Facebook 'Like' protected by First Amendment

A while back, the case Bland vs. Roberts, the court of appeals ruled in favor of Bobby Bland, a former deputy sheriff from Hampton, Va., who was just one of many other employees who were fired for ‘liking’ the Facebook page of his former boss’s electoral opponent. After their boss, sheriff B.J. Roberts, won his race he then fired Mr. Bland and five other employees. He said the firings were the result of "budget cuts" and "the workers’ disruption of office dynamics." Under First Amendment Law, individuals are protected from retaliation of a public official.  Bland and his other employees took the case to court suspicious of their termination.

           The reason why this case was so monumental in the world of Free Speech is mainly because, now, the First Amendment is now recognizing that speech is protected in both the physical world and now a simple key stroke. Understandably, the First Amendment’s ruling on Free Speech extends to the Internet, which unfortunately our forefathers failed to project far enough into the future and left the Constitution rather hazy when applied to the ever-expanding cyberspace. What would be easily comprehended would be cases that involved an exchange of words (Greshamn vs City of Atlanta) rather than a simple stroke of a key. But what is being argued is that, in "liking" a page, the individual is physically acknowledging that they are supporting and now representing all things that the page they “liked” stands for. 

           

          As Chief Judge William B. TraxlorJr. stated, “”On the most basic level, clicking on the ‘Like’ button literally causes to be published the statement that the user ‘likes’ something, which is itself a substantive statement.” Judge Traxlor proposed that although the individual was not saying they literally "liked" the page out loud, they were still saying something by 'liking' the page. What is to be determined is the ever-changing world of social media. With this in mind, could everything from sending a 'thumbs up' to a 'smiling' or 'frowning' emoji be grounds for true interpretation in future cases? 

Finding a Fair Comparison for Online Activity

            Law has not completely caught up with technology.  In addition to the turnout of certain court cases, particular uses of this technology seem unfair and unreasonable.  Whether or not social media expression is protected is an issue that U.S. courts are split on, and the Supreme Court has not yet handled.  Courts continues to inadequately compare online activity to physical activities, but steps have been taken in a progressive direction.

            In 2009 six people were fired for liking and commenting on the Facebook page of their boss’s opponent.  A court of Appeals found that "liking" something on Facebook was the "Internet equivalent of displaying a political sign in one's front yard," which the Supreme Court had already declared as protected speech.  This reversed District Judge Raymond Jackson's previous ruling that “liking” is not protected because it is “insufficient speech” and therefore is not protected.  (http://www.cnn.com/2013/09/18/tech/social-media/facebook-likes-free-speech/)(http://online.wsj.com/news/articles/SB10001424127887324807704579083391772699608).

Repercussions in the workplace for online actions seem unacceptable, especially since employers have very little control over the off-duty actions of their employees.  An employer could see that an employee roots for a certain baseball team, is homosexual, or is of a certain religion, and find “justification” to fire them elsewhere on Facebook.  According to the Society for Human Resource Management, this phenomenon is called “lifestyle discrimination”  (http://www.shrm.org/templatestools/hrqa/pages/disciplineforoffdutyconduct.aspx).

            The biggest issue in a case regarding online activities is defining the equivalent since our system is based on precedents, or previously decided cases. Unfortunately, there is no equivalent to most online actions; it is a completely separate thing.  Regarding the previously discussed case, American Civil Liberties Union’s Ben Wizner said, "The Constitution doesn't distinguish between 'liking' a candidate on Facebook and supporting him in a town meeting or public rally."  (http://www.shrm.org/templatestools/hrqa/pages/disciplineforoffdutyconduct.aspx).

Comparing “liking” to going to a rally is ridiculous for two reasons.  Firstly, there is much more effort involved in going out and physically participating in a rally.  Secondly, little to no thought goes into “liking.”  People “like” things for a variety of reasons, making this a complicated problem.  People may “like” something out of support, because they think it is funny, because they do not know how to work the computer, because they are on a touch-screen phone and did not mean to, or lastly (the assumed reason) because they actually do agree.  This makes it clear that “liking” a post or page on Facebook can be more equal to accidentally stumbling into a rally than attending it on purpose.

This objection also goes for other posts.  Particularly non-technologically savvy users may post or share something accidentally.  It is unreasonable for Internet use to affect employment. Citizens should not be punished for their lifestyles or meaningless mistakes.

Political Campaign Contribution Limitations

Campaign spending and contributions are sky high. Just look at the last presidential election in 2012. Mitt Romney, the Republican National Committee, and the Restore Our Future Super PAC raised a combined total of $992.5 million and spent $992 million. President Obama’s campaign as well as the Democratic Party and Priorities USA Action Super PAC raised $1072.6 million and spent $985.7 million of that income (http://elections.nytimes.com/2012/campaign-finance). The debate about limiting campaign contributions and spending has been going on for a while. With the rise of several prominent Super PACs last election cycle, the debate has become more necessary. This debate was put before the Supreme Court in early October.

