Law

The University of Wisconsin Madison is right that the First Amendment protects the speech of racist idiots, but that’s not as bad as it seems

THE LEAD: My alma mater made the news this week for all the wrong reasons:

A video of a University of Wisconsin student using racist slurs and references began circulating on multiple social media platforms Monday.

The video showed a white UW student using racial slurs and expletives directed toward the Black community. Others could be heard laughing at the rant in the background of the video.

(EDITOR’S NOTE: Some media outlets have named this person and identified her as a UW-Madison sophomore. The U has only confirmed she is a student, and various other outlets have not verified her name. I couldn’t independently verify the person’s name, so I’m not using it. Restraint is the better part of valor in cases like this.)

SEE IT NOW: Here’s an “edited for TV” version of the video:

 

THE FALLOUT:

SIMPLE ANALYSIS:

  • Mnookin is right about the First Amendment and the way in which it protects even the most odious speech. Governmental agencies cannot be curtail or punish speech, with a few notable exceptions, such as if the speech contains a true threat or falls under the fighting words doctrine of inciting imminent lawless action.
  • The second scenario clearly doesn’t apply here, as she wasn’t inciting a group to do something violent. As for the first one, not to appear glib here, but unless people viewing the video could realistically believe this student could become a ghost and haunt them, while forcing them to “pick cotton” until they died, it doesn’t apply either.
  • The First Amendment provides both the disease and the cure in this case, in that the best way to deal with bad speech is through more speech.
    • The students who have written on various platforms, expressing their outrage and sadness, are availing themselves of their right to speech and press.
    • The students who gathered to let the school know they aren’t happy with this student or the school’s response are availing themselves of their right to peaceably assemble.
    • The students signing the petition that demands this kid get the boot from Badger Town are relying on the right to petition the “government” for redress of grievances.
    • This is how this kind of thing is supposed to work.

DYNAMICS OF WRITING FLASHBACK: Sadly, this isn’t the first time the blog has looked at a situation like this. In 2019, here at UWO, a student posted images on Instagram to “out” several other students who had a whiteboard filled with slurs and a swastika flag in their home. At the time, we touched base with legal eagle Frank LoMonte for a walkthrough on free expression and what was likely to happen to the students who “expressed” themselves in this fashion.

DOCTOR OF PAPER HOT TAKE: I’m not in favor of suppressing speech at any level, even when it comes to terrible speech like this. It’s not that I like the student’s speech (I clearly don’t) but I know that if we start suppressing speech based on content or viewpoint, it’s only a matter of time before someone comes after YOUR content and viewpoint or MY content and viewpoint.

Therefore, what happened is abhorrent, but the backlash that has ensued illustrates a point many people truly don’t understand when it comes to the First Amendment: Free speech does not mean consequence-free speech.

That said, here are some things to think about regarding this situation that aren’t being talked about right now:

  • The university is wrong when it says it can’t boot this kid out of school.
  • Whether the university decides to bounce this kid or not, the outcome will be the same.
    • If I had to guess here, I’m thinking the U is running clock on this situation, hoping to get to the end of the semester and then figure out its next move. I don’t like that kind of mealy mouthed approach to dealing with this, but I also understand that the U might consider it the safest way forward from a legal perspective.
    • At this point, this kid has to know there is NO WAY she’s coming back to this campus in the fall, given the fallout she’s already faced. As more places confirm her name, it’s going to be everywhere and she’s not going to be able to escape the consequences of her stupidity. Think about every time a TA calls roll in a class and all the heads turn knowingly in  her direction. Think about who the hell is going to want to be her roomie next year. She’s headed somewhere else.

KEY TAKEAWAY: As frustrating as it is for ANYONE who thinks, “How the hell can this university let this racist idiot stay here and let her racist stupidity slide?” (And, I count myself among those feeling frustrated), I think a key thing to remember is that the First Amendment works.

  • Nobody stopped her from posting her stupidity, thus, her free speech rights remained intact.
  • The free speech reaction from seemingly everyone on this side of the planet regarding her stupidity has brought the issue to the forefront in a way that is forcing people to deal with the situation.
  • The continued pressure brought to bear in reaction to this student’s stupid expression is likely to create the proper outcomes:
    • The kid is catching hell from every corner of the universe.
    • The kid is likely to be “gone” from school.
    • The school is likely to further solidify its position against people who behave like this.
    • The message of, “We’re not there yet,” when it comes to issues of race is once again highlighted.
    • In light of all of this, the university is going to have to pony up more time, resources and education to deal with this issue.

In the end, all of this is the result of speech and the protections afforded to it in this country.

Florida: Where the First Amendment goes to die…

After Monday’s post about Sen. Jason Brodeur’s bill that would require bloggers critical of Florida officials to register with the state, a good friend and journalistic freedom fighter in that neck of the woods reached out to tell me this is just peanuts, compared to what else is being proposed:

Sadly, that’s just stupid. But this is downright dangerous: Another Florida bill seeks to overturn New York  Times vs. Sullivan.
Either bill, if passed, would face immediate court challenges.
(Editor’s note: Turns out, I ended up mixing some of the things from this bill into the post from Monday about that bill, as an article I was referencing touched on both bills. As I was going through it, I didn’t realize there were TWO stupid First Amendment attacks happening in Florida at the same time. I clearly should have known better. I’ve made the edits to the prior post.)
New York Times v. Sullivan is a 1964 Supreme Court case that established the “actual malice” standard that public figures have to prove in order to win a defamation suit. It essentially gives publishers a little leeway in regard to unintentional errors that could end up in story on these folks, thus emboldening journalists to more vigorously pursue investigative reporting that could expose things public officials might not want exposed.

