme Court slapped Rocchio down hard for saying intemperate stuff, but unlike the Ohio Supreme Court, they didn't articulate a bizarre constitutional standard to justify their action.  They just did it.

See, Rocchio is an attorney in both Michigan and Indiana, mostly practicing in Michigan.  Rocchio was charged in a 2 count disciplinary complaint in Indiana.  In the first count, he was charged with sending a solicitation letter to D.W., an accident victim, without writing on the letter and the envelope "Advertising Material."*  In the second count, Roccio was charged with not mentioning on his website that he had allowed his Indiana license to become inactive.**

These are violations of Indiana's disciplinary rules, but minor ones.  The Supreme Court opinion made that clear.

We find that Respondent, Patrick K. Rocchio, engaged in attorney misconduct that, standing alone, would warrant a sanction in the lowest range.
. . .
This Court has imposed a public reprimand on a number of attorneys who have violated the rules on written communications, e.g., Matter of Benkie, 892 N.E.2d 1237 (Ind. 2008); Matter of Huelskamp, 740 N.E.2d 846 (Ind. 2000), and in some cases an even lesser sanction. Standing alone, that would be our assessment of the sanction warranted here. The addition of the website violation would not warrant an increased sanction.

But the "misconduct" didn't stand alone.

Respondent‟s actions throughout the disciplinary process constitute substantial aggravating circumstances requiring a concomitant increase in sanction.

Ooops.  Here's the Mark Gardner stuff.

Respondent‟s Brief in Support of Petition for Review includes the following:
       It must be stated, at the risk of offending others that anyone who has not suffered a full frontal cranial lobotomy knows that the words published on a Michigan lawyer's law office internet describing his professional narrative, in-cluding his licensing credentials, is not the practice of law in the State of Indiana.
       . . . .
       This rather bizarre and foolish disciplinary process regarding my alleged attorney misconduct long ago moved away from the focus upon the misdeeds de-scribed in the Verified Complaint.
       This proceeding is about behavior and protocol; what to say and how to behave in the presence of the supreme monarchy, or in this situation, the repre-sentatives of the Indiana Supreme Court who alone decide what is and what is not attorney misconduct subject to discipline.
        . . . .
       My experience with the Indiana attorney disciplinary system is a hideous aberration of justice: a Disciplinary Commission and staff attorney with a self-image of pompous arrogance; a hearing officer who permits herself to be used as a rubber stamp . . . .

         Similar examples can be found on nearly every page of Respondent‟s briefs to this Court and to the hearing officer, as well as in his correspondence to counsel for the Commission and in his testimony before the hearing officer. The hearing officer noted Respondent‟s invectives against the Commission's former executive secretary ("a first-class ass"), the Commission ("soft and lazy"), the disciplinary process (“a modern day version of the Star Chamber, a Salem witch hunt, or a Spanish Inquisition”), and this Court‟s disciplinary rules (“frivolous and antiquated,” “rules of behavior conceived over a cigar and brandy . . . during the late Victorian Era by a group of self-impressed lawyers”), as well as his repeated use of caustic terminology (e.g., “despicable,” “deceptive and ridiculous,” “naked stupidity,” “cutesy and evasive”). The Respondent also engages in personal attacks on the hearing officer, calling her “sadistic” and displaying “a disappointing level of ignorance, arrogance, and stupidity.” We concur with the hearing officer‟s finding that “Respondent‟s inflammatory statements were not spontaneous remarks made in the heat of the moment, but were his planned, intentional, oft-repeated comments.”
         In addition, Respondent is totally non-repentant. He makes clear that he believes this Court's rules governing lawyer employment solicitation and this entire proceeding are silly. In an email to Commission counsel, he stated that if he had a chance, he would again send the letter to D.W. Near the end of this testimony before the hearing officer, he went into great detail describing how he would essentially do it all over again, at least for a Michigan resident. He stated: "I will not misrepresent the content of my letter by trivializing it with the notation 'Advertising Material,'" and "I will be thankful that Michigan does not attempt to impose frivolous and antiquated regulatory restrictions upon its licensed attorneys . . . ."

