The First Amendment Center Online occasionally posts free-expression- and First Amendment-related essays or newspaper editorials. Authors and editors may submit articles for consideration through this e-mail address. The views expressed below are those of the authors, and the First Amendment Center Online does not necessarily agree with or endorse those views.

Supreme Court needs to get it right: First Amendment does not protect animal cruelty

By Diane Sullivan, Holly Vietzke, and Michael L. Coyne
Sullivan and Vietzke are Massachusetts School of Law professors specializing in animal law. Coyne is the law school's associate dean.

As the NFL ponders permitting Michael Vick back into the league, the U.S. Supreme Court recently announced that it would decide next term whether videos that depict the killing of small animals and videos of dogfights are protected by the First Amendment. This decision is a no-brainer.

The guarantee of free speech, honored in most cases, must fall in order to protect those without a voice. Engaging in dog-fighting is a felony in all 50 states, and attending a dog fight is illegal in all but two states. Those that profit by disseminating videos of these barbaric acts of cruelty should not pretend to do so under the guise of advancing principles of free expression and free speech.

The Supreme Court will decide this issue because the 3rd U.S. Circuit Court of Appeals — in an incredibly ill-conceived application of the First Amendment — reversed the conviction of Robert Stevens, a Virginia man who sold videos of pit bulls fighting and attacking other dogs. Stevens was convicted under a federal law passed in 1999, making it illegal to sell, possess, or create depictions of animal cruelty. The court of appeals reversed Stevens’ conviction on the ground that the video was an expression of his free speech and therefore protected under the First Amendment.

Our forefathers did not intend for the First Amendment to be a shelter for promoting criminal violations. While the First Amendment does have the effect of protecting some morally offensive conduct, it does not provide a safe harbor to vicious criminal acts. Would anyone argue that the First Amendment protects the rights of a man to kill his wife and kids merely because he and his videographer also post the video on YouTube? Would anyone argue that terrorists who decapitate their victims live on the Internet find safe harbor in our First Amendment? The obvious answer is a resounding no.

In People v. Voelker, Voelker was convicted of animal cruelty after he decapitated three live iguanas on television. The Supreme Court rejected his argument that the broadcast of the event was protected speech, holding that to extend the reach of the First Amendment that far would allow anyone to avoid prosecution for criminal acts merely by videotaping them. Obviously this would create an absurd and illogical result.

Likewise, in People v. Thomason, an appeals court upheld a defendant's conviction for animal cruelty in making a “crush video.” Just as pedophiles take pleasure in viewing child pornography, “crush videos” appeal to sadistic individuals who derive sick pleasure from watching animals being tortured and ultimately killed in grotesque fashion. Although Stevens arguably did not actually commit the acts of cruelty as the defendants in Voelker and Thomason did, his commercial gain from the cruelty constitutes aiding and abetting the promotion of the crime, and he is no less guilty than one who fences stolen jewelry even if he or she did not steal the jewelry.

Opponents argue that the law would prohibit the broadcast of some events, such as bullfights in Mexico, that are legal where they occur. That may be true if the broadcast and further display of those images violates laws of other countries or states where the display of those offensive images constitutes a crime. What’s wrong with other countries or states regulating criminal activity within the borders of that country or state?

The First Amendment does not protect illegal conduct, such as pornography or obscenity. Since the First Amendment does not protect those disseminating in child pornography or snuff videos, it certainly provides no greater protection to those disseminating images depicting animal cruelty. Moreover, the First Amendment does not protect offers to engage in illegal activity on the basis that they lack social value, much like obscenity does. If the mere offer to engage in illegal activity is excluded from our guarantee of free speech, then videos, which necessarily include actual conduct, ought to be as well.

The Court has dealt with related issues before in upholding federal law and denying First Amendment protection to the distribution of depictions of a sexual nature of children, stating that, “child pornography harms and debases the most defenseless of our citizens.” First Amendment protection cannot be provided to those that commit the reprehensible act of sexually abusing children or a heinous act against a defenseless animal. While no one disputes the distinction between animal cruelty and child abuse, both victims are necessarily dependent on others for protection.

The Massachusetts animal anti-cruelty statute (chapter 272 § 77) is titled, “Crimes against chastity, morality, decency, and good order.” Massachusetts is clearly concerned about the harmful effects to society in engaging in acts of animal cruelty. So what about children who view these video depictions of dogs fighting? How will it affect them? The Rhode Island SPCA recently reported that the most critical way parents can prevent their children from developing violent tendencies is to ensure they know “that it is never acceptable to harm an innocent animal, no matter how simple the action.” It starts with prohibiting the dissemination of videos depicting barbaric acts of animal cruelty under the guise of the First Amendment.