An opinion piece in the New York Times outlined how the bill goes beyond bumping off the actual malice standard:

The bill goes much further than this attempt to hobble the press. It makes it clear that the new defamation rules would also apply to any single “utterance on the internet,” which could mean a tweet or a Facebook post written by anyone, or “any one presentation to an audience,” which could include statements made at school board hearings and other public meetings.

In a direct attack on a key aspect of free expression, it says that whenever someone is accused of discriminating against others on the basis of race, gender or sexual orientation, that accusation is automatically considered enough to sue for defamation. Any person accused of bigotry based on sexual orientation or gender identity could file a defamation lawsuit and be virtually guaranteed of winning by saying the discrimination was based on personal religious or scientific beliefs. The penalty for calling someone a bigot would be a minimum of $35,000.

My friend noted a conversation with First Amendment advocates, who explained that media outlets have already heard that their libel insurance premiums could skyrocket or that the insurance could be canceled entirely.  In my reading of the Times’ analysis, this thing would also likely turn every social media platform in to Libel-palooza, especially give way in which even the most careful among us do or say stuff online that could qualify as defamation.

And if you’ve spent 6 seconds on any social media platform, you know most folks are about as safe and careful as a drunk bomb-diffusing expert.

If you’re thinking, “Hey, this is just in Florida. I live in (fill in a more enlightened state that prizes free expression). Why should I care?” my buddy has a pretty solid answer:

Yeah, this is just Florida, and we’re a hot mess in a dumpster fire. But if these tactics work here, they’ll surely be exported to where you live.
He’s totally right, but also it might not matter where you live if DeSantis pulls this off, because this bill will run the risk of becoming Federal law.
Here’s the obvious path this thing will go:

And that’s the goal: Take your shot while you have the odds in your favor in an attempt to kill something you don’t like and that prevents you from doing things you wouldn’t want other people to see.

This is one situation we all should keep an eye on.

I’m blogging about Florida officials. I will never register my blog with that state. Come get me, Sen. Jason Brodeur.

(Note to Florida Sen. Jason Brodeur: Nothing says, “Trust me on how to make the media work better” like being interviewed by a dude who looks like he’s about to engage in a rap battle with the protagonist from the Offspring’s “Pretty Fly for a White Guy” video. Unless, of course, it’s doing a video interview in your car outside of what looks like the most pathetic water park in Florida.)

I’m happy to report that all of the kids in my media law class this year passed their first exam. I am sad, however, to report that their knowledge of how the First Amendment works would likely disqualify them for a position in the Florida Senate, if Sen. Jason Brodeur is any indication of what passes for intellectual leadership out there:

A Republican state senator in Florida has introduced a bill that, if passed, would require bloggers who write about Gov. Ron DeSantis, his Cabinet or state legislators to register with the state.

Sen. Jason Brodeur’s bill, titled “Information Dissemination,” would also require bloggers to disclose who’s paying them for their posts about certain elected officials and how much.

This is part of a movement among numerous political figures, including Florida Gov. Ron DeSantis, who like the power that comes with political positions, but don’t like being held to any level of scrutiny by member of The Fourth Estate.

Among the 823,245,219 bad ideas in this bill, consider these key elements:

  • It argues that bloggers are essentially lobbyists, so if lobbyists need to register with the government, so should bloggers. (I spent 30 minutes trying to come up with an equally absurd comparative and basically rolled snake eyes on that one. Just imagine the dumbest comparison you can and then imagine it being made during a drunken screaming match on a “Housewives of Meth-topia” episode and you’re probably close to what I was trying to come up with.)

 

  • It would require the disclosure of payments for any posting the bloggers do, never mind for a moment that a) most bloggers aren’t paid for specific posts, (at best supported ad revenue or donations on the entirety of the blog) and b) this somehow overlooks the entire public relations industry, which would be essentially eviscerated by this kind of thing.

 

  • It seeks to fine people up to $2,500  a day for “late registration” of the blog, as outlined in the bill, which again makes no sense due to the point made above.

Brodeur and fellow backers of the bill couldn’t be more transparent in their self-interest if they were made of Saran Wrap: By creating a climate of fear among people who might be critical of these officials, these public figures can cut down on the amount of criticism they face.

That said, they face significant problems in making this thing stick for a few basic reasons:

  • It violates the essential rationale behind the First Amendment and other actions by the country’s founders. Before it declared its independence, the then-colonial state of this country operated under English laws pertaining to printing, including the rule that all presses were to be licensed by the government. The soon-to-be-a-country’s first newspaper, Publick Occurrences, was shut down in 1690 for printing without a license. Colonists realized the suppression of the press was a key way England kept its thumb on its critics,  and thus made sure the newly independent country DIDN’T license journalists for precisely this reason.
  • It violates common sense in regard to how anything works in a digital world. Let’s pretend for a minute that this thing gets passed in Florida and for some reason, we’re all sitting around for a year, waiting for the Supreme Court to do something about it. So… I have a few questions:
    • It only applies to PAID posting in regard to registration and disclosure. Does that mean I can spend as much of my time as I want calling Brodeur and DeSantis and the rest of the bill’s supporters peanut-brained, no-account, speech-suppressing ass-hats? I mean, if I’m just doing it without financial sponsorship, how am I violating the law here?
    • It’s a FLORIDA law. I read through Brodeur’s bio and was unable to figure out if this chucklehead actually understands that, unlike most physical things some politicians want to allow (carrying a gun) or prevent (ending a pregnancy), the internet doesn’t recognize state borders. Thus, I can write a blog in Wisconsin, criticizing stupidity in Florida, and people in all 50 states (and apparently Trinidad and Tobago, where I’ve apparently got exactly one really frequent reader), can enjoy the various ways I can poke holes in this bill.
    • Digital media covers more ground than this bill, so are you ready for some highly creative   fun people will have at Brodeur’s expense? I”m looking forward to some really long Twitter tirades, a “Violate a Fundamental Constitutional Liberty like Jason” TikTok challenge and something on YikYak that would make Bubba the Love Sponge blush…

So, in hopes of inspiring a generation of digital natives who love free speech and have a dark sense of humor, let’s have some fun:

This is a link to Sen. Jason Brodeur’s home page on the Florida State website. You can find a contact button there, which will allow you to tell  him EXACTLY what you think of this bill and his rather patronizing “Government Folk Know Best” approach to free speech. If you’re taking a law class, please feel free cite a particular precedent that would allow you to express yourself in a particular way. Speak the truth about a bad official, offer an opinion, participate in hyperbolic speech, present content that does not rise to the level of actual malice or anything else your free-speech-loving heart desires.

