Free Speech – Page 2 – Sheila Kennedy

Just WOW…

It appears that our fearless (okay, feckless) lawmakers have identified a dire threat to America and its children–librarians. The Washington Post recently reported on one of the current allegations–this one by Senator Mike Lee of Utah–

“The goal is to sexualize children — to provide minors with sexually explicit material … and then hide this content from the parents.”

The American Library Association is facing a partisan firefight unlike anything in its almost 150-year history. The once-uncontroversial organization, which says it is the world’s largest and oldest library association and which provides funding, training and tools to most of the country’s 123,000 libraries, has become entangled in the education culture wars — the raging debates over what and how to teach about race, sex and gender — culminating in Tuesday’s Senatorial name-check.

Lee isn’t alone. The increasingly insane Right is intent upon painting the ALA as a defender of pornographic literature for children. MAGA warriors insist that the nation’s libraries, including school libraries, are filled with sexually explicit, inappropriate texts.

Attacks on libraries are part and parcel of what Isaac Asimov called the “cult of ignorance,” a phenomenon that we see in contemporary dismissals of expertise as “elitism”and the cyclical eruptions of anti-intellectualism in the United States. Asimov’s famous quote probably says it best:

There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that “my ignorance is just as good as your knowledge.”

America’s libraries are our intellectual gatekeepers, safeguarding our ability to access practical information as well as hard-won wisdom that has been built up over centuries. Attacking them is an attack on human intellectual progress–a declaration that, as Asimov aptly framed it, ignorance is just as good as knowledge.

We’ve been here before. In a speech in 2014, I argued that libraries as we know them are important protectors of what I call “the American Idea.” I spent six years as Executive Director of the Indiana Civil Liberties Union, and of all the lessons I learned during that time, the most profound was this: the future of western liberal democracy rests on the preservation of intellectual freedom.

That preservation, of course, is the library’s mission.

America’s Constitution is grounded in the Enlightenment concept of the individual as a rights-bearing, autonomous being. That concept is integral to our legal system; it is the foundation upon which our forbears erected the Bill of Rights. The Founders envisioned the good society as one composed of morally independent citizens whose rights in certain important circumstances “trumped” both the dictates of the state and the desires of the majority.….The First Amendment is really an integrated whole, protecting our individual right to receive and disseminate information and ideas, to consider arguments and theories, to form our own beliefs and craft our own consciences. It answers the fundamental social question– who shall decide? — by vesting that authority in each individual, subject to and consistent with the equal rights of others.

Implicit in the First Amendment is the legal system’s concept of personal responsibility, the University’s commitment to academic freedom, the moral authority of the clergy, the independence of the media, and the legitimacy of the political process.

That exercise of personal responsibility requires untrammeled access to information. For that matter, protection of civil liberties of every kind depends upon and requires intellectual freedom.

As I noted on this site back in April, the culture warriors out to terrorize Marian the Librarian are seeing considerable success. In an Urban Library Trauma study conducted in 2022, more than two-thirds of respondents reported encountering violent or aggressive behavior from patrons at their library.

Groups such as Moms for Liberty, No Left Turn in Education and Parents Defending Education aren’t the only ones fighting to remove books by Black and LGBTQ+ authors. Proud Boys have taken to storming into Drag Queen Story Hour events, for instance, causing serious fear for patrons and librarians.

Lest we give these censors the benefit of the doubt, thinking they are identifying mostly trashy books, it’s instructive to consult the AIA’s annual list of the most frequently challenged books. They include Harper Lee’s To Kill a Mockingbird, John Steinbeck’s Of Mice and Men, and Toni Morrison’s The Bluest Eye.

Challenges are overwhelmingly aimed at books by or about LGBTQ+ people, and books critical of racism. (The most censored books of all times are 1984, The Adventures of Huckleberry Finn, The Catcher in the Rye, The Color Purple, The Great Gatsby, I Know Why the Caged Bird Sings and Lord of the Flies.)

