Frightening: Majority of poll respondents want the First Amendment rewritten

My English Lit professor, Lloyd Dendinger (1929-2001) would be absolutely appalled to learn that a majority of Americans are okay with junking the very first amendment in our Bill of Rights.

In a poll commissioned by the Campaign for Free Speech:

51% of Americans think the First Amendment is outdated and should be rewritten. The First Amendment protects your right to free speech, free assembly, and freedom of religion, among other things.

48% believe “hate speech” should be illegal. (“Hate speech” is not defined—we left it up to the individual participant.) Of those, about half think the punishment for “hate speech” should include possible jail time, while the rest think it should just be a ticket and a fine.

80% don’t actually know what the First Amendment really protects. Those polled believed this statement is true: “The First Amendment allows anyone to say their opinion no matter what, and they are protected by law from any consequences of saying those thoughts or opinions.”

This is astonishing. Nearly 60 percent of Millennials believe that our Constitution "goes too far in allowing 'hate speech' in modern America." But even a bare minority of Baby Boomers agree--47% say 'hate speech' should be illegal, with criminal punishment from a citation to jail time.

The term 'hate speech' is subjective. If it's just an idea you disagree with, how strongly do you have to disagree in order for the idea to be declared 'hate?' If there is to be such a line, who draws it?  Is it you? Is it me?

Dr. Dendinger was a classical liberal. In his late 30's, he organized and participated in several peaceful protests over the Vietnam War. Imagine the Johnson administration's handling of a Dendinger March in 1968 if the First Amendment didn't exist or had been rewritten. Allowing state suppression of protesters who weren't violent and didn't destroy property? Ok... The Kent State massacre would have been a garden variety street scuffle. Taking to the streets would have been taking your life in your own hands.

Dendinger was asked once by his students about an op/ed opposing Ronald Reagan's ordering of the invasion of Grenada. The questioner asked if the old liberal would have agreed that some of the op/ed author's statements were treasonous enough to have been censored.

His simple response: "Perhaps. But then who will censor the censors?"

If you asked Dendinger what 'hate speech' was, he would certainly shrug and say, "It doesn't matter what I or you think it is. The only thing that matters is how you answer 'hate speech.' Try 'love speech.' "

What's ironic is that the most vicious assaults on free speech and the whole of the Bill of Rights all come from the left. They have adopted the tactics of the European far right to squash American dissent from their far left European policy ideas.

Dendinger would be disgusted.

A win for bloggers, but the responsibilities haven’t changed

On Friday, the US Court of Appeals for the Ninth Circuit handed bloggers a significant victory. A three judge panel unanimously decided that bloggers enjoy the same First Amendment rights as credentialed media. In 2011, a District Court judge decided that libel plaintiffs did not have to prove malice to prevail in a libel suit. The Ninth Circuit panel overturned that decision this week.

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The three-judge panel of the 9th Circuit Court of Appeals held unanimously that there is no difference between a journalist for a media outlet and another speaker when it comes to First Amendment protections.

The case stems from a series of blog posts published in 2010 by a woman accusing a financial advice firm of fraud and corruption. One of the firm's principals was appointed as the bankruptcy trustee to a company that had misappropriated client funds, and the woman, Crystal Cox, accused him and his company, Obsidian Finance Group, of impropriety in advising the bankrupt firm in a series of online posts.

They sued Cox for defamation. The district court ruled that because Cox did not prove her status as a journalist, Obsidian did not need to prove malice or negligence on her part to win the case.

A jury found against Cox and ordered her to pay $2.5 million.

On Friday, Judge Andrew Hurwitz wrote for the unanimous court that, especially in the age of the Internet, the distinction between traditional journalist and other speakers doesn't matter in this case.

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In its decision, the Court ordered a new trial, which means that the defendant blogger isn’t off the hook just yet. While the plaintiffs could appeal to the full court, it is likely that the case goes back to the District Court for a new trial.

What does all of this mean? It means that while bloggers should enjoy the protections of the First Amendment, there is still an overarching responsibility to exercise those rights with care; insuring that the targets of controversial “investigations” are investigated with due diligence and that the truth is told without malice.

HotAir.com’s Ed Morrissey gets it (emphasis mine):

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[It] was disturbing to see a district court get this so wrong. The media protections that have developed by legal precedent under the First Amendment must apply equally, as does the First Amendment itself. In fact, the media protections should probably apply equally to all speakers, and not just those who publish their works via paper, broadcast, or the Internet. One can make the argument that the media has to put itself in a more vulnerable position in order to function as communication sources and therefore should have more leeway, but that applies to bloggers at the very least as well as newspapers and television news outlets. It might apply even more, since bloggers are much less apt to have legal resources readily available and are much more vulnerable to intimidation.

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This is an important decision, and a win for bloggers. The core case, though, should serve as a cautionary tale. When a blogger or a reporter goes on a crusade, especially against targets who are not “public persons” (the appellate court rejected Cox’s appeal on that point), he or she had better take care to get the facts right or at least demonstrate a responsible approach to finding them.

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So true. Last week, I mentioned the troubling case of Roger Shuler and his controversial blog, Legal Schnauzer. In that post, I also mentioned the importance of ethics when it comes to speaking out about potential wrongdoing by public figures. In the case before the Ninth Circuit, the target of the blogger was not a public figure and the plaintiff lost in her effort to argue otherwise. But public figure or not, the targets of investigative reporting—be it print, broadcast or internet reporting—must not be pursued maliciously. Investigative journalism is not a crusade. It is an effort to expose the truth and demonstrating that the truth has been told is paramount to avoiding costly and disastrous litigation such as this and the Shuler case.