(Bonus points to the first person who redoes the Falwell Campari parody with Brodeur in it, or whoever arranges an amazing John Oliver singing extravaganza about Bob Murray that I’m not allowed to link here, but that you should definitely find on your own.)

To prove you understand the actual legal limits of the amendment, please do not engage in any fighting words, true threats or incitement to imminent lawless actions, to name a few.

To those of you who might think this approach is petty and childish, I would argue that the defense of the First Amendment in all of its forms is vital to the preservation of our democracy. Any dissent provided to rebuke those who would undercut our most basic freedoms should be embraced by all those who cherish the values that created the foundation of our country.

I guess I could also argue, “Well, he started it…”

Either way, take your shot and make your voice heard.

If Brodeur has his way, it might be the last chance you get to do any of this.

 

Scott Adams’ racist tirade leads newspapers to drop his comic strip, “Dilbert” (A free-speech primer)

The “Dilbert” website is still up and running, complete with the cartoons that were slated to run in the papers Sunday and Monday. This might be the last place on earth you can find Adams’ work after his racist tirade last week.

 

EDITOR’S NOTE: In an attempt at “less is more,” we’re trying out the Axios approach to working through some of the more “event-based” posts. Tell us what you think in the comments. — VFF

The Lead: Dilbert creator and artist Scott Adams released a racist screed on his YouTube channel last week, leading multiple newspaper chains and independent media outlets to cut ties with him and pull his strip from publication.

Newspapers across the United States have pulled Scott Adams’s long-running “Dilbert” comic strip after the cartoonist called Black Americans a “hate group” and said White people should “get the hell away from” them.

The Washington Post, the New York Times, the Los Angeles Times and the USA Today network of hundreds of newspapers were among publications that announced they would stop publishing “Dilbert” after Adams’s racist rant on YouTube on Wednesday. Asked on Saturday how many newspapers still carried the strip — a workplace satire he created in 1989 — Adams told The Post: “By Monday, around zero.”

Things got even worse for Adams on Sunday, when his distributor, Andrews McMeel Universal, publicly stated it severed ties with him.

Andrews and Sareyan said Andrews McMeel supports free speech, but the comments by the cartoonist were not compatible with the core values of the company based in Kansas City, Missouri.

“We are proud to promote and share many different voices and perspectives. But we will never support any commentary rooted in discrimination or hate,” they said in the statement posted on the company website and Twitter.

Catch Up Quickly: Adams has been slowly sliding into various danger zones since the mid-2010s.

  • In a 2011 “men’s rights” blog post, he noted: “The reality is that women are treated differently by society for exactly the same reason that children and the mentally handicapped are treated differently. It’s just easier this way for everyone.”
  • In 2017, he said in a  podcast that he supported family separations at the border
  • After the 2019 shooting at the Gilroy Garlic Festival, he tweeted an offer to anyone who witnessed it, allowing them to “set your price” on the purchase of his app.
  • In 2020, he stated that his “Dilbert” TV show was canceled after one season because he was white, adding “That was the third job I lost for being white. The other two in corporate America. (They told me directly.)”

Why You Should Care: This is another perfect example of how the First Amendment actually works and doesn’t work. We covered this when Spotify and Joe Rogan got into a tussle last year around this time.

The First Amendment does:

Prohibit the government from suppressing unpopular speech or unpopular press. City, county, state or federal officials cannot exercise prior restraint on publication or speech in almost every situation.

It does NOT:

Cover everything ever said or printed. The law has deemed some forms of speech (fighting words, words that create a clear and present danger etc.) to be unprotected. The law has also deemed some content (child pornography, for example) to be irredeemable in any way and thus not be afforded protection under the law.

Prevent the speaker (or writer) from ramifications from free expression. Free speech does not equal consequence-free speech. If you express yourself in a way that legally defames a person, you can be sued for it and lose a boatload of money, if found to be guilty. If you engage in speech or publication that leads to imminent lawless action, you can be held accountable for the damage caused and charged with certain crimes.

Stop private businesses from suppressing or punishing speech.Private institutions are perfectly capable of hiring or firing people for a wide array of reasons. In the case of Scott Adams, the publications that once paid to run his comic are choosing now not to. That’s not censorship, a violation of the First Amendment or even “canceling” someone. Adams has the right to find other venues for his thoughts and artwork, of which he noted on Twitter he plans to avail himself. These publications can choose to run “Peanuts” in perpetuity instead of ever letting “Dilbert” back in the paper. Both of these actions are completely legal and in no way violate the First Amendment.

Force other people to listen to you or be happy about what you say.  Constitutionally speaking, Scott Adams can stand on a street corner and scream his theories about “Black People, Hate Group” into oncoming traffic. That doesn’t mean other people have to enjoy his blather. They have the right to shout him down, ignore him or scream about how “Dilbert” has really started to suck lately.