In 1974, the Federal Election Commission (FEC) was created to oversee and enforce campaign finance regulations (http://www.washingtonpost.com/blogs/the-fix/wp/2013/10/08/supreme-court-takes-up-the-sequel-to-citizens-united/). Since then the FEC has established a set of parameters for how much money an individual or corporation can donate to a campaign or political party each election cycle. These limits were put in place to help stamp out corruption.

For the current 2013-2014 cycle, an individual can give up to $123,200 to candidates, national party committees, and certain political committees (Sullivan, 2013). Individuals are also limited to how many candidates they contribute a base amount.

Shaun McCutcheon, a wealthy, conservative businessman from Alabama, along with the Republican National Committee, is challenging the FEC. McCutcheon is not challenging the contribution base limits rather he wants to give the maximum amount of money to as many candidates as he wishes (http://articles.washingtonpost.com/2013-10-08/politics/42812345_1_citizens-united-contributions-justices).

With limitations in place on an individual’s contributions, there has been a rise in Super PACs. A Super PAC is a political-action committee with the sole purpose to advocate for a particular candidate. Super PACs are independent of the candidate’s or party’s campaign. By nature, donors are able to give an unlimited amount of money to these Super PACs (http://uspolitics.about.com/od/firstamendment/a/What-Is-A-Super-Pac.htm).

In 2010, the US Supreme Court rejected limits on political contributions by unions or corporations, claiming limits to be unconstitutional in Citizens United v. Federal Election Committee (http://www.nytimes.com/2010/01/22/us/politics/22scotus.html?pagewanted=all&_r=0).  There was not a ruling in this case about how much an individual could give. Maybe it’s just a coincident, but during the summer of 2010 the United States saw the rise of the first major Super PACs. In the McCutcheon case, it will be up to a conservative Court to determine if monetary limitations should continue for individuals.

During the last presidential campaign I feel like I saw more Super PAC ads than ads from the candidate or political party. As a voter, I would rather see an advertisement from the candidate himself than from an independent organization. If limitations on political contributions were removed we could return to the traditional way of campaigning and hear from the candidate himself. I feel like the Super PAC movement meddles too much with the campaigning process. Their ads often add to the negative atmosphere surrounding political campaigns.

Being able to donate as much as you want to a candidate, party, or committee should be protected by the First Amendment. We should be able to express our support for a candidate however please. If that means that an individual wants to donate a large sum of money to a particular candidate, they should be permitted. Our right to show our support for a candidate should not be limited by a sum of money. If these limitations are removed, a more traditional campaign process could return and Super PACs could be done away with.

The New Drug Testing: Student-Athletes and Social Media

Social media platforms are an integral part of student life on college campuses.  As use of these media outlets continues to grow, some collegiate student-athletes find their personal accounts monitored, censored, or subject to scrutiny by universities.  This is a sensitive topic in the area of free speech.  There has yet to be a First Amendment lawsuit on the issue however, it certainly is not out of the realm of possibility for the future.  

Social media policies differ for student-athletes based on the individual university.  Some schools, including Boise State and New Mexico State have barred use of certain social media all-together during season.  Other universities, (including Mizzou football) employ private third party resources such as Varsity Monitor, Centrixsocial and UDiligence with the sole purpose of monitoring the content of student-athlete social media.  These companies have developed a program which searches for a list of words and phrases that could potentially be “red flags.”  The list of “red flag” words is unique for each program and might contain content regarding alcohol and drug use, names of a rival school’s top athletes, and even content consistent with NCAA violations.  In a less invasive approach, schools such as the University of Michigan require student-athletes to sign an agreement regarding their social media accounts and provide athletes with guidelines for social media usage. 

Historically, student-athletes have been negatively implicated due to content released through social media outlets.  Western Kentucky running back Antonio Andrews was suspended after tweeting a comment critical of the school’s fans.  Lehigh University wide receiver Ryan Spadola was suspended for retweeting a racially charged message.  Possibly the most notorious incident comes from the case of Yuri Wright, a star high school football player.  Wright lost a full scholarship offer to Michigan as the result of a sexually explicit tweet and was also expelled from his private high school.  

Under the First Amendment, administration and coaches at private universities are legally allowed to impose restrictions on social media usage.  However, public universities are federally funded and therefore fall into a different category of restriction in terms of free speech.  Howard Wasserman, a law professor and sports law expert at Florida International University likened student-athletes to employees of the university, “These athletes are playing on behalf of the university, and they are something akin to employees and there’s less First Amendment protection for employee speech, particularly speech in the course of their job.”  The issue at hand is how far is too far and who has the jurisdiction to impose these boundaries.  In another opinion, Ken Paulson, president of the First Amendment Center commented that banning social media use all together to be completely unreasonable, “We simply need to make sure that student athletes are given the latitude they deserve as students, and that any restrictions on their communications be rational.”  As the issue grows, so too does the controversy and the frequency with which these issues will arise.

“This is going to be the new drug-testing,” UDiligence CEO Kevin Long stated in a public email with a client. “It will be as common as being asked to take a drug test in the next two years or less.”