These videos — these so called freedoms of expression — have no redeeming social value. Dissemination of these images causes harm to defenseless members of our society. Our Supreme Court cannot condone this twisted interpretation of the First Amendment. Our courts — and our forefathers’ intended meaning of the First Amendment — must speak for those who have no voice.

Posted June 2009.

I believe in a free and open society

I believe in the First Amendment of the Constitution of the United States. I believe that our Founders put the freedoms guaranteed by this amendment first for a reason, that these freedoms are the basic tenets of our society, and that without them America would cease to be. I believe that the pen is mightier not only than the sword, but than the tyrant who would wield said sword.

To borrow a phrase from Edward Murrow, we are not the descendents of fearful men. Our forefathers were not men who feared to write, to associate, or to defend causes that were, for the moment, unpopular. The pamphlets of Thomas Paine inspired Colonial citizens to take up arms against the unfair rule of the Crown. Uncle Tom’s Cabin exposed Americans to the horrors of slavery. Upton Sinclair and the muckrakers would begin things like the worker’s rights movement and food inspection with their controversial words. Never allow anyone to tell you that words don’t possess power.

And today, as our country faces uncertain times, many would tell you that it is dangerous to use our First Amendment rights, that these freedoms are somehow less important in today’s society. On the contrary. Never are these rights more important than in a time of national crisis. I would not wish in any way to make it appear that I am belittling the problems we as a nation face. But no threat, however large, is worth losing the free expression of ideas. Without this ability, everything this country stands for would be a sham; everything our ancestors died for would be in vain. A society is only as free as its minds.

John Fitzgerald Kennedy once reminded us that concealment of necessary information far outweighed the dangers cited to justify said concealment. That “there is little value in opposing the threats of a closed society by imitating its arbitrary restrictions.” Surely those words are true today.

America has succeeded in the past — and will only continue to succeed in the future — not because our weapons were better or our spirit was stronger. It was because of our freedoms, it was because of our thoughts. That is the bottom line, that free speech may be inconvenient to some, but that this inconvenience doesn’t allow governments the right to censor. And, as long as we have this little inconvenient right, we need a press corps willing to tell us the problematic facts, the truths that some may not want to hear. We thrive collectively on unorthodoxy, eccentricity and dissent. And it shouldn’t be any other way.

Libby’s legacy: The conservative case for a national shield law
By Michael Berry Prosecutors aren't just subpoenaing reporters in cases where national security might be compromised — they're going after reporters’ sources for stories on athletes’ steroid use and street protests.

Islam vs. the free world
By Lev Wright
There is a war waging all across our globe right now which affects all of us, whether we realize it or not. This war is not being fought with bullets or tanks, but words. What I speak of is the war between socially objectionable ideas clashing against religious sensitivities. This war is not only threatening to distort the definition of "free expression", but also has the potential to warp our very understanding of what it means to hold an opinion.

(See headline link for full commentary.)

Teacher has artistic license

By Elizabeth Chapman
Staff writer, The Battalion, Texas A&M; University

Commentary: trying to stop protests at military funerals

By Sylvia Smith
Fort Wayne, Ind., Journal Gazette

WASHINGTON — Congress — the House, anyway — has finally recognized that demonizing gay people is outrageous, vile and hateful. Well … sort of.

Rep. Steve Buyer led the House last week in a near-unanimous vote prompted by a group of gay bashers who picket at military funerals. Buyer’s outrage was not provoked by the protesters’ hostility to homosexuality; he is incensed that anyone would protest at the funerals of soldiers killed in Iraq. He and the rest of the House voted to eviscerate the Constitution rather than allow protesters trample on the feelings of veterans’ families.

Members of the Kansas-based Westboro Baptist Church contend that God is punishing the nation for its pro-gay views. Their dizzying logic of God’s wrath is evident in soldiers coming home in body bags. As they did in Indiana earlier this year, the Westboro wackies show up at funerals of soldiers carrying posters proclaiming “God Hates Fags” and “Thank God for IEDs,” a reference to the roadside bombs that have killed and maimed so many in Iraq.

Family and friends attending the funerals are understandably revolted and mystified by the protests, which are anti-gay, not anti-war. Members of Congress — prompted in part by genuine disgust for the display and partly by their search for a way to take the edge off the growing public opposition to the war — quite naturally want to do something to make the protesters go away.

So Tuesday [May 9], led by Buyer, the House passed a bill to restrict protests at military funerals conducted at veterans’ cemeteries and Arlington National. Protests could be held an hour before and an hour after the funeral, but even those would have to be a football field and a half away.

Unfortunately, every single Hoosier member of the House concluded the best way to vaporize the anti-gay hate-mongers is to grab the Bill of Rights and riiiiip it apart.