I get it that you're supposed to at least seem remorseful.  Any even marginally competent lawyer would have told Rocchio that expressing disdain for the disciplinary process would almost certainly come back to bite him.  Really, he shouldn't have done it, shouldn't have said it.  Even if it's true.  Because his statements may be constitutionally protected.

Except he's a lawyer.

So they're not.

In re Rocchio

Which means he can't say that the court and the judges and the legal system all suck.

I, of course, would never say such things.

Here's Pete Seeger singing Tom Paxton's "What Did You Learn In School Today?"

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*Disciplinary rules routinely assume that members of the public are regularly fooled by advertisements that don't state they are advertisements into hiring lawyers because of what the advertisements say.  Presumably, if the imbecile public were told the lawyer who sent them an ad wanted to be hired, they would hire someone else.  Or something.

**Note that he wasn't charged with representing or even trying to represent anyone in Indiana while his license there was inactive, just in not mentioning on his website that it was inactive.  For the record, my Texas license is inactive.

H/T Legal Profession Blog

The South Shall Rise Again

Yeah, I know.  This is a post-racial society now.  

Tell that to the people still happily caught up in their yearning for the happy days of Jim Crow or, better yet, the antebellum South when men were men, women were chattel and blacks were slaves.  You know, the good ol' days.

Which brings us to Glenn McConnell.  According to Yvonne Wenger in the HeraldOnline, McConnell 

doesn't want to live his life worrying about being politically correct.

He's succeeding admirably.

The "white Charleston Republican and president pro tem of the Senate" is "widely considered" to be the "most powerful politician" in South Carolina.  And so, when he posed for this picture

,

(McConnell's the white guy in the Confederate army uniform) as part of "A Southern Experience," put on by the South Carolina Federation of Republican Women,well, political correctness isn't likely to be his problem.

OK, this may not be entirely fair.  

McConnell said the event was conducted in a respectful, historical context. Re-enactments include people of both black and white races and draw people from all across the country who want to learn more about history, he said.
"Tell me what is offensive about having the differing parts of the culture there? What are we going to try and do in America, sanitize history?" McConnell said from his office in the Statehouse. His office is decorated with memorabilia from his re-enactments of the Civil War.
"These folks didn't ask me to take this picture or participate in this skit because they were trying to make some political statement. This picture says, if anything, how we cross the culture lines."

And after all, Frank and Sharon Murray were paid to be in the picture, unlike real slaves who would have been flogged to be in it.

On the other hand, if McConnell really wants someone to tell him what's offensive about this, he just has to listen to Dot Scott.  She's head of the Charleston branch of the NAACP, and she gets it even if McConnell doesn't.

[W]hen she looks at the picture she sees "the master standing in the middle with the two slaves standing at his side." And what that says to her is, "This is where you came from and this is where you are. That's the last thing we need to be reminded of."
"I think it's disgraceful," said Scott, who is black. "It's like he has this playground where he can play dress-up and think nothing of how offensive it is for folks whose ancestors actually lived in the era."

Look, I'm no fan of political correctness for its own sake.  And I still think Bette Middler got it exactly right when she complained that

Everyone's just too fucking sensitive.

But you know, if you're going to celebrate the charms of slavery, well you ought to admit it.  Embrace your inner racist.

If, on the other hand, you really can't figure out why that picture's offensive, maybe you should reconsider whether you have any business being a legislator.  

I've Looked at Trials from Both Sides Now

In a college philosophy course, I once wrote a paper called something like "The Categorical Imperative meets the Teleological Suspension of the Ethical." The idea is that sometimes absolutes conflict. My resolution, as I recall (this was decades ago) was built around Coleridge's recognition that some literature requires and evokes a "willing suspension of disbelief."*

All of this is by way of introduction to a knotty problem in Constitutional Law working its way out, at the moment, in the Ohio courts. I should add that, as the title of this post suggests, I have been, professionally, on both sides of the issue.