War of Words: Football and Student Newspaper vs. the Administration

Grambling State University has suffered through some embarrassing times these past few weeks. Its famous football team forfeited a game against Jackson State after it players refused to play due to poor facility conditions at their school and an exhaustive (and very unfair) travel schedule. Now, Grambling’s student newspaper has become a part of the fracas.

Two editors at The Gramblinite, the student newspaper, were suspended after they made “opinion based” tweets while covering the ongoing controversy regarding the football team at Grambling State. Online editor David Lankster Sr. claims he was fired for for tweeting photos of the school's athletic facilities which proved the players’ claims that they were covered in mold and mildew (http://www.huffingtonpost.com/2013/10/22/grambling-state-journalists-students-punished_n_4142039.html). However, in an exchange with the school’s communication director, The Gramblinite’s Twitter account stated, “Obviously the administration doesn't care about the football team...and apparently the players have stopped ACTING like they care.” The tweet was later deleted.

The tweet that was in question supposedly was not the opinion of The Gramblinite.  Lankster claims that it was the opinion of a football player and the only problem was that the tweet  should have indicated that fact. Lankster also claims that he posted a tweet by an administrator who said they did not care about football, but did not attribute the tweet (http://www.splc.org/news/newsflash.asp?id=2623). The suspensions of Lankster and the other staff member were overturned on Tuesday, but both members have stated they do not plan on  returning to the newspaper (http://www.huffingtonpost.com/2013/10/22/grambling-state-journalists-students-punished_n_4142039.html).

The Grambling football story illustrates the almost impossible balancing act student newspapers face around the nation in trying meet their First Amendment responsibilities when reporting on the administration of one’s university (which controls your paper). SLU dealt with this situation last year and Grambling’s situation is even messier. Student newspapers should always indicate whether any story arising on social media or in more traditional outlets, are factual reports or opinions of the editorial board. However, student newspapers should have the “independence” from the university which allows them to makes such choices without fear of reprisial. The message had good context because of the previous tweets showing the atrocious conditions in the training room, but the paper did not communicate their message effectively.

The National Association of Black Journalists decried this action as, “the adversarial pattern that persists between administrators and student media at historically black colleges and universities” (http://www.splc.org/news/newsflash.asp?id=2623). It is a difficult situation. Grambling wants to maintain its reputation in the face of cuts to their budget from the state of Louisiana and avoid negative press toward the university. However, it is a sad day when protecting a university gets in the way of a student’s First Amendment rights. These students are not able to freely express their views when they had factual evidence to support their opinion and that is wrong.  

The Price of Free Expression For All

One of the greatest freedoms we, as Americans enjoy is the right to free expression. We can speak our minds about anything, whether it is in agreement or disagreement without any fear of punishment. On paper, it sounds just and makes sense. However, when it comes to difficult circumstances like the Westboro Baptist Church’s aggressive outcry against homosexuality, abortion and other hot topics. Their actions often rub people in the wrong way and are seen as transparently disrespectful to the mass. Even though a majority of the people disagrees with the church’s tactics and beliefs, the First Amendment protects them. Which means that anyone who retaliates against the church’s statements is acting against the First Amendment.

Westboro Baptist Church, a Kansas based church, has been in the eye of the free expression storm for quite some time now. The religiously outspoken church is known for its extreme course of action. They have been seen picketing at soldiers’ funerals and protesting against homosexuality (Westboro Baptist Church, 2013). Despite of their seemingly insulting approach, the First Amendment protects their actions. This article focuses on an attack on the Westboro Church via hacking their official website. Despite the fact that the Westboro Church famously alienates majority support, it is not legally acceptable for anyone to retaliate the organization’s beliefs and values.

The First Amendment protects the church’s right to protest as many soldiers’ funerals as they want as long as they follow the precedent limits and rules. Even though their actions may be hurtful and disrespectful, they still have every right to express themselves freely (Policinski, 2012). In this situation, author Brad Thor’s quote resonates a truth, “I live in America. I have the right to write whatever I want. And it's equaled by another right just as powerful: the right not to read it. Freedom of speech includes the freedom to offend people.” The First Amendment is written to protect each and every person’s right to free expression among other rights. In order for it to work successfully, there cannot be any exceptions, even if it is hurtful, like in this case. Chief Justice Roberts brilliantly explained, “In public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” In order for the First Amendment to work successfully, there cannot be exceptions made against organizations like the Westboro Church. It is one of the prices we all must pay for freedom.