Promote “cancel culture.”  As we noted during the Joe Rogan debacle last year, the thing about the First Amendment is that it’s essentially content neutral. You want to tell people you hate dogs, that’s fine. You want to tell people you love dogs, that’s fine. You want to tell people you want to eat dogs, that’s fine. It’s gross and you’ll likely be home alone a lot on weekends, but it’s not against the law.  With the legal exceptions outlined above (and a few others), the type of speech doesn’t really play into whether that speech should be “free” or not.

It’s important to understand that free speech was always supposed to work this way, in which bad or dumb speech got knocked on its keester by good or smart speech. The whole concept of a “marketplace of ideas” is to give everyone a chance to speak so we could pick out the best ideas and use them as we saw fit. The ones that were dumb got discarded and the people who proclaimed those dumb ideas could either stick with their dumbness and be alone or come around to better ways of doing things and be part of those better ideas

CLASSROOM EXERCISE: Find recent examples of how public or private enterprises have dealt with unpopular speech or press. Follow the basic “5W’s and 1H” approach to outlining the situation (who was involved, what did they say, when/where did they say it, how did this shake out etc…). Then, discuss the ways in which this is similar to and different from the Scott Adams situation. This could be in regard to the speech taking part in a public institution, which affords speech more protections, or the topic at hand, or anything else. Try to come up with a sense of what kinds of patterns exist in how this speech is dealt with and if/how the person who created that speech eventually dealt with the situation (apology, bounced back years later, still living in an undisclosed location).

In honor of Student Press Freedom Day, here are a few tips on gaining access to public records (A Throwback Post)

In honor of Student Press Freedom Day, today’s throwback takes a look at how to get important public records released when folks in power are reticent to do so. The folks at the Student Press Law Center have a number of great things happening today, including open virtual sessions with Mary Beth Tinker (of Tinker v. Des Moines) and Cathy Kuhlmeier (of Hazelwood v. Kuhlmeier).

For more on these and other events, check out this link.

Now, on with the show…

 

A few tips on how to fight the good fight for open records

Open records and open meetings laws are among some of the most powerful tools available in trying to figure out what is really going on with many public institutions. Many big stories come out of open record requests and document digging. My favorites include the Journal-Sentinel’s “Cashing in on Kids” series, which looked at the way some people were gaming the state’s childcare system, and a series the Sun-Sentinel did years ago on deaths associated with plastic surgery.

Student journalists are often doing some great work in this regard as well. The Kentucky Kernel at the University of Kentucky has been locked in a protracted legal battle regarding the release of information pertaining to sexual assault allegations against a professor. Students at Duquesne clashed with student government officials about the publication of budget information lawfully obtained in the course of a public meeting.

(In the spirit of full disclosure, the paper I advise, the Advance-Titan, is currently engaged in a legal fight over the release of documents pertaining to a professor who was removed from his teaching duties in the middle of last semester. The rub here is that the university believes it SHOULD release the documents, but the professor has filed suit to prevent this from happening. A court ruled in the paper’s favor, but the professor has appealed.)

Open records requests are great tools because while people can deny things or decline to comment on issues, documents are pretty much the unvarnished reality in black and white (if you’ll pardon the pun). Here are a few recommendations for you if you are taking your first steps into this area or you are a pro at this and want some validation:

  • File frequently: Much like any other mechanism or muscle, open records efforts don’t work well if the system has atrophied. The more of these requests people see, the more likely they are to know how to address them properly. This doesn’t mean turn your record keepers’ office into a paper dump every day, but consider doing a couple requests a month to see what you can find and to get the offices you want to use used to how this works.

 

  • Follow up: States have various rules pertaining to how long they have to get back to you or to fulfill your requests. In some cases, they spell this out while in other cases it’s “as soon as reasonably possible,” which is akin to when your parents used to say “We’ll see” when you were 6 years old asked if you could get a pony or a rocket ship. As the deadline draws near, check back via phone or email with the record keeper to see where your request is.

 

  • Don’t back off: When people tell you “no,” that doesn’t mean you are done. In some cases, people will say no for no good reason. Again, the answer has to be rooted in law and completely explained. This can’t be like when you were in high school and you asked for something and your parents just said “NO!” and when you asked “Why?” they answered “Because I’M A PARENT! That’s WHY!” Maybe mom and dad could get away with that but public officials can’t. Make sure the law is clearly stated and that they aren’t trying to snow you. (One open records case we dug into found the university’s lawyer telling us that they didn’t have to produce the documents under some obscure Indiana state law. It turns out they basically were trying to assert that information they wanted to share with the entire campus, but not the newspaper, was an “internal memo” not meant for public consumption. The state arbiter eventually ruled in our favor, but it was because we pushed the issue and didn’t take the first “no” for an answer.)

 

  • Ask for help: Students often feel they get the shaft on this kind of stuff because the state, the university or whatever public institution has resources beyond their reach, including access to legal advice. If you can’t afford Ramen and Diet Coke at the same time, how the heck are you supposed to afford a lawyer? The answer is that the Student Press Law Center can offer you some assistance. They have experts on duty to give you free advice on how to proceed. They can also arrange to get you a lawyer in some cases to help you pursue your quest. (Again, disclosure, they’re helping our paper out in this case and I’ve chipped in to them on more than one occasion.) You can find the group’s website here. It’s full of all sorts of great information, including how to file a request, what states are doing what  in regard to the law and stories about students fighting the good fight for open access to stuff. It’s worth a read.

Based on a true story = We made up some stuff

Amazon spent somewhere in the neighborhood of $14 million during the Super Bowl for a minute-long teaser trailer of “Air,” a movie that tells the story of how Nike came to land Michael Jordan as a client. The Ben Affleck/Matt Damon flick follows a familiar trend these days, as it is “inspired by true events,” which is just a fancy way of saying, “We made up a bunch of stuff.”

Movies like “Elvis,” “Blonde,” and “I Wanna Dance With Somebody” have seen varying levels of post-hoc fact checking that call into question certain parts of the films, with film buffs rebuffing these concerns as mere “dramatization of controversial and contested historical events.” Still, these situations are small potatoes when compared to how some films and limited series have taken liberties with reality.