Sen. Evan Bayh showed similar disdain for the Constitution but wants to go even further than the House. He introduced a bill that would apply the ban to protests in the vicinity of (within 300 feet) any veteran’s funeral, be it at a veterans’ cemetery or a D.O. McComb & Sons funeral home.

Yes, the Westboro Baptist Church protesters are breath-takingly rude. Yes, they are causing unspeakable pain to family members who are already traumatized by the loss of a wife or father or son, a sister, a cousin or a neighbor. Yes, they have no dignity, no shame, no heart. All this and much more.

But their loathsomeness doesn’t mean we should mess with the Bill of Rights.

Ugly and small-spirited they are, but those protesters have a right to their protest. Our Constitution protects many things, and bad manners are one of them. Buyer doesn’t see it that way, however.

“When people say you are regulating speech again, well, nobody really wants to do that,” he said in arguing for the bill. “We have such respect for the First Amendment. But at the same time, there is a significant government interest here and that deals with our decency. … We cannot permit the repugnant acts of a few to define the character of America.”

Actually, the right to free speech trumps decency. The repugnant acts of the Westboro Baptist gang do not define the character of America. The character of America is defined by its commitment to freedom — presumably the very freedoms that the U.S. soldiers are dying in Iraq to create — and one of those is freedom of speech.

The justifiable limits on speech come when something more than tender feelings is at stake. The most famous example of court-sanctioned restrictions on speech — you can’t yell “fire!” in a crowded theater — is because it would cause panic and, most likely, death by stampede. The Supreme Court has allowed other restrictions by limiting where protests can occur, not squelching them altogether.

The House bill could be defended — and I would — if it applied only to noisy protests on federal property or just outside the gates of the cemetery. But when the restriction is expanded to within 500 feet of a veterans’ cemetery, it smacks up against the Bill of Rights.

Bayh said his bill does not violate the Constitution, and his staff cited a Supreme Court case that permitted a town to prohibit picketing from in front of a house. In that case, the court said a city couldn’t ban pickets from a whole block but could ban protesters who congregated in front of one house only.

Bayh defines the banned protest as “oration, speech or similar conduct” before any group of people that’s not associated with the funeral; “the display of placards, banners, posters, flags or similar devices that are not part of the funeral or ceremony;” and handing out “any handbill, pamphlet, leaflet or other written material that is not part of the funeral or ceremony.”

Even if the idea of banning loud protests outside of yelling distance of a vet’s funeral were constitutional, much of what Bayh wants to prohibit is hardly disruptive. It would appear to include anyone leafleting for a political campaign or flying an American flag from a neighboring porch.

Normally, the House action would be seen for what it is — election-year theatrics — and we’d count on the Senate to ignore the bill (and Bayh’s). However, Senate Majority Leader Bill Frist is working overtime to pass legislation that appeals to conservatives. Even if the Judiciary Committee gives Bayh’s bill the (in)attention it deserves, Frist might allow Buyer’s bill to pop up on the Senate floor without going through a committee.

Conservatives ought to be appalled at this assault on the Constitution. But no one stood up on the House floor and said the attempt to restrict protests of any sort and of any volume within 500 feet of a veterans’ cemetery funeral for 60 minutes before and after the funeral is an unwarranted violation of the First Amendment. Can we trust anyone in the Senate to do so?

Sylvia A. Smith has worked at The Journal Gazette since 1973 and has covered Washington for northeast Indiana since 1989.

The price of ‘free’ speech at FSC

By the MetroWest Daily News

Editor’s note: This editorial was published in the Framingham, Mass., MetroWest Daily News on March 8, 2006. Reprinted here by permission of the Daily News.

It’s been many years since student demonstrations rocked America’s campuses, and Framingham State College was never in the vanguard of student protest. Administrators at Framingham State appear determined to keep it that way.

The FSC administration has a policy designed to make student activists pay for exercising their right to free speech. Demonstrations are allowed only with a college permit, and only in designated “free-speech areas” — which tells you something about FSC’s limited commitment to free speech. If more than 100 participants are expected, sponsors are required to pay a campus police officer $40 an hour to keep the peace.

The policy came to light when a college Republican group complained that they chose not to invite supporters from other campuses to join in protesting a production of “The Vagina Monologues” last week because they couldn’t afford to hire an officer. The protest was scheduled to run 30 minutes, but the policy requires the cop be paid a minimum of four hours.

Since only seven students showed up for the Republicans’ protest, we’re not sure they would have crossed the threshold, but even if they had, the policy would present an unjustified hardship. Students shouldn’t have to pay $160 for the privilege of political expression.