Religion Within Education

When I was in grade school, I attended a public school. From age 5-14, I was exposed to diversity that I am so appreciative of now. I had friends of all religious backgrounds: Muslim, Hindu, Christian, etc. When time came for me to attend high school, my parents decided to send me to the local private school that was founded upon a Catholic tradition. Suddenly my world was narrowed and the diversity I was fortunate enough to be exposed to in grade school no longer existed. Nearly everyone in the school was Catholic, or at least Christian. There was no exchange of ideas or talk about different religions. It took me a very long time to get used to standing up for the morning prayer, the weekly masses held in the gym, and religion classes. My years at Bishop McNamara Catholic High School taught me a very valuable life lesson: religion in schools is bad. In fact, my experience at a narrow-minded high school very nearly prevented me from choosing a Catholic college. It was because of my research on the Jesuit mission and understanding of the openness to other religions that ultimately convinced me that I would be able to pursue a more "liberal" education (liberal in the sense that Jesuit education encourages exploration into the unknown). 

My experience as a high school student got me thinking. Is religion in schools really that unfortunate? Does the encouragement of practicing a certain faith truly detract from the attention of other important school matter? Can religion hold a valuable place in the public education system? 

In March 1940, a group of community leaders organized religious classes to be held in the public schools of the surrounding area. This attempt to add a moral, religious element into the classrooms might have been done with good intentions. But it was wildly unconstitutional. 8 years later, on March 8th, the Supreme Court made a now extremely famous ruling on the constitutionality of the case. When Vashti McCollum's son was beaten by classmates and sent to the hallway in punishment for refusing to participate in the religious discussion, she decided to do something about the organized religious classes resulting in: McCollum v. Board of Education. McCollum's dedication to justice led her down a long path of fighting against the court system. She originally lost her case in a circuit court and the Illinois Supreme Court but was ultimately victorious in an 8-1 vote at the Supreme Court level. 

Justice Hugo Black said, "The First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere."

Another article really sparked my interest in the whole "religion in schools" debate. 51% of all Americans, both conservative and liberal, consider the Constitution to be a Christian based document. In their own interpretation of the Constitution, they truly believe that it establishes a Christian nation and therefore protects the pursuit of Christian ideals. However, the sole mention of the pursuit of religion in the Constitution is: “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The First Amendment clearly outlines a distinction between Church and State. Although some Founding Fathers, such as Hamilton, were originally concerned about a divergence from a Christian society, the executive decision to exclude religious protection from the Constitution might possibly be the most wonderful thing the Founding Fathers did. 

However, I do think there are times when education pertaining to religion is extremely important. As long as it is an educational endeavor rather than a statement on or encouragement of a certain faith, students need to understand world religions. Recently a Kansas school found itself in an ethical dilemma. In accordance to a unit being taught in class, teachers created a bulletin board educating students on "The Five Pillars of Islam." Angered by the education of religion, or maybe due to a bad case of Islamophobia, students snapped pictures of the board and posted them to a Facebook page titled "Prepare to Take America Back." And school officials actually did take down the educational bulletin board! In the context of education, a justified and constitutional effort to educate was reprimanded and refused. I wonder if the board was an effort to educate students on Christian ethics, if it would be removed? 

I'm a huge proponent of education on world religions. Believer or not, it is extremely important to understand how religion shapes culture and influences nearly every aspect of life. When abused, this education on religions can become biased and narrow-minded. In America, we often see this in a Christian context. However, when intentions to venture out of the Christian point of view are made, they are often not well-received and even completely denied. For me it does not make sense. There is a large difference between education and promotion. One holds a place in the school system and one does not. 


Roger Williams, founder of Rhode Island, once said "Religious freedom in itself is a Christian principle."

Prior Restraint In Film

Prior Restraint in film existed even before the Lumière Brothers awed and terrified audiences with their very early (and realistic for the time) film of a train coming into a station. The danger of film, its universality and power to influence us in a way no other medium can, was quickly recognized and feared. When employed correctly, film takes the immense power of words, images, and music and combines them into one even more powerful message – a message ripe for censorship.

Film and censorship are so intricately linked that the first case of film censorship took place before film itself was even invented. In 1893, Thomas Edison was preparing some images for a special Kinescope (the precursor to motion pictures) exhibition. Among the moving pictures he intended to show was a well-known turn of the century erotic dancer, Fatima. Edison ended up producing a censored version with white cross-hatchings etched access the image. Motion picture film followed soon after in 1894 and was quickly met with censorship. This has continued through the years.

One of the best known and widest ranging sets of censorship was the Production Code. Even if you have never heard of it before, you have almost certainly seen its effects. William Hays arrived in Hollywood in January of 1922 to help the motion picture business recover from a recent series of scandals that had rocked box office numbers. Throughout the 1920s, Hays introduced more and more restrictions and cautions on what should be seen in movies and what should not. Finally, spurred in part by the worries of big investors back East who had already lost big in the Stock Market Crash, Hays succeeded in passing an official production code on February 17, 1930. The Production Code, known more colloquially as the Hays Code was largely drawn up by Martin Quigley, publisher of the Motion Picture Herald, and Father Daniel A. Lord, S.J. of Saint Louis University. The code, which remained in effect until 1968 centered around three general principles:

1.    No picture shall be produced which will lower the moral standards of those who see it. Hence the sympathy of audience shall never be thrown to the side of crime, wrongdoing, evil or sin.

