I was invited to post from time to time on The Berkeley Blog. I have just posted "Some basic truths and ways to think about "Free Speech." Here's the link: http://blogs.berkeley.edu/2017/10/15/some-basic-truths-and-ways-to-think-about-free-speech/
Free Speech in the Trump Era:
The View from Berkeley
By William Bennett Turner
My U.C. Berkeley course on Freedom of Speech and the Press began the week Donald Trump was inaugurated and ended on the day Ann Coulter was supposed to speak on campus. When I told people what I was teaching this semester, the reactions were “Oooh, that’s timely!” and “Essential these days!” My pat response: “It always is.” Trump may have awakened interest in free speech issues, and changed the conversation about who is demanding the right to speak, but he can’t change fundamental First Amendment rights.
He has made some ominous threats. During the campaign, he promised to “open up the libel laws” so “we can sue [newspapers who publish a false hit piece] and make lots of money.” Consistently attacking the mainstream press, Trump has called the news media the “enemy of the American people” and asserted that “reporters are among the most dishonest beings on earth.”
After he was elected and someone burned a flag on a Massachusetts college campus, he said (in a 3:55 a.m. tweet), “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail.”
The day after U.C. Berkeley cancelled a speech by right wing provocateur Milo Yiannopolous because of a riot, Trump tweeted: “If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view – NO FEDERAL FUNDS?”
On the other hand, he has said some things that you may find distasteful but in fact favor free speech. His use of Twitter, for example, is an unprecedented direct communication from president to people, not filtered through advisers, spinners and the news media. Never before have the people had such direct access to what the president is thinking and saying. That’s good, even if his ideas are frightening.
And his sneering rejection of “political correctness” actually favors free speech. He claims people should be allowed to say crudely insulting things demeaning racial, religious, and ethnic groups. Such politically incorrect name-calling is in fact protected by the First Amendment. Indeed, Trump’s improvisational and ignorant insults themselves inspire lively political speech. It’s nearly impossible these days to avoid talking politics. Trump unwittingly has given new life to the venerated First Amendment principle that the remedy for speech that you fear is not suppression but more speech, and for lies, truth.
What has he actually done about free speech? Well, he excluded some reporters he was unhappy with from a press briefing, and he decided to withhold White House visitor logs that identify the lobbyists, CEOs, and business cronies that he secretly welcomes there. There is, alas, no First Amendment right of access to government facilities (like the White House), or government information, and no president can be compelled to grant interviews or hold press conferences. It is true, under a case decided during the Reagan administration, that presidents can’t arbitrarily exclude certain disfavored reporters from press conferences. But presidents can choose favorite interviewers and ignore the questioners and questions he fears.
Fortunately, as president there is very little Trump can do about actually suppressing speech he doesn’t like. For example, he can do nothing to change the libel laws he complains about. Libel laws are state laws; there is no federal libel law. The president has no power to order states to make it easier to bring libel suits. Nor can he change the First Amendment, which the Supreme Court interpreted to bar public officials and figures from claiming libel unless they can prove both falsity and “actual malice.” Even Neal Gorsuch, Trump’s Supreme Court nominee, admits that New York Times v. Sullivan is “the law of the land.”
Similarly, there is nothing Trump can do about the Supreme Court decision three decades ago holding that burning the flag as a means of political protest is “speech” protected by the First Amendment. The late Justice Antonin Scalia, whom Trump identified as his model justice and whom Gorsuch reveres, voted with the majority in that case.
But Trump has influenced the First Amendment conversation -- shifting who is demanding “free speech!” from dissidents and the dispossessed to his conservative ideological comrades, the Milo Yiannopolouses and Ann Coulters of the world and their followers. Nowhere has this shift been more visible than on the U.C. Berkeley campus. In the Sixties it was students who claimed free speech rights to assail the establishment, oppose the Vietnam war and demand civil rights. Now it is conservatives claiming the right to bring in speakers whose Trumpian ideas are diametrically opposed to those of the students in the Sixties: anti-immigration, anti-Muslim, anti-political correctness, “America First,” and white nationalism. It was Trump’s campaign and now his presidency that gave these ideas currency, bringing them out of the shadows and lending them legitimacy as policies he believes right-thinking Americans should embrace.