There is nothing in the Ninth Circuit decision that allows otherwise. While it is indeed a win for non-traditional media, it still means, as Ed suggests, that there is no freedom to go off half-cocked, with dubious or anonymously sourced information, in a crusade against someone you oppose politically, personally or philosophically. The First Amendment is indeed a shield, but it is not an impenetrable one.

You can tell the truth, demonstrate the factual nature of the story, show that there is no malice aforethought and you might not get sued for libel or defamation.

The troubling case of the Legal Schnauzer and Roger Shuler

I’m a few months late on this, but this New York Times story about the Robert Shuler situation reminded me that it’s time to weigh in.

In case you’re not up to speed, Shuler runs (or, ran) the controversial blog Legal Schnauzer, in which he has regularly accused (mostly Republican) officials of wide-ranging political corruption and on many occasions, sexual misconduct.

He had accused Robert Riley, Jr., son of former Governor Bob Riley, of having an illicit affair with Liberty Duke, a prominent Alabama lobbyist. He further accuses Republican operatives of paying Ms. Duke hundreds of thousands of dollars for an abortion and ordering her to keep quiet.

Both Riley and Duke denied the allegations and filed a defamation suit against Shuler. Shuler’s petulance and refusal to comply with court orders has landed him in the Shelby County jail. He was arrested last fall and remains in lockup to this day.

In a nutshell, an Alabama judge ordered Shuler to remove what he decided was defamatory content on the alleged affair, pregnancy and payoff. Shuler refused, was found in contempt and ordered to jail.

In the Alabama blogging community, the Schnauzer is almost universally perceived as a blog that promotes the wildest of the wild conspiracy theories. Almost no one takes Shuler seriously. It’s seen as an electronic version of your every day supermarket checkout tabloid.

But even supermarket tabloids enjoy the most basic freedoms enshrined in the First Amendment to the Constitution. What Shuler doesn’t seem to understand is that along with the freedom guaranteed by the First Amendment comes the responsibility to exercise it wisely and that failing to do so can result in very unpleasant consequences.

What the judge has apparently done with his injunction—ordering Shuler to remove the story from his blog pending litigation of the defamation trial—is what is known as prior restraint, a very carefully defined and rare situation where a judge decides that a publisher must hush until the case reaches trial. Prior restraint is almost always determined to be unconstitutional. It can only be exercised in extreme circumstances, such as preventing loss of life or preventing catastrophe.

While the Schnauzer is often obnoxious and routinely salacious, there is nothing in the case at hand that would appear to allow the judge to exercise prior restraint. It is clearly an unconstitutional overreach.

The problem is that Shuler refuses to accept legal counsel, even when offered the opportunity for the court to appoint a public defender to represent him. Shuler is a regular with the Alabama judicial system, and has almost always represented himself pro se. As the old adage goes, anyone who represents himself in a court of law has a fool for an attorney and an idiot for a client.

Predictably, Shuler has a lousy record in court. In fact, I don’t think he’s had a single significant victory. As a measure of his world view, he attributes his lousy record to conspiracy, corruption and judicial incompetence. He is his own worst enemy.

A newly barred attorney fresh out of law school could get Shuler freed based on a challenge on the prior restraint issue. But Shuler continues to decline legal counsel, insists on pro se representation, and as a result he continues to sit in the Shelby County lockup.

Remember the definition of insanity? Repeating the same effort, over and over again, and expecting a different result.

What’s troubling in this case is that it could establish a precedent in which all bloggers—in Alabama and beyond—might have their First Amendment rights seriously curtailed.

This blog has gone after several controversial issues, ranging from exposing an oil spill truther group to allegations of corruption at the highest levels of college athletics and state political actors. I’ve not been shy in this space. However, regular readers of this blog also know that I adhere to the Blogger’s Code of Ethics.

It’s not just a bunch of suggestions. The Code is set of a guiding principles. It’s so important, it’s linked right there at the top of the page.

If I go after public figures, I’ll either have my facts straight and be able to demonstrate the truth of my statements, or I will refrain from posting. I have refrained from posting many more times than I’ve gone forward with a story because I either couldn’t get someone to go on record or could not independently corroborate information provided by confidential sources.

In both of the cases I linked above where this blog went after folks, I gave the parties involved an opportunity to respond and state their side of the story. All refused, but that opportunity is necessary for honest reporting and factual presentation of the issues involved.

Bloggers do not enjoy the same protections that credentialed journalists in traditional media enjoy. I can’t have an anonymous source in a potentially defamatory story. I can’t make stuff up and publish it just because the organization or individuals involved are public figures or politicians. Along with my First Amendment rights come responsibilities. I am mindful of those responsibilities, as are 99% of other bloggers in this state and elsewhere.

Shuler doesn’t seem to get it. But that doesn’t mean the courts should be free to exercise prior restraint just because he’s not behaving responsibly. Mr. Riley and Ms. Duke have a legitimate right to have their grievance against Mr. Shuler adjudicated in a court of law. But that the court could silence an irresponsible blogger simply because the court has determined that he’s behaving irresponsibly is a dangerous step towards censorship. Even irresponsible speech is free speech, unless that speech threatens human life, national security or could lead to a manmade catastrophe.

I frankly believe that Shuler should be freed, even though I agree with virtually nothing he believes or has written. I may disagree with what he says, but I will fight to the death his right to say it.