“Winning Time,” HBO’s look at the late 1970s/early 1980s rise of the L.A. Lakers, created massive amounts of controversy with the way in which it played fast and loose with the truth. Given the relatively recent era in which the events took place, the degree to which sports information is retained and a quality text from which to draw, it seemed almost purposeful that the series got so many things factually wrong, including places, dates, opponents and scores. This isn’t even accounting for how the athletes, including Magic Johnson and Kareem Abdul-Jabbar , publicly denounced the way in which they were portrayed.

Even more, Jerry West and his legal team have demanded an apology and retraction for the way in which the series portrayed the Laker legend, noting that the producers engaged in “legal malice.”

The New York Times did a deep dive on the cottage industry that has streaming services building mini-series around actual events, but then jazzing up reality to make life seem cooler than it was. The piece cites West’s portrayal as a “rage-aholic” as one of the more egregious cases of taking liberties with reality. It also points out that Linda Fairstein, the prosecutor in the “Central Park Five” case, is currently engaged in a lawsuit against HBO for its portrayal of her in the series “When They See Us.”

The defamation attorneys the Times quoted made it clear that these cases aren’t always easy to win, because the First Amendment does provide folks with the ability to create fiction based on true people. However, there are limits to this kind of thing:

Sometimes disclaimers are enough to protect a studio from legal liability, especially if they are prominently displayed in the opening credits and offer detail of what has been fictionalized — beyond a generic acknowledgment such as “based on real events,” legal experts say. The First Amendment offers broad protections for expressive works like film and television productions that depict real people by their real names.

But if someone can convincingly claim that he or she was harmed by what screenwriters made up, that is grounds for a strong defamation suit, said Jean-Paul Jassy, a lawyer who works on media and First Amendment cases in Los Angeles.

“A disclaimer is not a silver bullet,” he said.

This is in some ways akin to the way courts have afforded opinion pieces and reviews protection under the fair comment privilege. This allows writers to provide “pure opinion” that cannot be proven true or false without fear of falling afoul of defamation laws. That said, merely stating something is opinion isn’t a silver bullet either.

If you say, “In my opinion, Vince Filak is a lousy professor,” it falls into that opinion realm. It’s stated as such and there’s no way to define “lousy” so that a court could determine if I fit that definition or not. Plus, in defamation suits, the plaintiff (in this case, me) would have to show harm: Did I get fired? Did my classes shrink to the point I had to teach Medieval Basketweaving to maintain the course load in my contract? Did a group of random professors follow me around and mock me to the point I needed therapy? Probably not, so I’m not going anywhere with this.

However, if you say, “In my opinion, Vince Filak stabbed a student in the face with a fork during his 8 a.m. Writing for the Media Class on Feb. 20,” now you’re in trouble. It’s not an opinion, for starters, as we can prove it either happened or didn’t happen. It’s accusing me of a crime, which furthers my case. Plus, if that thing gains steam, I’m likely to get fired.

Writers, editors, producers and directors have always taken SOME liberties with reality when it comes to how they portray real people in fictional or semi-fictional stories. What makes this recent set of efforts more concerning is the degree to which they are bending the truth and the ways in which the fictionalization has the ability to warp public perception of real people in some harmful ways.

As for me, I’m looking forward to “Air” for the bad 1980s clothing and the Affleck/Damon banter that most of their collaborations pull off quite well. I’m also looking to see if anything gets dinged on a fact check, especially because, as anyone with any experience with Michael Jordan will tell you, he’ll take it personally.

NewsNation Reporter arrested at an Ohio press conference for doing a live shot

EDITOR’S NOTE: In an attempt at “less is more,” we’re trying out the Axios approach to working through some of the more “event-based” posts. Tell us what you think in the comments. — VFF

The Lead: NewsNation reporter Evan Lambert was arrested at Ohio Gov. Mike DeWine’s press conference on Wednesday after law-enforcement officials said he should not have been doing a live shot while the governor was talking.

EAST PALESTINE, Ohio — While Gov. Mike DeWine and other local, state, and federal officials were announcing the lifting of the East Palestine train derailment evacuation order on Wednesday, a reporter at the briefing was taken into custody.

The reporter, identified as Evan Lambert of NewsNation, was apparently trying to do a live report as the news conference was taking place inside the gymnasium at the East Palestine Elementary School. Video captured by 3News shows law enforcement surrounding Lambert and ordering him to leave.

Short Recap:

See it: The Ohio State Highway Patrol released the body-cam footage of the arrest, which starts in the gym and continues for several minutes after Lambert is led away:

 

Fallout: NewsNation condemned the arrest immediately, with multiple other groups, including the Society for Professional Journalists and the East Liverpool/Wellsville NAACP Chapter, issuing statements that condemned the way Lambert was treated.

The police issued a statement as well. I won’t say it’s totally self-serving crap, but I will say if you watch any of the video versions of what actually happened and read this press release at the same time, you will find limited congruity:

Dynamics of Writing Flashback: We had a similar incident a number of years ago that we covered on the blog, with journalist Alex Crowe explaining how he was arrested covering a protest in Milwaukee. At least the Milwaukee Sheriff’s Department had the good sense to release him at the scene instead of marching him off to jail.

Key Takeaway: The First Amendment protects the freedom of the press, but not freedom from people who are in power and choose to take matters into their own hands. In this case, Crowe’s case and other similar cases, officials can get bent out of shape because they don’t like the way we’re doing our jobs, so they overreach and do stuff like this. In short, you shouldn’t end up in jail because of something like this, but you need to be prepared for it all the same, unfortunately.