2.    Correct standards of life, subject only to the requirements of drama and entertainment, shall be presented.

3.    Law, natural or human, shall not be ridiculed, nor shall sympathy be created for its violation.

Even after script submission became mandatory in October of 1931 it was still possible to work around the Studio Relations Committee - the body that attempted to enforce the code. Much more difficult was getting past local and state censors – particularly the New York film review board.

On July 1 1934, the MPPDA (Motion Picture Producers and Distributors Association) board renamed the Studio Relations Committee the Production Code Administration (PCA). With this change came the ability to finally control the content streaming from Hollywood to theaters everywhere. The board created the PCA seal of approval which each film was now required to earn before it was released or distributed. Attempts to defy this new rule incurred a fine of $25,000.

It wasn't until the 1950s that the Production Code began down its long road of decline – a road that gained momentum when the Supreme Court overturned precedent supporting film censorship in Burstyn v. Wilson (1952).  In Burstyn v. Wilson the court ruled unanimously that a New York statute enjoining sacrilege was too broad to satisfy the First Amendment, now applicable to the states through the Fourteenth Amendment. It was also the first time the Supreme Court referred to films as a medium of speech and artistic expression.

The last two major blows to the production code were Who’s Afraid of Virginia Wolf, with which the Studio Relations Committee approved much more than ever before, and another Supreme Court case: Freedman v. Maryland. In Freedman v. Maryland (1965) the Supreme Court finally put limits on film censorship. In order to censor all, or part, of a film the would-be censors would now have to pass three new standards. First, they would have to bear the burden of proof. Any would-be censors had to prove that a certain film or scene was an example of unprotected expression. Second, they would need to make their claim quickly and, third, they were subjected to judicial review. Any prior restraint laws would now need to include a provision for a prompt review by the courts before any censorship.

The MPAA (Motion Picture Association of America - Previously MPPDA) took this ruling as an opportunity. The days of the production code were now officially over and, in order to smooth the way with film review boards who found themselves on increasingly shaky ground, the MPAA introduced a measure of self-censorship – film ratings. The ratings, originally, G (general audience), M (mature audience), R (restricted - no one under 17 unaccompanied by a parent or guardian) and X (no one under 17), have morphed since their November 1968 debut to the system we know today (G, PG, PG-13, R, and NC-17).

Though today United States filmmakers enjoy wide ranging freedoms of what they can bring to the screen, every country is not as free. China, India, Lebanon and many other countries all have active film review boards. Wood Allen’s Blue Jasmine was unable to release in India because Allen would not conform to India's rules on smoking in movies and Lebanon has recently banned a film which focuses on homosexuality.

Though many cases of censorship around the world and in our history seem ridiculous today, some movies appear to many (including me) to be more graphic than is healthy for our society. An example is Riddick, which premiered in September. Though I will freely admit that I have not seen the movie, from the trailer and plot synopsis it appears that this movie had no purpose other than to include as many graphic battles as possible and show off improved special effects. Is a movie like this contributing at all to our society? Though some studies claim there are no adverse effects of violent video games or violent movies, they still worry me. With Hollywood constantly ratcheting up the pace, violence, shock, and amount of skin showing, I've begun to worry about where some films are headed. It cannot be good for us to constantly be exposed to so much controversial material.

On the other hand, could we constitutionally censor extreme senseless violence in movies? If we were to censor some violence, how much would we let through? Certainly we would not want to return to the days of the Production Code, but how much do we really want? Would the context matter? Could we censor a movie like Riddick but allow 12 Years a Slave, which shows just how brutal some slave owners were?

Another argument against censorship would be the ratings system. It serves to let us know whether a movie is appropriate for different audiences and leaves decisions up to viewers and parents. I would argue, however, that some material we get today may not be appropriate for anyone. More importantly, an R rating does not necessarily keep underage patrons out. Some parents are willing to let their children see just about anything and, with the way most theaters are set up, there is nothing to stop an underage patron from simply buying a ticket to a lower rated film and going to see the R-rated movie instead.

While I am hesitant to promote any censorship, if filmmakers do not start considering more the effects of their films we may want to begin discussing a new production code. What do you think?

Further Sources:

Censored Hollywood by Frank Miller

Freedom of Speech in the United States (6th Edition) by Tedford & Herbeck

Why hateful speech hurts society

I thought the short discussion we had on hateful speech in class was the most interesting. I have always disliked hateful speech because of the rifts it can cause in society. I came across a couple articles online that I found interesting. The washingtonpost.com wrote a story on the Westboro Baptist church and their protests against military funerals.

The article reads that we as Americans tend to “wish for less of something that the First Amendment protects. Less hateful speech. One noisy protest group.” (Gene Policinski). One particular noisy protest group that has become a house hold name is the Westboro Baptist church. Their anti gay speech and military funeral protests have sparked controversy across the nation. The first amendment protects their “hateful speech” as the Supreme Court ruled. Robert Barnes a Washington Post Staff writes

“Chief Justice John G. Roberts Jr. wrote that the Westboro Baptist Church’s picketing at fallen soldiers’ funerals ‘is certainly hurtful and its contribution to public discourse may be negligible.’ But he said the reaction may not be ‘punishing the speaker’. As a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

So even though their speech is hurtful and some Americans probably wish that they could be stopped, the ruling shows that the Westboro church is able and free to continue their “hateful speech”. While their type of speech is not smiled upon, if we as a country limited their speech because we do not like it; who else’s speech would we be able to silence just because we do not like it?