We also question the policy’s premise. Campus police are on duty, their salaries already paid by FSC students and the taxpayers of Massachusetts. Surely they can be called on to keep an eye on a few protesting students. Campus demonstrations at FSC are so rare — indeed, almost unheard of — that such duty is unlikely to distract from the officers’ other pressing duties on a regular basis.

Back in the heyday of student protests, the organizers of such events often wouldn’t ask for permission, let alone abide by such a restrictive policy. If FSC students were less apathetic and more interested in asserting their constitutional rights, this policy would be deserving of a good, old-fashioned campus protest.

We don't need government imposing religion as science
By Sam Osborne
Retired psychology professor, West Branch, Iowa

To use the powers of government to pass science off as religion or religion off as science is wrongheaded. A free and thinking people do not need government telling them that their faith in God is nothing more than a scientific theory or that their scientific theories must conform to another person's religious beliefs.

Within his first encyclical, Pope Benedict XVI uses some words that echo the U.S. Constitution's First Amendment guarantee of freedom from State sponsored religion. In this moving epistle on the faithful leading lives within God's gift of love, Deus Caritas Est, the pontiff writes, "The State may not impose religion, yet it must guarantee religious freedom and harmony between followers of different religions."

Counter to this, some religious zealots are currently bent on pressuring local public school boards into requiring teachers to insert into their lesson plans a new certitude of these true believers, intelligent-design creationism. They are free to believe what they will. However, this attempt to use government to promote their religious ideology should be troubling to all people who prize freedom of conscience.

State-sponsored proselytizing is a greater threat to our religious freedom than it is to the domain of science. Science has and will continue to weather all sorts of misdirected and dead-ended efforts; however, our freedom of conscience may not fare so well. The override of this liberty would mark the entry of our nation into an intolerant period in which all sorts of intellectual and spiritual pursuits were subject to suppression.

Posted February 2006.

When property goes, so does privacy
Google is to be applauded for its courage in resisting the Justice Department's subpoena.

By Amy Peikoff
Assistant professor of philosophy, United States Air Force Academy

The nationwide panic engendered by the Justice Department's subpoena to Google was, according to many lawyers and scholars, a mistake. Timothy Wu, a law professor at Columbia, said that the only interesting aspects of the case concern technical rules of legal procedure. "This particular subpoena does not raise serious privacy issues," he said.

It is true that the subpoena demands only a week's worth of searches and the addresses of a million randomly selected Web sites. Apparently, these aggregations of data alone cannot link any individual to a particular search or Web-site viewing. Nonetheless, the panic was no mistake. If the subpoena succeeds, it will establish an ominous precedent: that the Justice Department can seize Google's (and anyone else's) property, without warrant or particularized suspicion and, moreover, the seized property need have only dubious relevance to the defense of a proposed law of dubious merit. ACLU attorney Aden J. Fine was right in identifying the subpoena as "another instance of government overreaching." Google is to be applauded for its courage in resisting it.

Internet Law specialist Susan P. Crawford warns that, while this subpoena does not seek data that most people would consider private; e.g., searches which can reveal a person's unpublicized goals, preferences and problems — sexual, medical and otherwise — nonetheless "the next subpoena could ask for that kind of data." The solution, however, is not to enact more privacy legislation. What we need is a legal system that defends our right to property and contract.

Warren and Brandeis, in originating a "right" to privacy in 1890, extolled the value of privacy to individuals, but stressed that their newly coined right must often yield to the public interest. Thus arose the "balancing test" approach that is now used whenever a right to privacy is invoked from abortion law to search-and-seizure law to tort law. So, if the Bush administration decides that it is in the public interest to have legislation preventing minors from viewing pornography on the Internet, then a man's right to privacy in his Internet searches may be sacrificed in order to defend such legislation, depending on the outcome of the balancing test. A judge will weigh the individual's interest in keeping his searches private against the public interest in the government's obtaining the data. How does he decide which interest prevails? By his subjective preferences? By public opinion poll? This is no standard. Thanks to the "right to privacy," we enjoy privacy not by right, but by permission.

Perhaps it is contempt for the right to property that sustains our legal system's idea that the only property entitled to vigorous protection from government seizure is that containing "private" information. But Americans must realize that where property goes, privacy follows. One may choose to keep his thoughts and interests within the confines of his own mind. Otherwise, to prevent unwanted disclosure of information, one needs either an exclusive right to a place in which to store it, or a contractual agreement of confidentiality express or implied with others to whom he voluntarily discloses it. It is therefore only through objective laws protecting property and contract against warrantless government search and seizure, that we can safeguard our privacy.