The culture war isn’t “just” about democracy versus Christian Nationalism. It’s also about ignorance versus knowledge.

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A Cost/Benefit Analysis

Freedom of the press isn’t just implied in the First Amendment’s Free Speech clause, although that clause clearly extends to the media. According to historians, the country’s founders wanted to explicitly protect press information-gathering, because democratic processes depend on an informed electorate.

That understanding–that constitutional principle–is what makes a police raid on a Kansas newspaper so appalling. (When a reader first alerted me to this, I was certain there had to be more to the story–that the initial reports must have been wrong. I was the one who was wrong.)

As NPR has reported:

The small-town Kansas newspaper raided by police officers on Friday had been looking into allegations of misconduct against the local chief just months ago, according to the paper’s publisher, raising further concerns about the law enforcement officers’ motives.

The Marion, Kansas police department confiscated computers, cell phones and a range of other reporting materials from the office of the Marion County Record — the sole local paper in a small city of about 2,000 residents. Officers spent hours in the newsroom. It also seized material from one of its journalist’s homes. Eric Meyer, the publisher and co-owner of the newspaper, said his 98-year-old mother passed away the day after police raided her house, where Meyer was staying at the time. He said he believes the stress from the raid contributed to her death.

The background to the raid is particularly telling: the Record had conducted “routine background checks” just before police chief Gideon Cody took office. That “routine check” was evidently informed by anonymous tips the paper received after it ran a story about his candidacy for the police chief position.

Cody was sworn in as Chief in June, after retiring from the Kansas City Police Department in late April. Meyer was quoted as saying that “It was alarming, to say the least, the number of people who came forward, and some of the allegations they made were fairly serious. We were simply looking into the question.”

When a reporter asked Cody to comment on the allegations, Cody threatened to sue the paper, and the department stopped providing routine information to the newspaper. And then,

County magistrate judge Laura Viar signed a search warrant on Friday morning, authorizing the Marion police department to raid the Record. The warrant cites suspected “identity theft” of a local restaurant owner as the reason for the raid.

On Friday, just after the raid, the Record requested access to the probable cause affidavit — the document that would outline why the judge saw reason to authorize the raid — from the Marion County District Court.

But the court’s written response, reviewed by NPR, indicates that document may not exist.

There’s more, and it will undoubtedly all come out as other media outlets investigate the threat posed to press freedom by this episode. But what is especially troubling is that this bit of official thuggery comes at a time when local newspapers are disappearing.

As an article in the Atlantic noted, local newspapers don’t just serve democracy–they also save tax dollars. The article cited a story in the Salt Lake Tribune, revealing that San Juan County, Utah, had paid a single law firm hundreds of thousands of dollars in lobbying fees. The story also reported that the firm had overcharged the county, the poorest in the state, by $109,500. Embarrassed, the firm paid the money back.

That one story retrieved for taxpayers a sum that was triple the reporter’s annual salary. As the author of the article noted, funding local news would more than pay for itself.

In addition to providing citizens with the information needed to make democracy work, in addition to the tax dollars saved when government is under the eye of media watchdogs, local newspaper reports feed community , especially in rural areas. A recent article from the Washington Post focused on that function.

At a time when hooligans have hijacked the national discourse with disinformation and paranoia, the Rappahannock News operates in a calmer place where the slow rhythms of rural life are newsworthy — and where, regardless of political views, its readers are unified by a powerful sense of community…

Similar newspapers once bound together communities everywhere. A century ago, The Post, too, carried items on the humdrum comings and goings of local residents. Though the news became impersonal in big cities, community papers continued to be at the core of rural and small-town America.“

As a Local News Initiative official puts it, local news organizations are the glue that hold the community together. When there’s a void of local news, people revert to the blue and red echo chambers and national news sources that confirm their own belief sets, and it aggravates partisanship.”

That Kansas sheriff obviously doesn’t care.