            Gene Policinski of FirstAmendmentCenter.org writes after  the Boston Marathon Bombing “the just – released 2013 State of the First Amendment Survey by the First Amendment Center gives us reason to worry about the future because of a repeating threat to our core freedoms: fear.” The report showed that “In this year’s survey, conducted in May – about a month after the Boston Marathon bombing – 34% of Americans said the first Amendment goes too far in the rights it guarantees, up to 21 points from the 13% recorded in the 2012 survey.” 

            As in the example with the Westboro Baptist church we can not alter the first amendment to suit our needs for whatever circumstance we are facing. If America changes this Amendment every time there is a crisis, who is to say it will ever go back to normal? In the words Benjamin Franklin “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

Snowden and Journalists Have a Lot in Common

This summer, information about the Edward Snowden CIA leak came in as hot news all across America. And as more detail emerged regarding the extent to which Snowden leaked serious government secrets, the world turned its focus to American surveillance and several nations, including our allies, and started questioning American motives and reasons behind the government's spying.

In 1971, Daniel Ellsberg leaked the Pentagon Papers to the New York Times, and until 2013, the Pentagon Papers remained the largest US information leak in history. Speaking on Edward Snowden, the former CIA employee who released information about government phone and internet surveillance, Ellsberg says, "“I was overjoyed that finally an official with high or a former official with high access, good knowledge of the abusive system that he was revealing was ready to tell the truth at whatever cost to his own future safety, or his career, ready to give up his career, risk even prison to inform the American people.”

While Ellsberg has vehemently supported Snowden's decision to leak very important government intelligence information to the American public, the negative effects of his actions have been felt throughout the world. President Obama launched a huge search party once Snowden's whereabouts became unknown, and has since demanded Russian president, Vladimir Putin, to release Snowden to the fate of American hands. 

Snowden does not stand alone in his choice to reveal government secrets to the general public. Bradley Manning, an intelligence analyst working in the US army, shared government secrets pertaining to army intelligence to the international, anti-secret organization, WikiLeaks. And much like Snowden, received backlash from the American government. He has received 35 years in prison for violating the privacy of the American government under the Espionage Act.

What the American public sometimes forgets when huge stories of "whistleblowers" hits the media, is that while the government can remain angry at the now very public, private information that was released, what Snowden, Manning, and even Ellsberg were doing was exercising their First Amendment rights. When these individuals are punished or publicly condemned, the government is essentially issuing a statement that discourages the public from their ability to practice their rights as American citizens. 

This could prove even more dangerous for journalists, practicing their right as public servants to gather information anonymously and to publish the truth. This has become evident through recent arrests and intense surveillance of CNN, Associated Press, and Fox News journalists. If Snowden is tried under the Espionage Act of 1917, what is there to stop newspapers such as The New York Times and Wall Street Journal from such trials when releasing important information for the benefit of public knowledge?

In recent years, there has been increasing government discouragement of honest journalism. Edward Snowden and Bradley Manning are two Americans who, perhaps through dishonorable means, released information about private government information to very public forums that led to an uproar of anger and confusion by the American public. But without them, and without the journalists who work to aid the general public, the government could get away with acts of censorship and oppression. Snowden is just one step along the path of this "war on journalism," and the silencing of journalists is not too far in the future.  

Fear of Expression

In Nuevo Laredo, Texas, Mexican drug cartel kidnappings are preventing one of the largest Spanish newspapers on the border from publishing information freely. The newspaper, El Mañana, developed a self-censorship policy after several attacks made reporters and the public no longer safe. El Mañana resisted the censorship policy for a long time, remaining undeterred even after the cartel murdered their editor, shot up their office, and attacked with homemade grenades twice. Soon after, however, something had to change and the newspaper began self-censoring their stories—no longer including bylines and omitting details as well as names and pictures of people being quoted. The censorship has changed the newspaper and disheartened the reporters and public, who officially feel the threat of the cartel on their freedom of expression.

This one instance highlights an issue that happens worldwide, every day. Fear of a higher power constantly puts an invisible filter on people’s speech and expression. No one can obviously blame El Mañana for instating their self-censorship policy, but in doing so they also relinquished a small amount of power to the cartel. Although they still publish stories on cartel violence from larger Mexican newspapers, they are no longer able to really tell their public what is happening—which is a right and obligation that all newspapers and journalists have.   

