Janesville34.1°

First Amendment disputes take no summer vacation

Print Print
Gene Policinski
August 7, 2010

There’s no summer slowdown when it comes to First Amendment issues.


From a judge willing—if only for a time—to throw “80 years of First Amendment jurisprudence on its head” with her court order, to a congressional attempt to exempt depictions of animal cruelty from free-speech protection, to leaks of secret documents that may threaten national security, to protests over Islamic centers and mosques—well, disputes touching on the amendment’s five freedoms are as hot as August weather.


Washington, D.C., Superior Court Judge Judith Bartnoff issued a temporary order July 23 forbidding the National Law Journal from publishing information it had obtained legally regarding a Federal Trade Commission investigation. The judge earlier had ordered sealed a variety of information in the case—but some of it mistakenly remained available to the public on July 15, when the newspaper found it in court files.


Several news organizations immediately challenged the order as prior restraint, noting that Bartnoff was ignoring not only decades-old legal precedents, but also a free-press principle dating to the nation’s founding. The news organizations quoted former Supreme Court Justice Potter Stewart’s pithy 1975 observation on prior restraint: “As far as the Constitution goes, the autonomous press may publish what it knows, and it may seek to learn what it can.”


Others noted that even in high-profile cases such as the Pentagon Papers, the Supreme Court refused to block publication of information already in the hands of journalists. On July 30, Bartnoff lifted the gag—avoiding an appellate confrontation, if not the heated criticism.


On July 21, the U.S. House fashioned a measure it hopes will replace a 1999 law that banned so-called “crush videos,” which show small animals being maimed or killed. In an April ruling hotly criticized by animal-rights groups, the high court said the original law was too broadly worded, and rejected arguments in favor of creating another exception to free-speech protections, similar to that for child pornography.


The release by the online archive Wikileaks of tens of thousands of once-secret documents about the war in Afghanistan prompted a response by supporters of a bill that would protect journalists from having to reveal confidential sources in federal court. A Senate vote is being urged this fall on the proposed “shield law.”


In the wake of the massive “document dump,” shield-law proponents will amend the bill to exclude from its protection such mass disclosures on websites. That change seems sure to provoke another hot debate in press circles on the definition of a journalist or news organization.


Critics of the shield bill have said it would endanger national security by protecting those who leak sensitive material to reporters. But the Wikileaks controversy has generated a new counter-argument that says document leakers—if protected—might more often turn to traditional news outlets, which in turn would be more responsible in handling the information than such nontraditional operations as Wikileaks.


Heated protests continue over a proposed Islamic center and mosque in New York City near the Sept. 11 Ground Zero, and another in Murfreesboro, Tenn. Those favoring the proposals call them a test of the nation’s commitment to religious liberty and say that to block construction is to bow to bigotry. Opponents argue that the centers could serve as terrorist-training centers, or bases from which sharia law could be promoted; that Islam is fundamentally opposed to democratic ideals; and in the case of New York, that the plans are insensitive to the grief of survivors of the 2001 terrorist attacks. Those critics vow court challenges.


The First Amendment summer heat won’t end with the season. This fall, Supreme Court justices will hear arguments in cases that pit privacy and religious liberty against the rights of speech and assembly in a case involving anti-gay protests during a military funeral. The Court also will hear arguments over a California law that prohibits the sale of violent video games to minors.


And did I mention the dispute among those looking to aid a financially strapped free press? Some say it’s inappropriate under the First Amendment for the government to provide public funding or tax breaks, ideas the FTC and Federal Communications Commission are studying.


All this First Amendment heat will continue long after Labor Day.


Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.

Print Print