Unfortunately, the lawful exercise of free speech sometimes provokes unlawful violence. When Yiannopolous arrived to speak, his militant supporters – Trump supporters – came to town armed and spoiling for a fight with the “liberals” and students who opposed the university’s decision to allow the speech. On the other side, some “black bloc” Antifas (antifascists) also came prepared to fight and tried to prevent the speech by violently attacking the student union. The riot caused the university to cancel the speech, and Trump unfairly blamed the university rather than the Antifas for denying free speech.
After another serious confrontation in downtown Berkeley between right wing militants and the Antifas, Ann Coulter stepped forward to bring her Trumpian ideas to the campus. The university, though understandably concerned about its ability to keep the peace, agreed she could come and speak. After much back and forth about the venue, date and time of the speech, Coulter cancelled at the last moment. But the university was blamed for limiting speech.
Right wingers around the country, including Trump, loudly complained that Berkeley, the home of the Free Speech Movement, was now its final resting place. Liberals and the Antifas loudly complained that what Yiannopolous and Coulter had to say constituted “hate speech” that should not be allowed on college campuses. Few (except my students) seem to understand that there is no First Amendment exception for hate speech. No matter how bigoted and insulting the attacks on racial, ethnic and religious groups are, government can’t silence or punish speech unless the speaker intentionally “incites” -- by something he or she says -- imminent violence. The authorities have to protect the speaker, not give in to a “heckler’s veto.”
On that point, the Trumpians are correct. The slurs of Yiannopolous and Coulter are constitutionally protected. Berkeley, however, got a bad rap. The university explicitly recognized the First Amendment principles at stake and tried to accommodate the speakers and prevent violence. I can’t believe the authorities’ security concerns were pretextual and they really were trying to prevent students from hearing views the authorities didn’t want them to hear.
It’s sad to see the iconic home of free speech – the Berkeley campus – unjustifiably held up as the Exhibit A of speech suppression. I doubt the Berkeley troubles would have occurred had there been no Trump campaign or presidency. Maybe Trump will have boosted enrollment in my course for next year, but he can’t do away with the First Amendment fundamentals I hope to get my students to understand and celebrate.
William Bennett Turner teaches First Amendment courses at the University of California, Berkeley, and is the author, most recently, of Free Speech: Supreme Court Opinions from the Beginning to the Roberts Court (2017).
An old piece I wrote was just reprinted in Table Talk from The Threepenny Review. It's a whimsical account of dreams about conversations with famous people, including a bunch of presidents, General DeGaulle, Walter Cronkite, and others. The Table Talk compilation was published this week by Counterpoint. I'm in pretty fast company with other authors like Robert Reich, Mark Morris, Greil Marcus and, of course, editor Wendy Lesser.
I just published an op/ed piece on Berkeleyside, on the biggest votegetter in the election.
Here's the link: http://www.berkeleyside.com/2014/11/12/op-ed-berkeley-overrules-citizens-united/
Leakers of the World Unite
William Bennett Turner
(The scene: Late 2014, the mess hall at the federal prison in Fort Dix, New Jersey. Edward Snowden, inmate No. 14-1357, cuts the line, maneuvering to sit with Julian Assange, inmate No. 14-1359. The posted menu for the day features borscht and empanadas. Both choose peanut butter and jelly. Not having met before, they sit side by side at the metal table. The following is a transcript of their conversation, surreptitiously recorded by federal authorities and leaked to the author.)
Assange: Snowden, you idiot. You don’t understand the craft of leaking. You snitched on yourself. Like Manning. If you thought that stuff was so important you should have used WikiLeaks encryption, not talked to Greenwald, and they never would have known it was you.
Snowden: The NSA broke your encryption a long time ago. Actually, I’m amazed to see you here. How did they catch you?