The term "private," when used to describe information, is no more objectively definable for legal purposes than is "obscene" or "pornographic." The referents of such terms change with the fashions; what was once considered strictly private information is today eagerly shared all over the media and the Internet. The terms "property" and "contract," by contrast, have definite referents. Whether someone owns property or has entered into a contract is a fact; common law doctrines allow judges objectively and predictably to determine whether such rights exist in a particular case. This takes the decision about what information to disclose away from government and puts it where it belongs: in the hands of the individual.

One essential feature of totalitarianism is a government's ability to punish citizens, not only for what they do or say publicly, but also for what they think and value in the privacy of their own minds. As one privacy advocate has said, a record of one's Internet searches is "a kind of shadow of the thoughts within your head [—] your interests, your desires, your hobbies, your fears." If our government thus begins to have access to the content of our minds whenever it decides that this might serve the public interest, nothing can follow but a future of thought control.

Posted February 2006.

Are student newspapers about education or not?

By Vincent F. DeMiero

Editor's note: This editorial was published in the Everett (Wash.) Herald on Nov. 6, 2005. DeMiero, a teacher at Mountlake Terrace (Wash.) High School, was asked to write a column in reaction to the prior review of the student newspaper at nearby Everett High School. Reprinted here by permission of the Herald and DeMiero.

Never mind SATs or ACTs or even the WASL. There is real, authentic education taking place right now in the Everett School District, and four thoughtful women are doing the teaching. The lesson they’re grappling with is whether it’s sound educational practice for the principal to read the student newspaper prior to publication.

Superintendent Carol Whitehead is the president-elect of the Washington Association of School Administrators and the 2004 Washington Superintendent of the Year. Everett High School Principal Catherine Matthews, while in her first year as the lead Seagull, is a respected veteran administrator. Everett High School seniors Claire Lueneburg and Sara Eccleston are the articulate co-editors and three-year veterans of the student newspaper — the Kodak — and both plan to attend a four-year university.

Clearly, these are people who will thoughtfully decide, effectively, who controls the student press at EHS. The outcome, which would likely impact not only the Kodak but also the student newspapers at Cascade and Jackson high schools, will reveal whether Matthews and Whitehead will enforce flawed district policies and procedures, or whether they will affirm the district’s educational values and mission; whether Everett is a district that prefers mediocrity hidden under the veneer of Pollyannaish public relations, or whether it believes in developing in its young citizens critical thinking skills and active participation in a complex, pluralistic democratic republic.

It’s not a simple decision. The result is going to make some uncomfortable. And the stakes are high.

Unfortunately, this dilemma is not unique to Everett. Citing an often misunderstood and misapplied 1988 Supreme Court ruling known as the Hazelwood decision, public school administrators all across the United States have decided that on top of all their responsibilities they also want to be editors and publishers of newspapers. Conversely, many savvy, thoughtful educators have cited Hazelwood as reason to clearly establish their school’s newspapers as open, public forums for student expression — either through policy or practice.

I teach at such a school — and it’s not in some distant land, either. Courageous, passionate administrators, educators, alumni, community members and students at Mountlake Terrace High School have coexisted — sometimes in strong disagreement, sometimes with a unified voice — while student journalists published hundreds of thousands of copies of their newspaper and magazine during the past three decades.

The student newspaper at Terrace operates as an open public forum because as a learning community — particularly at a public school — we long ago concluded that this is sound educational practice. For example, the official journalism curriculum of this state has as its first goal that students “understand and exercise the rights of and responsibilities of free speech in American society.” This goal stems in part from Article I, Section 5 of the Washington state constitution: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” Also, the Washington Administrative Code states that “all students possess the constitutional right to freedom of speech and press ... .”

So, it makes sense that until now Everett school officials have focused their energies and priorities on providing their students with a highly qualified journalism instructor who delivers a demanding curriculum and provides a professional experience. However, an alarming number of public school officials are demanding prior review, censoring student publications, and worse yet, eliminating journalism programs altogether. Is this to be the outcome in Everett?

Some argue that the principal should read the paper and approve it prior to publication in order to protect the school district from potential lawsuits. This argument is terribly flawed for several reasons, but here are three that should give pause to Whitehead and Matthews. First, the Kodak is one of the state’s oldest, most storied student newspapers and has operated as a student forum for many years. Why, as the saying goes, fix something that ain’t broke? Student editors have conducted themselves professionally and have done nothing to warrant these restrictive measures.

Secondly, beware the ramifications of prior review. Currently, the content of the Kodak is the responsibility of its student editors. Once it goes to Matthews and she approves it, whose paper is it? Who’s responsible if there is something printed that actually is problematic? It won’t be Lueneburg or Eccleston. A former editor of the HAWKEYE at MTHS was served a subpoena in class and was twice called before a Snohomish County Superior Court judge because of a stand she and her fellow editors took. The principal wasn’t subpoenaed, nor was any official of the Edmonds School District.