So here's the thing.

Part One

The Sixth Amendment says, in part,

[T]he accused shall enjoy the right to a speedy and public trial.

The First Amendment, of course, guarantees a free press.

Back in 1947, in Craig v. Harney, the Supreme Court explained.

A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. And we can see no difference though the conduct of the attorneys, of the jury, or even of the judge himself, may have reflected on the court. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.

So you can't keep the press out of a trial, and you can't prevent the press from reporting on what happens at a trial. That's settled law.

And, more broadly, you can't tell the press what they can't publish. That's a prior restraint and except for, say, reporting on troop movements in time of war, it's forbidden (see, for instance, New York Times Co. v. United States).

Part Two

Trials aren't supposed to be circuses, but the press can turn them into just that. Forget OJ. Take a look at the Sam Sheppard case (which inspired The Fugitive).

Sheppard was tried for the murder of his wife amid what the Supreme Court described (and spelled out in detail) as a "carnival atmosphere" where "bedlam reigned."

The fact is that bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard. At a temporary table within a few feet of the jury box and counsel table sat some 20 reporters staring at Sheppard and taking notes. The erection of a press table for reporters inside the bar is unprecedented. The bar of the court is reserved for counsel, providing them a safe place in which to keep papers and exhibits, and to confer privately with client and co-counsel. It is designed to protect the witness and the jury from any distractions, intrusions or influences, and to permit bench discussions of the judge's rulings away from the hearing of the public and the jury. Having assigned almost all of the available seats in the courtroom to the news media the judge lost his ability to supervise that environment. The movement of the reporters in and out of the courtroom caused frequent confusion and disruption of the trial. And the record reveals constant commotion within the bar. Moreover, the judge gave the throng of newsmen gathered in the corridors of the courthouse absolute free rein. Participants in the trial, including the jury, were forced to run a gantlet of reporters and photographers each time they entered or left the courtroom.

The effect, the Court concluded, was that Sheppard was denied his right to a fair trial.

Part Three

There's the core conflict. The press has a right to report, but the defendant has a right to a fair trial. And what the press does can interfere with that right.

In its decision in Sheppard, the Court took the trial judge to task for not controlling his courtroom.

The carnival atmosphere at trial could easily have been avoided since the courtroom and courthouse premises are subject to the control of the court. As we stressed in Estes, the presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged. Bearing in mind the massive pretrial publicity, the judge should have adopted stricter rules governing the use of the courtroom by newsmen, as Sheppard's counsel requested. The number of reporters in the courtroom itself could have been limited at the first sign that their presence would disrupt the trial. They certainly should not have been placed inside the bar. Furthermore, the judge should have more closely regulated the conduct of newsmen in the courtroom. For instance, the judge belatedly asked them not to handle and photograph trial exhibits lying on the counsel table during recesses.

Secondly, the court should have insulated the witnesses. All of the newspapers and radio stations apparently interviewed prospective witnesses at will, and in many instances disclosed their testimony. A typical example was the publication of numerous statements by Susan Hayes, before her appearance in court, regarding her love affair with Sheppard. Although the witnesses were barred from the courtroom during the trial the full verbatim testimony was available to them in the press. This completely nullified the judge's imposition of the rule.

Thirdly, the court should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides. Much of the information thus disclosed was inaccurate, leading to groundless rumors and confusion. That the judge was aware of his responsibility in this respect may be seen from his warning to Steve Sheppard, the accused's brother, who had apparently made public statements in an attempt to discredit testimony for the prosecution. . . .

(I removed footnotes and citations.)

Ultimately, it's the court's job to figure out a way to accomodate the press but protect the right to fair trial. And there are ways to do it.

From the cases coming here we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.

That's all nice in theory. What about practice?

Practice is Henry County, Ohio.