Assange: I couldn’t stand to eat another empanada. I sneaked out of the [Ecuadorean] embassy to a pub, disguised as Benedict Cumberbatch. The video surveillance at the pub – it’s all over London -- picked me up when the waitress came on to me. She sounded Swedish, and I ran out without paying. A bobby stopped me and the wig fell off. You could have seen the video at the NSA if you had hung around a bit longer.
Snowden: Yeah, well, we have a lot in common: we showed Americans what their government is really up to, we hid out in weird places – try the so-called couches in the Moscow airport -- and martyrdom.
Assange: But, chump, the Espionage Act got you because you contracted with the NSA, took an oath, got paid by the government, and then betrayed your trust. You expected them to treat you like a savior? I never made any promises, had no security clearance, didn’t live in the U.S., not a citizen, and had no duty to keep anyone’s secrets. I am the Fifth Estate. When does your biopic come out?
Snowden: They haven’t decided the title yet; it’s either The Trickle or The Deluge, and they’re still dickering with Justin Timberlake (sounds like Cumberbatch) about playing me. And don’t get on your moral high horse in here. I told the people what they needed to know and the government was hiding. They didn’t need to know the names of the poor shlubs who cooperated with the U.S. in Iraq, the ones you exposed. I did it to wake people up; you did it because you could. Anyway, what, exactly, are you doing time for?
Assange: Not telling.
Snowden: I thought you were all about transparency.
Assange: The government’s, not mine. I’m the decider about who knows what about me.
Snowden: I heard they got you on the Espionage Act too.
Assange: Yeah, you nitwit, but I’m gonna win my appeal, because I’m like the New York Times in the Pentagon Papers case, and you’re not. You’re like Ellsberg. No publisher has ever been charged under the Act.
Snowden: If they think we’re such a danger to national security, why do they put us in a minimum security prison?
Assange: No laptops. We don’t have access to secrets anymore. We went from access to everybody’s secrets to access to none at all. We’re harmless eunuchs. Maybe we could get a laptop smuggled in in a cake; instead of a file, we’d have files. Hey, who’s that new guy just came in, who actually took the borscht?
Snowden: That’s James Risen, the Times guy who refused to testify and finger a CIA leaker. He’s in for committing journalism. He actually interviewed me by what he thought was “encrypted online communications.” That’s how I got caught.
Assange: Speaking of journalism, with no laptop, what are you reading?
Snowden: Sartre’s No Exit.
Assange: Oh, yeah. Hell is the other people you have to do your time with.
Snowden: That’s us. Hey, maybe we can be cellmates.
(Guard: “Chow time’s up!” The inmates leave, walking single file.)
William Bennett Turner teaches First Amendment courses at the University of California, Berkeley, and is the author of Figures of Speech: First Amendment Heroes and Villains.
From Politico.com, August 21, 2013:
Here's my op-ed on the Supreme Court's recent "indecency" decision: http://truth-out.org/opinion/item/10044-judicial-squeamishness-and-hypocrisy?newsletter
I published an op-ed piece in the New York Times on February 20, "Is There a Right to Lie?" It's about the liar case being argued in the Supreme Court this Wednesday. Here's the link: http://www.nytimes.com/2012/02/20/opinion/is-there-a-right-to-lie.html?ref=opinion
Letter to the Editor of the New York Times:
"Executions Should Be Televised" (Sunday Review, July 31, 2011) is somewhat naive. I did the only case ever tried about televising executions, in federal court in San Francisco in 1991. While the response to a televised execution would not be monolithic, I assume televising executions would be degrading to all, participants and spectators. But the only thing worse than televising executions is allowing our government both to continue to carry out capital punishment and to prohibit the people from watching.
William Bennett Turner
VIOLENT VIDEO GAMES SMASH COURT'S IDEOLOGICAL LINEUP
William Bennett Turner
July 10, 2011
As each new medium of communication has come on the scene -- from dime novels to movies, comic books, television, music lyrics, the Internet, and now video games -- government has attempted to shield America’s children from its corrupting influence. Every attempt has failed.