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Okay–Let’s Talk About Free Speech

I haven’t posted about the indictment filed against Donald Trump by Jack Smith, because everyone else in the universe is contributing to that discussion. But one element of those analyses/debates sets my hair on fire.

Nothing about this prosecution is about Free Speech. Nothing!

I taught my classes in Law and Public Policy through a constitutional lens. I spent the first part of the semester on what I call the “constitutional architecture”–very much including the Bill of Rights. (I was always shocked by the number of students who came to class totally unaware that the First Amendment protects citizens against government censorship–not from other people’s negative responses.)

When we came to freedom of speech, I wanted students to understand the difference between speech–defined as the constitutionally-protected communication of an idea, no matter how wrong or stupid or hurtful–and action, including action effectuated through speech.

Some of the examples I used:

I tell you I’ll make you a great deal on a diamond ring. It turns out to be a cubic zirconium. My representations that it was a diamond aren’t protected “speech,” they are fraud–a criminal action.
I call you every 15 minutes and scream at you over the phone. You call the police. I protest that I am engaging in freedom of speech. I’m wrong–harassment is an action, and the government has a right to proscribe it.
I’m a police officer, and I’m sitting in a restaurant booth. I hear the people in the next booth planning to rob the local bank. One says, “okay, I have the car. You have the gun. I’ve cased the place, and if you are there promptly at two, when the security officers shift, you should be able to get in and out by ten after, and I’ll be waiting.” A conversation of this specificity (unless they are actors rehearsing a scene!) constitutes the initial steps–actions–of the commission of a crime. I need not wait until they are in the middle of that bank robbery–I’m entitled to arrest them now.
You are a MAGA fanatic, and you regularly post diatribes to social media about how horrible Joe Biden is, how government and the “deep state” cannot be trusted and how you regularly pray for the painful death of all Democrats. Aside from your social media screeds, you take no action to harm anyone. That’s free speech, and you’re home free–at least, when it comes to the criminal law. (If you accuse specific political foes of being pedophiles or Satanists or whatever, you will risk a civil suit for libel or defamation, but absent credible threats and/or concrete actions to harm someone, you will not face criminal prosecution.)

Bribery, Insider trading. Identity theft and selling state secrets to foreign governments are other examples of crimes committed via speech.

One of the reasons people get confused about what free speech is and what it isn’t is the fact that “speech”–that is, transmission of a message– can be accomplished without words. (The legalese is “symbolic speech.”)

Burning a flag (assuming you own that flag and you aren’t violating a dry weather “no burning” ordinance) is protected by the First Amendment, because the whole purpose of that act is to send a message that the burner disapproves of the country. It’s a message that angers a lot of people, but that doesn’t justify government punishing it.

Nazis marching in Skokie, Illinois or Charlottesville, Virginia are sending an equally clear message, even without the latter’s accompanying chants. We all know what that message is, and–again, absent violence, vandalism or other hooliganism–it’s protected by the First Amendment.

The text of the Trump Indictment acknowledged that his lies were protected speech. Whether he believed them or not is irrelevant–so long as he was only posting his crazed diatribes and screaming about the election being rigged, the First Amendment protected him. Once he took concrete actions to overturn the results of the election and remain in power, however, the Free Speech clause no longer applied.

I’ve read several columns by people who should know better, gravely opining that prosecutors will have to establish whether Trump actually believed the garbage he was spewing, and noting that making such a showing is difficult. Those writers need to re-take high school civics. As a better-educated pundit noted, I may be genuinely convinced that I am entitled to your car, but stealing it is still a crime.

Trump’s MAGA defenders can scream about the Department of Justice “criminalizing” Free Speech, but those protestations will only sound plausible to people who slept through their high school government class.

This whole debate proves my point about the deplorable level of Americans’ civic literacy.

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The Conundrum

In a discussion the other day with a friend and former legal colleague, we recalled the mantra of the law firm with which we’d once practiced: there is only one legal question, and it’s “what do we do?” What course of action do we advise the client to pursue?