Part Four

Henry County is where Jayme Schwenkmeyer and David Knepley face trial on involuntary manslaughter and child endangerment. They're to be tried separately in the small county courthouse. All that's simple enough. It got messy, though, when the judge, Keith P. Muehlfeld, tried to figure out a way to avoid having the publicity from the first trial taint the second jury.

What he came up with is a plan to gag the press. It can cover the first trial, he said, but it can't report on it until after the jury is selected for the second trial.

IT IS ORDERED, ADJUDGED AND DECREED that members of the print and broadcast media shall be permitted access to the tirial proceedings in Case number 08CR0033, State v. Schwenkmeyer pursuant to Superintendence Rule 12, HOWEVER, any and all print or broadcast media shall be PROHIBITED from the published or broadcast reporting of such trial proceedings until a jury is impaneled for the trial in State v. Knepley.

IT IS FURTHER ORDERED that all those persons including attorneys, the parties, representatives or witnesses intended to be called by the parties or any other persons participating in or associated with Case number 08CR0033, State v. Schwenkmeyer or State v. Knepley shall be prohibited from making any extrajudicial statements to the print or broadcast media or otherwise which would have a substantial likelihood of prejudicing the trial proceedings in either case.

That's a prior restraint, and like I said, it's forbidden.

So what to do? The judge says he has no other way to secure a fair trial for Kneply, and that's clearly his obligation. But he's also obliged to accomodate the press. So far, he's refused to bend.

Wednesday of last week, with the trial due to begin Monday, the Toledo Blade took the judge to the Ohio Supreme Court, laying out the facts and the law and asking for an order directing the judge to let the press do its job. Thursday, the court issued a temporary stay of the order until it could fully review the case - in a couple of months. Friday, Judge Muehlfeld delayed both trials until after the supreme court tells him what to do.

Part Five

There are, of course, things the judge can do. Here are a few.

• He can hold the trials together, with two juries that get shuffled in and out of the courtroom when things that one or another can't hear get said. It's clumsy, but it's been done plenty of times.
• He can move one (or both) of the trials to another county where there won't be pervasive publicity.
• He can get a visiting judge to hear one case while he hears another and do the trials separately but simultaneously.
• He can impanel the two juries and forcefully admonish the one for the second trial - better still, sequester it - so that it won't be tainted.

None of these is ideal. That's the problem when rights bump into each other. But the Constitution is the Constitution.

Both defendants have an absolute, overriding right to trials with juries untainted by prejudicial publicity. As a practical matter, that's may be impossible to achieve, and the proper result then would be to dismiss the charges. But the charges won't be dismissed over it, and some accomodation is necessary.

The media have an absolute, overriding right to report the news - including the news of the trial, which Muehlfeld's order makes (ironically) particularly newsworthy. They can be somewhat reined in, but they can't be restrained.

Part VI - The Conclusion

But see, here's the thing. What we've been looking at is built on the assumption that Constitutional rights are equal. That's what leads to the Categorical Imperative idea that you must always obey all of them. The reality is that you can't - and probably shouldn't.

If Abraham's obligation not to kill Isaac were as great as his duty to do whatever his god told him, he'd have been in a literally impossible situation where his obligation would have been to both kill Isaac and not kill him. Not an option. Abraham chose. Kierkegaard justifies the choice by concluding that Abraham's duty to his god was greater than his duty to his son. Right or wrong (and Biblically, at least, that seems right), it's a solution.

The conflict in Henry County is less stark, certainly. In theory, at least, an unrestrained press need not conflict with a fair trial. But the reality is that it can. And none of the alternatives fully solves the problem.

It's understandable, of course, that the Blade favors a solution that elevates the First Amendment. It's far from clear that's the right solution, though. In fact, if you think of what Judge Muehlfeld cooked up not as a prior restraint but, rather, a time/place/manner restriction, it's clearly permissible. The judge isn't prohibiting the media from attending the first trial or from reporting on it. He's just restricting when they can speak to a time when it will not interfere with another fundamental right: The right to a fair trial.

Good for him.