Finally, when was the last time a public school district paid out anything or even lost a court case defending its student publications? It hasn’t happened. However, public schools have paid out significant sums after losing suits stemming from misguided censorship that started with prior review. If schools are concerned about preventing lawsuits, enforcing prior review procedures won’t prevent any of the hundreds of ways districts actually do get sued and lose. Student journalists have an amazing track record when it comes to column inches printed versus district dollars lost in lawsuits. I’ll bet the Herald hasn’t been so fortunate!

I believe that a sound educational decision will be made in Everett. After all, the district’s own mission statement reads: “The staff, families, and community members of Everett Public Schools are committed to academic excellence and ensuring that each student acquires the skills and knowledge needed to thrive as a lifelong learner and responsible citizen in a changing world.”

Up to now, Whitehead and Matthews have met this challenge for Lueneburg and Eccleston — and the rest of the students at Everett High School. Why would they do anything less for those students who will follow?

In our view: Shield reporters in telling truth

By Donald W. Meyers, editorial page editor
The Daily Herald, Provo, Utah

One of America’s gifts to the world is the idea of a free press.

In a world where governments once used the rule of law to control what people could read, the United States guaranteed free, independent voices. At the time the Constitution was framed this was a radical idea, but today the concept of a free press is standard. The degree of free speech is one measure of human rights around the world.

Yet, as the world marked World Press Freedom Day, we see it eroding in the very country that spawned it. Almost 30 American journalists have been subpoenaed or questioned recently about confidential sources used in their reporting.

New York Times reporter Judith Miller and Matthew Cooper of Time magazine are facing jail time for refusing to tell a special prosecutor about conversations they had with White House officials regarding the release of a CIA operative’s name. Cooper wrote about the controversy; Miller gathered information but didn’t write. Ironically, conservative columnist Robert Novack, who first published the information, does not seem to be in the government’s gun sights.

San Francisco prosecutors asked reporters for the San Jose Mercury News and the San Francisco Chronicle to turn over leaked documents about the BALCO steroid investigation and identify who handed over the information.

In Rhode Island, television reporter Jim Taricani spent four months under house arrest for refusing to divulge the source of a videotape showing a Providence, R.I., official taking a bribe from an undercover FBI informant.

Wen Ho Lee, a former nuclear physicist at the Los Alamos National Laboratory in New Mexico, subpoenaed reporters in his lawsuit charging the government with disclosing private information about him without his permission. Lee had been accused of spying at the nuclear laboratory but the charges were dropped.

In 2001, freelance writer Vanessa Leggett was imprisoned for 18 months for refusing to hand over her notes on a murder case to federal prosecutors.

Compelling reporters to turn over information or reveal confidential sources is a serious assault on the newsgathering process and on their ability to report the truth. Without the ability to promise anonymity to a source, journalists are hampered in their efforts to unearth corruption, wherever it may be. Watergate, the Salt Lake Olympics bribery scandal, the Pentagon Papers, reports on cigarette company misconduct and a host of information in the behavior of Washington politicians and government practices have all come to light because of confidential sources.

The Daily Herald uses unnamed sources only as a last resort, and we strive to get independent verification before we publish. The source must be in a position to have direct knowledge; a legitimate reason must exist for why the source cannot be named; and the information must be of substantial public importance.

Just because a source is unnamed doesn’t mean the information is wrong. On the contrary, a source may seek anonymity precisely because he or she is in a position to know but can’t go public because of some element of risk, either personal or professional. Offering no protection to such sources -- protection that can withstand legal challenge -- can only result in the suppression of the truth which they possess.

Instead, crucial information will simply dry up. If, for example, it becomes easy for the police to review reporters’ unpublished notes and to use that information against a person in court, the newspaper will soon be viewed as a pipeline to the authorities, and people with sensitive information will refuse to talk. Nothing could be worse for a free press, or for the communities we serve. A newspaper must never allow itself to become an arm of the government.

Allowing discovery of confidential sources only will reduce the public’s ability to protect itself, and to exercise its own ultimate right to govern.

Unfortunately, there is no uniform law that protects reporters from jail if they withhold the names of confidential sources from authorities. Thirty-one states and the District of Columbia have shield laws in place. Utah is among states that do not. Currently no federal shield law exists, but members of Congress are seeking to fix that.

U.S. Sen. Richard Lugar and Rep. Mike Pence, both Indiana Republicans, are sponsoring the Free Flow of Information Act, which would provide reporters with a measure of protection as they, in turn, shield their confidential sources. Under the law, a lawyer would have to prove that information possessed by a reporter is vital to a criminal investigation or case, that nobody else possesses it and that all other means of getting it have been exhausted.