I think about that mantra a lot these days, and most frequently in connection with the media.

I’m convinced that so many of the problems that bedevil American society today are exacerbated by a media landscape that is wildly fragmented. Not only are numerous media outlets–credible and not-so-credible– nakedly partisan, but thanks to the internet, they are all immediately accessible to citizens looking for “news” that confirms their world-views.

Partisan news organizations are nothing new–if you don’t believe me, read up on the vicious contemporaneous attacks on “ungodly” Thomas Jefferson. What is new is the sheer number of media outlets and the ease of accessing them.

The problem isn’t confined to out-and-out propaganda mills. Dubious stories from slanted outlets can and do get picked up by credible news organizations, and its a truism that later “corrections” are seldom as widely read as the initial misinformation.

Josh Marshall at Talking Points Memo recently reported on an example: the New York Post had run a “made-for-Fox News story” about veterans who, it reported, had been “booted out of hotels about an hour north of New York City to make way for migrants”.

As I said, it was a made-for-Fox News: Here are these disabled or impoverished American veterans getting kicked to the curb to make way for migrants with no permission to be in the country in the first place. Politicians jumped on the story. The Post ran it. It made the rounds of the wingnutosphere. Fox of course got on board.

But none of it was true. And I don’t just mean not true in the sense of being misleading or incomplete or embellished or sensationalized. It was a hoax. Sharon Toney-Finch, the founder and head of a small local nonprofit, the YIT Foundation, which focuses on veterans issue and premature births (?) was the source of the original story. But it turns out the she recruited a group of 15 homeless men from a local shelter to impersonate veterans and talk to the press about their tale of woe.

After a few of the homeless men admitted the truth to reporters, Toney-Finch confessed she’d made the whole thing up.

The hoax was apparently perpetrated with the aim of creating a media spectacle for the right-wing press–to focus on the Biden administration’s terrible, awful, no-good approach to immigration, and the purported national immigration crisis. Even the Post has now been forced to recant and report on Toney-Finch’s hoax.

A local paper, The Mid-Hudson News, uncovered the truth with what Marshall notes was “a lot of shoe-leather reporting.”

This relatively minor story is a microcosm of our current dilemma. Today’s media environment is a Wild West of propaganda, spin, misinformation and outright lies. Along with the partisans peddling that propaganda and those lies are genuine reporters working for outlets that practice old-fashioned “shoe leather” journalism. And protecting them all are the Free Speech provisions of the First Amendment.

So–what do we do?

What we clearly cannot and should not do is eliminate or constrict those First Amendment protections. The result of that would be to hand over to government the power to censor communications.

In some cases, like the recent Dominion lawsuit against Fox, libel law can be employed to punish the most egregious behaviors, but this is a very slim reed: few of those who’ve been libeled have the means to bring such suits, and they are–quite properly–very difficult to win.

Unfortunately, new rules that would make it easier to sue over misinformation would end up constraining real journalists as well as the sloppy or dishonest ones–when you are creating the “first draft of history,” it can be easy for even good reporters to make mistakes, not to mention that in the multiple gray areas of modern life, one person’s truth is another person’s lie.

The only answer I can come up with is better education and a change in the information culture–both long-term projects. Teaching critical thinking and media literacy in the schools–although highly unlikely in those fundamentalist religious schools to which our legislature sends our tax dollars–would help. Organizations like the Society of Professional Journalists that issue codes of ethics might consider “rating” outlets based upon their observance of those ethical standards.

But as long as individuals can search for and locate “facts” they find congenial, Americans will continue to inhabit alternate realities. I just don’t have an answer to “what do we do?”

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They’re Coming For Those Subversive Librarians…

I regularly read Juanita Jean, The World’s Most Dangerous Beauty Shop, to keep up with the governmental insanities we’ve come to expect in the Lone Star State and elsewhere. A recent post reported that a Texas county has joined the battle against those dangerous librarians who are threating…something or other.