On June 27, the Supreme Court decided that a California law prohibiting the sale of violent video games to minors violated the First Amendment. Shielding kids from exposure to extreme violence presented a contentious issue. But rather than the usual 5-4 conservative-liberal split, the 7-2 vote divided the Justices in ways few could have expected.
Justice Antonin Scalia, politically very conservative, wrote the majority opinion, joined by three “liberals” plus Anthony Kennedy, politically conservative but the strongest First Amendment voice on the current Court. Two other rockribbed conservatives, Joseph Alito and Chief Justice John Roberts, agreed that the law was invalid (too vague) but disagreed with Scalia’s analysis. Justice Clarence Thomas parted company with his conservative soulmate Scalia and dissented. Stephen Breyer, who usually passes for a liberal, also dissented. What’s going on here?
James Madison may have been surprised to learn that the First Amendment protects not just political speech but popular entertainment. Noting that protected fiction, plays, movies, and now video games all communicate ideas (using characters dialogue and plot), Scalia said “it is difficult to distinguish entertainment from politics, and dangerous to try.”
So, applying standard First Amendment analysis, Justice Scalia found that the state law wasn’t carefully tailored to serve a compelling government interest. He said the law was underinclusive in that the state couldn’t control kids’ exposure to violence in Saturday morning cartoons, television, movies, books or even fairy tales (noting that Grimm is sometimes vividly “grim”), and Scalia said with characteristic sarcasm that California was “perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK.” Scalia clearly didn’t think playing violent video games seriously corrupted American youth.
His usual conservative ally Joseph Alito strongly disagreed. Alito did his own research into some of the most notorious games and found the violence “astounding.” He noted that “victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces….Blood gushes, splatters, and pools.” Alito revealed his personal revulsion at the immorality taught by some of the games: “There is no antisocial theme too base for some in the video game industry to exploit,” pointing to games allowing the player to reenact the murders at Columbine and Virginia Tech, the assassination of President Kennedy and engage in ethnic cleansing by choosing to “gun down African-Americans, Latinos, or Jews.”
Scalia acknowledged that “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.” But he said these differences are not constitutional ones: “Justice Alito recounts all these disgusting video games in order to disgust us – but disgust is not a valid basis for restricting expression.” Neither is the fact that some of the games teach immoral lessons (it’s fun to kill innocent people or maim those unlike you). It’s likely that both the California Legislature and Justice Alito were animated more by their moral objections than by the prospect of actual harm caused to young gamers.
Justice Scalia also parted company with his “originalist” ally, Clarence Thomas. Scalia and Thomas say the Constitution should be interpreted according to the way the 18th Century Framers understood it, and its meaning does not evolve with changing times or technology. Thomas wrote a long, impassioned dissenting opinion, concluding that history showed the Framers would not have protected speech directed at children that their parents wouldn’t want them exposed to. Scalia brushed this off in a footnote. Without abandoning his own originalist viewpoint, Scalia said Thomas’s thesis that children don’t have “any constitutional right to speak or be spoken to without their parents’ consent” was without “historical warrant” and, in any event, the California law didn’t enforce parental authority over children’s speech; it supplanted it with government authority.
Justice Stephen Breyer, relatively liberal on most issues, is the weakest member of the Court in First Amendment cases. Breyer was concerned about some psychological studies indicating that playing violent games seems to affect kids’ feelings of aggression, and was reluctant to say the state legislature couldn’t rely on them. He acknowledged that no one has shown any causal effect between playing the games and actual aggression, and that many studies contradict the ones he dug up. As usual, Breyer was too willing to give government the benefit of the doubt. That’s always dangerous in a First Amendment case.
How to explain the scrambling of the Justices’ usual political leanings? These hard First Amendment cases, presenting clashes of free speech with other societal values, have little to do with partisan politics. Rather, they concern one’s tolerance for expression that really disturbs many people, and one’s trust in government to make sound judgments about what’s good for us. Unwillingness to accept offensive, unsettling speech, and faith in government’s ability to sort out worthy from unworthy speech, are the end of free speech. The video games decision is a good reminder of this.