This would keep lazy attorneys from viewing reporters as their own private investigators. Journalists must to be able to do their jobs without being perceived as government agents or partners of plaintiffs. The independence of the press is essential to its credibility.

The bill doesn’t just help reporters. It protects the public by encouraging truth to come into public view. Without this protection, the press will be limited to reporting mainly what the government wants, leaving the public in the dark and incapable of fulfilling its own constitutional role.

The bill has 23 co-sponsors from both political parties. Regrettably, none of them are from Utah. This is an embarrassment for our state. Utahns, among all Americans, profess particular love for the Constitution. Our congressional leaders should be on the front lines in defending its principles.

Contact your senators and representatives and tell them to co-sponsor this bill and allow the press to fulfill its constitutional ability to speak the truth without fear.

Posted May 2005.

Cherishing dissent in pen and ink

By The Anniston (Ala.) Star

To look at this cartoonist’s work is to be presented with a window into his political beliefs. His leanings come clearly through even though his messages are presented through the cartoonish features of beloved characters. But to interviewers, the strip’s creator is less guarded. One iconic and beloved American president is “despised” by the cartoonist. He also claims to “despise” that president’s ideological heir in the White House.

Who is this man whose work is widely viewed on newspaper comics pages around the country?

No, it’s not Gary Trudeau, illustrator of the often-controversial “Doonesbury.” We’re talking about Harold Gray, who drew “Little Orphan Annie” from the 1920s until his death in 1968.

In its heyday, the strip took dead aim at FDR’s New Deal policies. “In her struggle to survive,” one Boston Globe writer recently put it, “Annie has to guard against social workers, demagogic politicians, and other false friends until she is rescued by her adopted father ‘Daddy’ Warbucks, a two-fisted businessman who, as his name indicates, made his fortune selling armaments. In the world of Gray’s comic strip, capitalism is a girl’s best friend.”

The strip and its anti-FDR message managed to be published in a wide variety of newspapers, even in this one despite having an ownership that was enthusiastically supportive of New Deal policies aimed at lifting the nation from economic depression.

To silence Little Orphan Annie and her message was out of the question, an unthinkable suggestion to those who ran this paper at the time.

Sadly, that’s not the case for all newspaper organizations of today. The Star was recently informed that the consortium that produces its Sunday color comics section would have a vote on whether or not Trudeau’s “Doonesbury” would remain part of that package.

Continental Features polled its clients, and by a vote of 21-15 “Doonesbury” lost, meaning that it will soon be pulled from our Sunday comics section. The Star is already working now to find a new home to place the Sunday “Doonesbury.”

But beyond these practical concerns, is one of principle. To subject just this — and only this — controversial comic strip to an up-or-down vote is wrong. It is “offensive to First Amendment freedoms,” as The Star’s letter to Continental Features pointed out.

It amounts to censorship of a political view unpopular in some quarters, particularly among those in power in the White House and Congress.

It’s a mistake to suggest censorship can only come at the hands of the government. Our dictionaries tell us that a censor is “a person authorized to examine books, films, or other material and to remove or suppress what is considered morally, politically, or otherwise objectionable.” We find no definition that says the one reviewing and expurgating must be an official from the government.

Yes, censorship as it is broadly defined need not be nefarious. But in the case of the comics consortium and “Doonesbury,” the circumstances are troubling.

Republicans control all three branches of government. The White House can command all the talk shows, has almost all of talk radio and religious radio.

Voices of dissent from Trudeau and others like him should — no, must — be protected. The Star believes to stand up on behalf of “Doonesbury” is the right thing to do.

In a statement to a newspaper trade publication, Trudeau said, “I greatly appreciate The Star’s speaking out against such an unfair process, asserting its right and responsibility to put in front of its readers a diversity of opinion. This seems particularly important during a time of war, with all its grave implications to public life.”

The nation was founded to protect this type of discourse, not so that business interest could quiet a cartoonist by plebiscite.

The censor need not have an official stamp from the U.S. government to be doing the work of the powerful in Washington. A little comfortable nodding of heads, a small acquiescence here and there, and minority views protected by our Constitution find themselves shut out. These dissenters are, after all, essential to a functional democracy.

Posted July 2004.

University seeks to filter free speech

By Dennis Neal, opinion editor
The News Leader, Staunton, Va.