Poor Llano County. Some federal judge has just ordered the county to return twelve (yes, count ’em, 12) children’s books to their public library shelves. It seems that the books offended the sensibilities of some adults who object to the racial and LGBT+ issues that are raised in them.

So rather than complying with the judge’s order, Llano County Commissioners are considering an old and accepted recourse: the equivalent of filling in the swimming pool.

Rather than bend to the Feds, the Llano County Commission is studying on nose-thumbing (and nose-cutting/face-spiteing) by closing all of their county libraries.

It’s a really great solution, see. No one can blame them for depriving their children of learning about racism and gender issues if no one in the county can learn about anything at all.

The Commisioners later backed down in the face of ferocious public pushback.

Texas isn’t alone. Republicans all over the country are moving against these purveyors of books with language or ideas that the GOP finds unacceptable. In Missouri, House Republicans recently voted to defund all of the state’s public libraries. The Republican chair of the budget committee was quoted as saying that cutting the aid was retaliation for an ACLU lawsuit to overturn a new state law banning sexually explicit material in school libraries.

Apparently, books and libraries are “woke.”

Librarians are reeling from the onslaught.In one instance reported by the Guardian, library personnel who had planned to launch a bookmobile in a bus that would visit various sites across town, including three schools, abandoned that plan when a law criminalizing anybody “who makes visually explicit materials available at a school” went into effect. They decided to keep the bookmobile away from schools, noting that violators of the new, nebulously worded law would face up to one year in jail and a fine of up to $2,000. As one of the librarians explained, “We are unsure on what someone can interpret as sexually explicit.”

The quotation reminded me of a passage in Nadine Strossin’s 1996 book, Defending Pornography. Since “porn” is in the eye of the beholder, Strossin wrote “If it turns you on, it’s pornography. If it turns me on, it’s erotica.”

Throwing around and misusing vague labels, of course, is what those who have appropriated and misused the label “conservatives” love to do.

Conservative parent groups that formed to oppose masks during the pandemic, only to pivot to the fight against “critical race theory”, have now begun to focus on scrutinizing books, often by and about queer and Black people, and lobbying for their removal from library shelves. Politicians have hopped on the bandwagon, drafting legislation to supposedly protect children against indoctrination and predation, calling out books by name and making it impossible for the people who run schools and libraries to do their jobs. Fringe activists and government officials are taking to social media, holding meet ups, and riling up their bases with reports of indoctrination, propaganda and the supposedly pornographic materials that lurk on the bookshelves of public institutions.

The culture warriors out to terrorize Marian the Librarian are seeing considerable success. In an Urban Library Trauma study conducted in 2022, more than two-thirds of respondents reported encountering violent or aggressive behavior from patrons at their library.

Conservative parent groups such as Moms for Liberty, No Left Turn in Education and Parents Defending Education aren’t the only ones invested in the fight against books by Black and LGBTQ+ authors. Rightwing extremist groups have also adopted the cause. Proud Boys have taken to storming into Drag Queen Story Hour events, for instance, causing serious fear for patrons and librarians.

Lest we give these censors the benefit of the doubt, thinking they are identifying mostly trashy books, it’s instructive to consult the AIA’s annual list of the most frequently challenged books. Among others, recent lists include Harper Lee’s To Kill a Mockingbird, John Steinbeck’s Of Mice and Men, and Toni Morrison’s The Bluest Eye.

The list as a whole is revealing: challenges are overwhelmingly aimed at books by or about LGBTQ+ people, and books critical of racism. According to Google, the most censored books of all times are 1984, The Adventures of Huckleberry Finn, The Catcher in the Rye, The Color Purple,The Great Gatsby, I Know Why the Caged Bird Sings and
Lord of the Flies.

Twentieth -century political philosopher Alexander Mieklejohn said it best: People afraid of an idea–any idea–are unfit for self-government.

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