CLASSROOM EXERCISE: Watch the bodycam footage as a class and discuss the incident, putting yourself into the shoes of the reporter (or the officials if you are so inclined). At what point would you have decided to back down, or would you have at all? What issues do you think played a role in this arrest, based on the footage and the statements issued by the various organizations cited above? Also, would you be willing to go to jail in a situation like this?

MAGA hat is protected speech, appeals court declares

When is a hat more than a hat? When free-speech issues are involved.

 

EDITOR’S NOTE: In an attempt at “less is more,” we’re trying out the Axios approach to working through some of the more “event-based” posts. Tell us what you think in the comments. — VFF

The Lead: The ninth-circuit court of appeals in January ruled in favor of a teacher who wore a red “Make America Great Again” hat to his school’s racial bias and sensitivity training. The court found that wearing the symbol of Trump America was protected speech:

Ultimately, the events of that week led to the Wy’east Middle School principal resigning and to Dodge pursuing legal recourse. Last week, the 9th Circuit Court of Appeals ruled in Dodge’s favor, deciding that displaying the hat as he did was speech protected by the First Amendment.

The appeals panel determined that “while some of the training attendees may have been outraged or offended by [Dodge’s] political expression, no evidence of actual or tangible disruption to school operations had been presented.”

Short Recap:

  • Dodge wore a MAGA cap to the event, took it off before things started and just kept it near him.
  • In response to complaints, the principal told Dodge to “use better judgment” in regard to wearing the hat. He wore it the next day and teachers started freaking out, texting the principal to do something about it.
  • She did, Dodge stated in court filings, as she called him a number of unsavory names and told him he was being insubordinate. If he wore the hat again, he was told, he should bring his union rep.
  • School board meetings, resignations and eventually the lawsuit followed, with Dodge winning the key point that his First Amendment rights were violated.

Key Takeaway: The bar for suppressing First Amendment rights in most situations is pretty high. The Amendment is there to protect ALL speech, especially the speech people DON’T like. Unless we’re talking about imminent threats or child porn, courts are usually going to favor the speaker, not the suppressor.

Doctor of Paper Hot Take: According to the professor who ran the event stated she was “traumatized” by the hat, while some teachers cried or complained that the hat “triggered” them. Really? A hat can do all that? And I thought the sorting hat at Hogwarts was amazing.

I’m sympathetic to people who feel speech has harmed them, which is why even though I support the concept of free speech, I find speech like that of the Westboro Baptist Church reprehensible. In this case, though, Dodge’s speech didn’t rise to the level of threat or obscenity. We can argue if he should or shouldn’t have worn the hat, but that’s ethics, not law.

Statistic of the Day: According to Trump campaign officials, more than 1 million licensed versions of the hat were in circulation four years ago. Add four years and the knock-off market to this and it’s impossible to imagine a world in which these people wouldn’t have seen one before.

CLASSROOM EXERCISE: Put yourself in the position of the principal or of Dodge and talk about how you might have handled this situation differently to avoid the lawsuit. Think  about ways in which you could balance the concerns some of the participants had with the First-Amendment rights of the individuals.

Creative Discrimination: A good look at the First Amendment and anti-bias laws related to business

The Supreme Court is set to hear the case of 303 Creative v. Elenis, which touches on the issue of what the government can and cannot compel businesses to do in relation to discriminatory actions against specific groups in society. The suit will assess whether the Colorado Anti-Discrimination Act violates the First Amendment rights of website creator Lorie Smith , who wants to expand her business to include wedding websites, but said she will not design them for LGBTQ couples.

In this case, the argument attempts to rely on the speech aspects of the amendment, arguing that the work Smith would do could be considered “artistic expression.” Therefore, according to Smith, any law that forces someone to do nor not do something with “artistic expression” in it would violate the First Amendment.

As is usually the situation, this case isn’t about one website or one wedding cake, but rather the degree to which discrimination can be cloaked in the cover of an individual’s right to free expression. Although the courts have allowed the “expression” protected under the First Amendment to go far beyond speaking and printing newspapers, they have also put limits on what could be protected here. Child porn, true threats and other forms of “expression” have been deemed to have no value, and thus receive no protection.

Courts have also ruled that time, place and manner restrictions do not violate the First Amendment, as long as they don’t disadvantage a particular point of view. My favorite case involved a Wisconsin worker who would drive past the governor’s house every morning, flip the bird at the house, yell “RECALL WALKER!” and honk his horn. The courts split the baby on this one, allowing him to yell and gesture, but the horn was considered a bridge too far.

Trying to sort out what does and doesn’t get covered, or how courts tend to view these things can get really complicated. David Cole, the national legal director of the ACLU, has an opinion piece in the New York Times which picks through the issues of expression and discrimination and how cracking down on the latter, doesn’t mean we violate people’s rights to the former. To whatever degree you side with either group, Cole’s piece is worth a read, as it is both straightforward and clear in its explanation of how and why these two concepts can coexist.

Student Press Law Center to see a change at the top

Student Press Law Center Executive Director Hadar Harris announced Wednesday that she planned to leave the organization after five years to begin a consulting firm that develops human rights-based organizational transformation. In a “personal note” posted to the SPLC website, she outlined the myriad changes the organization saw since she walked into the office in 2017:

We held the first national trainings and summer leadership programs for advocates to learn new skills and develop strategies. We placed students in the center of our work and now are supporting grassroots groups in nearly 20 states. And as a result of that work, we got New Voices laws across the finish line in Washington, New Jersey and Hawai’i, making 16 states with New Voices protections.

We also launched a new initiative to be sure that where New Voices laws are adopted, that SPLC would work with students and administrators, school boards and policymakers to be sure that the law was understood and applied correctly. We recognized the need for accountability efforts (with the help of the SPLC Attorney Referral Network) and Know Your Rights outreach and training which we have launched in three pilot states so far. Truly transformational work.