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*The "Categorical Imperative" is Immanuel Kant's description of absolute, a priori moral duty as determined through reason as set forth in The Groundwork for the Metaphysics of Morals and other works. The "Teleological Suspension of the Ethical" is Søren Kierkegaard's explanation, from Fear and Trembling, of how Abraham could be willing to sacrifice Isaac and how that could be a morally acceptable thing to do. The term, "willing suspension of disbelief," is from Chapter IV of the Biographia Literaria where Coleridge explains how he and Wordsworth came to write Lyrical Ballads.

In this idea originated the plan of the 'Lyrical Ballads'; in which it was agreed, that my endeavours should be directed to persons and characters supernatural, or at least romantic, yet so as to transfer from our inward nature a human interest and a semblance of truth sufficient to procure for these shadows of imagination that willing suspension of disbelief for the moment, which constitutes poetic faith.

Wordsworth, Coleridge said, would take a different approach.

Braving The Inferno

Despite Justice Black's declaration that "No law means no law," the Constitution's protection of free speech is not, and never has been absolute.

First, it applies only to the government. Home Depot can, without violating that proscription (or the one about the free exercise of religion), fire an employee for wearing a pin that says "One Nation Under God" on his uniform because Home Depot is not the government. (Neither is Goldman Sachs, by the way, though Mike at Crimes & Federalism might want to argue the point.)

Second, even with the government it's not total. Obscenity isn't covered. Neither is child pornography. Fighting words can be banned. The Supreme Court will be deciding soon whether distributing photographic depictions of violence against animals can be prosecuted.

But you know, some of us believe in free speech even when the Constitution doesn't apply. It's not that I think truth will win out in the metaphorical marketplace of ideas. I've never been convinced of that. It is, rather, that I think the philosophical agora is in itself a good thing. If we can't speak freely, we can't think freely. If we can't think freely, we have no freedom at all.

The First Amendment wasn't placed first for a reason. (In fact, it wasn't placed first; it just ended up there.) But it's location is appropriate.

The problem is that free speech is troublesome. Intentional provacateur Stanley Fish assembled a collection of his essays under the title There's No Such Thing As Free Speech: And It's a Good Thing, Too. That's about as plain a statement of the problem as there is. Free speech is dangerous.

I wrote the other day about the thought police. I wrote earlier about the craven and dishonest (literally, intellectually, and morally) decision by Yale University Press to publish Jytte Klausen’s The Cartoons That Shook the World about the depictions of the Prophet Muhammad published by a Danish newspaper in 2005 and the responses to them - but to leave out the cartoons. That last continues to rankle. If we cannot look to the academy and its press to be forthright in defense of the open discussion of ideas, where can we look?

The answer, it seems (and thanks to Eugene Volokh for pointing it out), is to another university. What Yale will not do, Duke will. The aptly named Voltaire Press has now published Muhammad: The "Banned" Images. It's a picture book containing those 12 cartoons and apparently (I haven't got my copy yet) another 19 images of Muhammad, with commentary, and a Statement of Principle advocating not the content of the book but it's idea and signed by a dozen individuals and organizations. (I'm bitter that they didn't ask me to sign.)

This is from the Introduction:

Muhammad: The "Banned" Images is a "picture book" — or errata to the bowdlerized version of Klausen's book as published by Yale University Press. It is of course more than that. It is a statement of defiance against censors, terror-mongers, and their Western appeasers. It is a rallying cry for free speech, freedom of the press, and for open scholarship unfettered by fear.

And this is the Statement of Principle.

Free Expression at Risk, at Yale and Elsewhere

A number of recent incidents suggest that our long-standing commitment to the free exchange of ideas is in peril of falling victim to a spreading fear of violence. Not only have exhibitions been closed and performances cancelled in response to real threats, but the mere possibility that someone, somewhere, might respond with violence has been advanced to justify suppressing words and images, as in the recent decision of Yale University to remove all images of Muhammad from Jytte Klausen’s book, The Cartoons that Shook the World.