On a smaller scale, college newspapers can feel this imposing power on their speech as well. Unlike high school newspapers, college newspapers enjoy First Amendment rights and cannot be censored. This, however, does not mean that they don’t still feel the pressure of censorship. School authorities frequently attempt to impose censorship on college newspapers—especially when it comes to controversial material that could reflect poorly on the school. Threats to revoke funding or inflict other such consequences upon the newspaper sometimes ensure that writers are kept in line and that they don’t feel too much freedom of expression.

Working for the University News, I have already witnessed such hesitation from writers on a small level, and it makes me concerned that news everywhere has a slight veil of censorship. If our journalists and our news sources don’t give us the full, detailed truth, then how do we know what we’re missing? We might legally have a freedom of expression, but imposed fear can keep us from exercising this right.  

Gay Marraige - Interpretation of Constitution Reflects Changing Society

This summer the Supreme Court made two major rulings about gay marriage. First, it said that married same-sex couples are entitled to federal benefits and second; it officially allowed same-sex marriages in California after declining to decide a case there (http://www.nytimes.com/2013/06/27/us/politics/supreme-court-gay-marriage.html?pagewanted=all). There now makes 13 states that allow same-sex marriage in America.

            One of the questions that surrounds gay marriage is whether or not it is protected by the Constitution, since the constitution protects privacy. In 2010, the “Don’t Ask Don’t Tell” policy, which banned gay men and women from serving openly in the military, was ruled unconstitutional in California (http://www.cnn.com/2010/US/09/09/dont.ask.dont.tell/index.html). District Judge Virginia Phillips said that “Don’t Ask Don’t Tell” violated the First and Fifth Amendments – the First Amendment protects us from Congress making a law that prohibits the freedom of expression and the Fifth Amendment protects us from being deprived of life, liberty, or property without due process of law. Phillips said, “The act [discriminated] based on the content of the speech being regulated.” It was believed that the act’s restriction of speech was broader than reasonably necessary to protect the government’s substantial interests, and it actually served as an impediment for military readiness and unit cohesion.

            One of the things that I have noticed about the Constitution and the Bill of Rights while taking this class is that they have wording that is general, since there was no way of predicting future issues when it was written, and so the way that they are interpreted seems to be in line with whatever the majority believes is right at that time period. I do not think this is necessarily bad, but it reflects the changes that are taking place in the world when something is ruled unconstitutional that was apparently not in conflict with the law in the past. Homosexuality is something that has been the focus of music, entertainment, and celebrity endorsement over the last several years increasingly. Since actors, musicians, and athletes are usually the leaders of our society, their pro-homosexual messages have had an influence on and reflected the way that society thinks about gay marriage issues.

Freedom of the Press: Broadcasting

As one of the five freedoms U.S. citizens are granted is the freedom of the press. This freedom is one of the fundamental aspects of our society. Without the freedom of the press, the fathers of our country would not have been able to state their opposition to Great Britain at the birth of our nation. In the past, these writers could not predict what technology would be like centuries after they had gone and what would be seen or heard by everyone with any device.

Limiting this right would bring us right back to square one. In the past, there has been several bills and written regulatory laws presented before the Supreme Court on the censorship of radio and television. It has been agreed that these two forms of broadcasting are much more readily available for anyone to stumble upon, including children. In the 1969 Red Lion Broadcasting Co. v. FCC case, it was ruled that stations would have to allow equal time on their respected stations for opposing viewpoints whether it be between political viewpoints or other hot topic issues. This fell under the FCC’s Fairness Doctrine.

This “spectrum scarcity” was used in several more Supreme Court cases including FCC v. Pacifica Foundation where stand-up comedian George Carlin’s Filthy Words monologue that was broadcasted during an afternoon program was seen as obscene. Ultimately, it was ruled that the monologue was indecent and not obscene.

The “spectrum scarcity” no longer exists. Cable-only television networks are free to air uncensored content because the public availability is to a smaller audience rather that networks like basic television channels and radio station. The Fairness Doctrine has a much more limited power. During the hours of ten p.m. and six a.m. stations have a looser framework that the can work with. This grants them more airtime for shows with profanity and graphic materials.

There is still an unspoken code of limitations referred to as the “Stealth Fairness Doctrine” that tries to enforce stations’ broadcasting equal amount of time to opposing viewpoints. Christian stations even have an issue with this because if they were to preach about what they believe then bring on a different personality with different opinions would undermine their religion and free expression.

Most of my experience with broadcasting has been on the radio. Even though our station, KSLU, is not under an FCC sanction, we still follow it. Part of this is because of our university, but the station also wants to be taken seriously. Eventually, we hope to gain an on-air frequency instead of our current online-only status. I would prefer to speak what I want more freely and especially play artists in the form that they originally intended for people to listen to.

I do understand the regulation of television more. Some scenes on programs and in movies that are on-air can be violent and graphic. The shows that do air uncensored shows are the more critically acclaimed shows because they show the full emotion and message of the content in the show.

All in all, the FCC should be more limited in the control they possess over broadcasting. Our audiences can be to conservative and sensitive. The ten p.m. to six a.m. gives broadcasting a little wiggle room, but broadcasters should not have to worry about what they express or say for their own beliefs and those they are reporting or playing.