We took a crazy idea scribbled on the back of an envelope and turned it into Student Press Freedom Day, a national day of action to draw attention to the accomplishments and challenges faced by student journalists. It’s become so successful that people now complain about the tag line!

We developed new programs like the Global Press Freedom Institute with our partners at PEN America, the Student Media Law and Policy Institute with its cool Moot Court competition, and, under the leadership of Operations Manager Alexis Mason, created SPLC in the Classroom, which zooms SPLC experts into the classroom and newsroom, significantly expanding the reach of our training and resources.

These programs have a lot of value for students and have made huge strides toward the big picture of student press freedom, for sure. However, the most important thing SPLC does, at least in my way of thinking, is during the day-in, day-out work of being there for student journalists who feel threatened and attacked for simply doing their jobs.

The sound advice and calming reassurances these legal eagles provide to students is invaluable and crucial in a time in which the press is very much under attack and people with high-priced lawyers feel emboldened to bully kids because they can. I have often referred students to SPLC with the explanation that the folks there are like “having a big friend walking with you when the school bully decides to try to steal your lunch money.”

Merely the ability to say, “I’ve contacted the Student Press Law Center and it is providing me with legal representation,” gives students confidence in their rights and gets most chuckleheads backing down quite quickly.

I could fill the internet with personal stories about how SPLC provided my students with help when someone threatened to sue our newspaper or withheld records or generally just acted like a dipstick toward us. The one I will share popped up in my Facebook memories the other day, and it literally encapsulates the value the mere existence of SPLC provides.

Seven years ago, when the Advance-Titan was in rough financial straits, a bunch of little … um… student government people decided I was to blame and tried to force me out as adviser. The newsroom kids reached out to SPLC for help and advice. The folks there wrote in on my behalf, detailing the legal issues pertaining to their kangaroo court and noting that SPLC would be watching.

At the meeting where they voted on a resolution to fire me that had about 382 “whereas” statement, the leadership was panickedly discussing behind the scenes about how a “special-interest legal group from Virginia” had somehow gotten involved. Suddenly, those little… um… people weren’t so cocksure, a reporter who covered the event told me later. They passed a resolution, but it had no effect. I stayed in place and a copy of that thing is hanging on the “First Amendment Wall” in my office.

I know dozens of other student media operations that could related reams of similar stories, which is why SPLC matters so much to us. Harris noted in her letter that the SPLC board will be working to find the next executive director between now and when she leaves in early 2023. Each time the ED position passes from one person to another, many of us in the student press community kind of hold our breath a little bit, because we know how this organization can make or break our institutions.

Each time, it seems, the organization continues to develop and grow in a positive direction that continues to serve us well.

You’re not a woke liberal commie pinko for understanding how the First Amendment actually works

A fellow instructor and friend posted this note in the wake of the latest Alex Jones judicial smack down:

I already have people telling me that Jones needs to appeal as his free speech rights are being violated. I try to explain the 1st Amendment to them but they come back at me as a liberal, socialist. left wing, college professor indoctrinating my students in WOKE, CRT and Cancel Culture.

In case you missed it, Jones lost a suit in Connecticut the other day, the result of which was a nearly $1 billion judgment against him. The root of the suit was his claims that the Sandy Hook massacre was a false-flag operation and that the parents of the kids were all liars. Strangely enough, the parents of murdered children didn’t take too kindly to his bullpucky and thus sued.

My colleague’s understanding of the First Amendment is right on the money: You can say whatever you want without governmental intrusion, but that doesn’t mean you will escape all repercussions when it turns out you’re wrong (or a no-talent ass-hat who causes significant damage to other people).

I doubt the people on the other end of his calm, rational explanation of the First Amendment will take this response any better, even though I think I’m maybe one of those things they listed above (college professor, on a good day). Still, here’s a throwback to another point in time where the misunderstanding of how the First Amendment works led people to freak out.

Another brief reminder of how “freedom of speech” actually works: Joe Rogan edition

In trying to boil down the “Joe Rogan Experience” over the past week or so, this is the best I’ve got:

2022 Joe Rogan: Nobody can piss off the world more than I can with my weird take on COVID.
Pre-2022 Joe Rogan: Yeah… Hold my beer…

Podcaster Joe Rogan and his $100 million sugar daddy, Spotify, spent the last couple weeks understanding that free speech isn’t always consequence-free speech. Rogan most recently got into hot water when it turned out he needed to apologize for dropping more than a few “n-words” into his podcasts over the past 12 years:

New York, NY (CNN)Joe Rogan issued an apology on Instagram Saturday after a compilation of the podcaster frequently using the n-word on his podcast spread widely on social media.

Rogan used the word more than 20 times in the clips from different podcast episodes, which he said were compiled over a span of 12 years. In his apology, Rogan said it’s the “most regretful and shameful thing” he has ever had to address publicly.

“I know that to most people, there’s no context where a White person is ever allowed to say that, never mind publicly on a podcast, and I agree with that,” he said. “Now, I haven’t said it in years,” Rogan added.

Rogan also addressed a video of him comparing a Black neighborhood to a Planet of the Apes movie. “I certainly would never want to offend someone for entertainment with something as stupid as racism,” he said.

If Rogan’s goal in this situation was to distract from his unfounded medical claims regarding COVID, he succeeded in the best-worst possible way. Prior to this mix-tape of racism, Rogan was spouting unscientific nonsense about the coronavirus, and medical professionals called for Spotify to do something about this:

A coalition of hundreds of doctors and public health experts have called out Spotify for allowing Joe Rogan to spread “false and societally harmful assertions” about the coronavirus and vaccination on the streaming platform that hosts his wildly popular podcast.