Violence against those who create and disseminate controversial words and images is a staple of human history. But in the recent past, at least in Western liberal democracies, commitment to free speech has usually trumped fears of violence. Indeed, as late as 1989, Salman Rushdie’s Satanic Verses continued to be published, sold, and read in the face of a fatwa against its author and in the face of the murder and attempted murder of its translators and publishers. In 1998, the Manhattan Theater Club received threats protesting the production of Terrence McNally’s play Corpus Christi, on the ground that it was offensive to Catholics. After initially canceling the play, MTC reversed its decision in response to widespread concerns about free speech, and the play was performed without incident.

There are signs, however, that the commitment to free speech has become eroded by fears of violence. Historical events, especially the attacks of September 2001 and subsequent bombings in Madrid and London, have contributed to this process by bringing terrorist violence to the heart of liberal democracies. Other events, like the 2004 murder of Dutch film director Theo Van Gogh in apparent protest against his film Submission, and the threats against Hirsi Ali, who wrote the script and provided the voice-over for the film, demonstrated how vulnerable artists and intellectuals can be just for voicing controversial ideas. Under such threats, the resolve to uphold freedom of speech has proved to be lamentably weak: in the same year as Van Gogh’s murder, Behzti, a play written by a British Sikh playwright, was cancelled days after violence erupted among protesters in Birmingham, England on opening night.

In response to rising concerns about fear-induced self-censorship, in 2005 the Danish newspaper Jyllands-Posten published an article, “The Face of Muhammad,” which included twelve cartoon images. The cartoons became the focus of a series of violent political rallies in the Middle East in February 2006 and a subject of worldwide debate pitching free speech against “cultural sensitivity.”

For all the prominence of Islam in such debates, threats of violence against words and images are not the sole province of religious extremists. In 2005, a politically controversial professor’s scheduled speech at Hamilton College in Clinton, NY was cancelled in response to alleged threats of violence. In 2008, the San Francisco Art Institute closed a controversial video exhibition in response to threats of violence against faculty members by animal rights activists. Later that year, the University of Nebraska-Lincoln canceled a speech by former Weatherman and education theorist William Ayers, citing security concerns.

The possibility of giving offense and provoking violence has entered the imagination of curators, publishers and the public at large, generating more and more incidents of preemptive self-censorship: in 2006, for instance, London’s Whitechapel Gallery declared twelve works by Surrealist master Hans Bellmer too dangerous to exhibit because of fears that the sexual overtones would be offensive to the large Muslim population in the area; and publisher Random House canceled the 2008 publication of Sherry Jones’ The Jewel of Medina because “it could incite acts of violence.” The suppression of images in Jytte Klausen’s book is the latest, but not likely to be the last in the series of such incidents.

Words and images exist in complex socio-political contexts. Suppressing controversial expression cannot erase the underlying social tensions that create the conditions for violence to begin with, but it does create a climate that chills and eventually corrupts the fundamental values of liberal democracy.

A Call to Action

The incident at Yale provides an opportunity to re-examine our commitment to free expression. When an academic institution of such standing asserts the need to suppress scholarly work because of a theoretical possibility of violence somewhere in the world, it grants legitimacy to censorship and casts serious doubt on their, and our, commitment to freedom of expression in general, and academic freedom in particular.

The failure to stand up for free expression emboldens those who would attack and undermine it. It is time for colleges and universities in particular to exercise moral and intellectual leadership. It is incumbent on those responsible for the education of the next generation of leaders to stand up for certain basic principles: that the free exchange of ideas is essential to liberal democracy; that each person is entitled to hold and express his or her own views without fear of bodily harm; and that the suppression of ideas is a form of repression used by authoritarian regimes around the world to control and dehumanize their citizens and squelch opposition.

To paraphrase Ben Franklin, those who would give up essential liberty to purchase a little temporary safety, will get neither liberty nor safety.

As I said, I wasn't offered the opportunity to sign that statement before it was published. But I would have. Happily.