Equal Access Act

When public school students today want to form an after-school club, they are afforded the freedom to create almost any sort of club they want. The legal basis for this is the Equal Access Act. Passed in 1984, this act requires federally-funded schools to grant equal access to all extracurricular clubs. The act states that a school which provides an open forum for one club must do so for any other club, regardless of the political or religious views of its members. In the case of religion-based clubs and gay-straight alliances, opponents have claimed that the Equal Access Act is unconstitutional because it is not consistent with the Establishment Clause of the First Amendment.

Despite the Equal Access Act, a student named Bridget Mergens from Omaha, NE was denied the right to start a Christian club at her school. Her school claimed that they had not created an open forum, and that all other clubs hosted in the school were related to various curricula. The school also argued that preventing a religious club was consistent with the First Amendment's Establishment Clause. Eventually, the case reached the United States Supreme Court. The Supreme Court ruled 8-1 in favor of Bridget Mergens. It was decided that the other clubs held at the school were in fact non-curricular and thus the Christian club was allowed in the school. While some people may think that allowing religiously based clubs in public schools interferes with the First Amendment's guarantee to freedom of religion, it is permissible when a student group creates the club and holds it outside of normal class periods. This is because the Equal Access Act serves an overall secular purpose by allowing the free and open discussion of religion and other potentially controversial topics. When the United States Supreme Court ruled in favor of Bridget Mergens, it upheld the constitutionality of the Equal Access Act.

Recently, the Equal Access Act has been frequently used in debates over Gay-Straight Alliance clubs being formed in public schools. While many public schools have tried to put a stop to GSAs due to their potential divisiveness or to prevent disruption or protests by non-members, the Equal Access Act has been used to defend the rights of students forming clubs in schools. Even when other students created disruptions by protesting the GSA in Boyd County, KY, a federal judge ruled that since the GSA members themselves were not causing any disruption, the GSA must not be discriminated against by the school.

I am in favor of the Equal Access Act because it allows students to freely discuss anything that interests them. While I would be staunchly against a public school board or faculty member implementing a religious club, I wholly agree that all clubs should be allowed if they are founded by students and do not cause any type of objective harm to other students. Censoring student speech by discriminating against certain clubs is not constitutional.

It is interesting to read up on the Equal Access Act's particulars. At my public high school, our GSA was allowed to exist but not allowed to advertise its meetings. The principal's reasoning for this was that, in the past, other students had protested the GSA and caused problems for the school. As a member, I remember thinking this policy was unfair. Now I know that it violated the Equal Access Act, because the act requires that all clubs be given equal treatment. Since the other clubs at my high school were allowed to announce meetings on the PA system and pass out flyers, the GSA should have been able to as well. It is really surprising to find out that my school did the same thing that has begun many court cases. To me, this just goes to show that the Equal Access Act is very important and that more students should be informed about it.

Whistleblower or Traitor?

Earlier this year, Edward Snowden appeared at the forefront of American (and international) media. A former National SecurityAgency employee, Snowden illegally copied documents while on the job, then leaked NSA reports, files, and data concerning the Agency’s surveillance program to the British newspaper The Guardian.

The information Snowden leaked exposed numerous surveillance programs, including the collection of both American and European citizens’ telephone records.  Following the release of information by Snowden, scrutiny towards Uncle Sam’s “programs” began.  While wiretapping of telephones is legal for law enforcement agencies, wiretapping phones of American citizens requires a warrant.  Snowden’s leaks illuminated the illegal surveillance of telephone calls by the NSA. 

However, since Snowden violated terms of the NSA’s security policy, thus breaking government laws by stealing classified information and distributing it, he is wanted on accounts of espionage and stealing.  Currently, Snowden resides in Russia, where he was granted temporary asylum.

Back in the States, people can’t decide whether to hail Snowden as a ‘hero’ or ‘traitor’.  According to the laws, Snowden is guilty of both counts, however, should he be punished for using his Constitutional rights? Under the First Amendment, Snowden’s speech is protected from governmental repression.  Should “whistleblowers” like Snowden be allowed to expose governmental policies that encroach on American citizen’s privacy without being subjected to criminal repercussions? I’m somewhat at a loss in this debate. While I believe the U.S. government should use necessary means to monitor potential threats both abroad and at home, the wiretapping of telephones certainly limits the amount of privacy to each individual. There’s always the question regarding the slippery slope; if we allow the government to monitor our phone calls, will they want to monitor our Internet, TV, or other electronic communication means in the near future?

Snowden exposed abuses of power by the government, but should he have allowed the newspaper to publish the documents? I’m inclined to think that his methods weren’t flawless; I’m positive U.S. intelligence programs were hurt because enemies know our monitoring processes.  I think that Snowden could have sought other means of calling attention within the NSA to the breach of privacy laws without publishing anything. Only as the last resort, should the smallest amount of information possible be released.

Did Snowden simply break US laws, or is the US government trying to repress his freedom 
of speech?