In an open letter published Monday, more than 270 medical professionals urge Spotify to stop “enabling its hosted media to damage public trust in scientific research and sow doubt in the credibility of data-driven guidance.” Rogan, whose show reaches an estimated audience of 11 million people an episode, has repeatedly downplayed the need for coronavirus vaccines and used his platform to flirt with misinformation about covid-19.

(Side note: How does one “flirt with misinformation?” I’m imagining a stock broker in a bad hairpiece telling some lady at a bar that he’s really Donald Trump…)

Multiple musicians including Joni Mitchell and Neil Young also put pressure on Spotify with requests to have their music removed from the streaming service, due to Rogan’s coronavirus commentary. As a result, Spotify issued a statement so broad and generic, it could easily have just said “We favor… Um… Stuff…”:

“We know we have a critical role to play in supporting creator expression while balancing it with the safety of our users,” the C.E.O., Daniel Ek, who is also one of Spotify’s founders, wrote in a public letter. “In that role, it is important to me that we don’t take on the position of being content censor while also making sure that there are rules in place and consequences for those who violate them.”

In the wake of this rolling cluster-mess, a good number of people are complaining that anyone coming after Rogan or Spotify is engaged in censorship/killing free speech. As per usual, this tends to take the form of the mic-drop argument-ender: the meme…

Truth be told, censorship and freedom of speech are often misunderstood because people think they have the right to say or write anything they want with impunity. Here’s a quick recap of how the First Amendment actually works:

It does:

Prohibit the government from suppressing unpopular speech or unpopular press. City, county, state or federal officials cannot stop a person from expressing an opinion or punishing that person for doing so. Those same officials cannot prevent a newspaper, magazine or other “press” from putting out content that might be unpopular.

It does NOT:

Cover everything ever said or printed. The law has deemed some forms of speech (fighting words, words that create a clear and present danger etc.) to be unprotected. The traditional example is that you can’t yell “FIRE!” in a crowded theater. The law has also deemed some content (child pornography, for example) to be irredeemable in any way and thus not be afforded protection under the law.

Prevent the speaker (or writer) from ramifications from free expression.The law says the government, or any of its agents, can’t prevent you from publishing a story that your university president is running a pedophile ring out of the basement of the student union. However, when that story is proven to be false, you better believe the president can sue your pants off for libel. The law protects speech, but it also protects people FROM speech in many cases, which is why we have to be careful every time we publish (or say) something.

Stop private businesses from suppressing or punishing speech.Private institutions are perfectly capable of hiring or firing people for a wide array of reasons. Joe Rogan got $100 million from Spotify for his podcasting services. If they are unsatisfied with those services, they can examine the contract and find a way to sever ties. They can tell him what they will or won’t allow under his contract in terms of speech or information.

Censorship is when a person is prevented from speaking, publishing or otherwise expressing themselves. Joe Rogan is not in that situation, even if Spotify decides to smack him around or fire him. If Joe doesn’t like whatever Spotify chooses to do, he can go somewhere else. He can complain that his speech is being suppressed (he’s technically right), but he can’t say his First-Amendment rights are being violated. Trust me, if I had a First-Amendment right to earn $100 million to talk about stuff where “I don’t always get it right,” I’d have done it by now.

Force other people to listen to you or be happy about what you say.  If there were laws against ugly speech that bothered people, Fred Phelps would have never been let out of his own house. Constitutionally speaking, Joe Rogan can stand on a street corner and drop “n-words” until he drops dead. That doesn’t mean other people have to sit by, totally entranced by this and not express their displeasure. These other citizens can try to shout him down, ignore him entirely or go to the opposite street corner and scream something else.

In the case of the COVID controversy, Neil Young, Joni Mitchell and other musicians have asked that their music be removed from Spotify if the streaming service decides to keep Joe Rogan. They have that right to ask for that change, given their displeasure over Rogan’s speech. People who think it’s unfair that the musicians are doing this can choose to speak out against this or stop listening to “Heart of Gold” or whatever. In short, you have the right to say stuff, but so does everyone else. You have a right to ignore them, as does everyone else.

Promote “cancel culture.”  The thing about the First Amendment is that it’s essentially content neutral. You want to tell people you hate dogs, that’s fine. You want to tell people you love dogs, that’s fine. You want to tell people you want to eat dogs, that’s fine. It’s gross and you’ll likely be home alone a lot on weekends, but it’s not against the law.  With the legal exceptions outlined above (and a few others), the type of speech doesn’t really play into whether that speech should be “free” or not.

It’s important to understand that free speech was always supposed to work this way, in which bad or dumb speech got knocked on its keester by good or smart speech. The whole concept of a “marketplace of ideas” is to give everyone a chance to speak so we could pick out the best ideas and use them as we saw fit. The ones that were dumb got discarded and the people who proclaimed those dumb ideas could either stick with their dumbness and be alone or come around to better ways of doing things and be part of those better ideas.

Joe Rogan is not being “cancelled” because people are telling Spotify that its service shouldn’t promote Rogan’s thoughts on COVID or support a guy who used the “n-word” at least 20 times on his podcast. That’s free speech. Spotify can say, “OK, we hear you, but screw you anyway.” That’s free speech as well. Joe Rogan can say, “I don’t care what anyone thinks. I’m going to tell people they can cure COVID by drinking a mixture of fuel oil and children’s tears, all while I read aloud from ‘The Adventures of Huckleberry Finn‘ live on my podcast.”  That’s free speech, too.

The reason why Spotify ISN’T doing that and the reason why Rogan IS repenting like a Catholic priest getting caught in a strip club comes down to money. Spotify doesn’t want to lose its listeners and thus lose revenue. Rogan realizes that it’s going to be reeeeeeaaaallly hard to find another $100 million job out there, especially since he can’t shoot twice as well as Steph Curry.

They’re not being cancelled. They’re choosing to be pragmatic.

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