There’s a sentence in a news story out of Louisville, Ky., carried by The Associated Press on [May 21] that ought to make the hair on the back of your neck stand up. The story is about how a University of Louisville professor, Ede Warner, is seeking to keep the Ku Klux Klan off campus by having the university ban the KKK, then take them to court on the grounds that they are a terrorist group. The hair-raising sentence in question observes how the professor’s action has “stirred (a) debate among faculty and administrators that has taken place on campuses around the country: how far the university can go to keep some groups off campus and how to best deal with unpopular ideas in the academic setting.” The italics are ours. The sentiment expressed within them, however, is not.

Unpopular ideas in an academic setting? Since when did such a thing exist within the confines of an institution of higher learning?

We are, of course, quite familiar with all the charges of “political correctness” hurled at colleges and universities since that tired term came into being in the 1980s. Never before, however, have we seen it stated so succinctly; this is the sort of moment of which intelligence analysts dream.

That a university professor could be so oblivious to the First Amendment’s protection of freedom of speech and the right to assemble concerns us; that he would use the same tactics employed by the oppressive Patriot Act to trample those rights by having the KKK declared a “terrorist group” worry us as well.

The logic Warner seeks to apply to the KKK would set a very dangerous precedent. While we won’t deny the Klan’s history of terrorizing blacks or other non-white citizens and don’t seek to be apologists for this vile and noisome group, what other organizations could be classified as “terrorists” using Warner’s definitions?

The Democratic and Republican parties come to mind, for two; Democrats, after all, were in the vanguard of the axe-handle-bearing, Massive Resistance-declaring movement which oppressed African-Americans’ civil rights for decades until the federal government, at bayonet’s point, ordered them to desist. Republicans, with their favoritism for the rich, have historically held the worker’s head under water, depriving him of health care, overtime pay and a ticket to the circus in the “big tent.”

The final truth that is so opaque to Prof. Ede Warner and those of his kind is that nowhere in the Constitution does it state that Americans have a right not to be offended. In fact, a life lived under that system would be one of pure terror.

Posted May 2004.

Seditious libel, 2004 version

By Charles N. Davis, executive director
Freedom of Information Center, University of Missouri School of Journalism

Two simple words – “seditious libel” — invoke images of redcoats, Whigs and Tories, of tar and feathers. We fought the War for Independence in part to rid ourselves of that odious threat, through which monarchies stifled any expression, true or false, factual or opinionated, which dared challenge the omnipotence of the representatives of the throne.

Now, as photographs of military coffins draped in the stars and stripes, of Iraqi prisoners humiliated by American GIs and of the war dead themselves on “Nightline,” are subject to criticism, repression and in the case of the Dover Air Force Base war dead, an outright government ban, it is worth remembering seditious libel’s inglorious role in our nation’s history and its poisonous tendency to treat truth and falsehood with equal disrespect and to brand legitimate criticism of government policy as treasonous.

The freedom of the press guaranteed by the First Amendment can be threatened in many ways. The most direct threat, rare in our constitutional scheme, may be either censorship or mandatory licensing by the government in advance of publication.

Of particular importance to our revolutionary founders was the rejection of the very idea of seditious libel: the idea that one could libel the government. A remnant of law left by the crown, seditious libel was broadly defined as anything that “excited disaffection” against constituted authority. Under the doctrine of seditious libel, both true and false criticism of the government was considered libel. In fact, legal thought of the pre-revolutionary era proclaimed that “the greater the truth, the greater the libel.”

Early in our nation’s history, partisan debate between Federalists and anti-Federalists generated a shameful episode in which the United States government rekindled seditious libel to punish critics of the administration.

Seditious libel emerged again in World War I, as the government again punished opponents of the administration, this time citing wartime morale as justification for a series of repressions regrettably aimed at those merely expressing their heartfelt opposition to the war.

The First Amendment’s protections grew over time to protect such speech, as the courts grew increasingly uncomfortable with the concept of seditious libel, and with vague definitions of incitement that hinged on the “tendency” of words. Likewise, the courts began to parse government regulations focused on controlling what people say, as opposed to reasonable measures aimed at policing the time, place and manner of speech. Government regulations based on content are sustained only if they pass the “strict scrutiny” test, in which courts ask whether the restriction is necessary to achieve a compelling government interest, and whether there exist other means less destructive of First Amendment rights. For the state to restrict expression based on content alone — only the direst of circumstances could justify such censorship.

When the state seeks to bar expression, it must offer much more than broad pronouncements about “protecting morale” or “sustaining the war effort.” Such was the rationale of the World War I Espionage Act prosecutions, a relic in First Amendment terms but analogous to several recent developments in the current conflict.

Which brings us full circle to the Defense Department ban on showing images of the return of the bodies of soldiers killed in action since the start of the war in Iraq. The government edict, issued at the start of the war last March, stated that there would be "no arrival ceremonies of, or media coverage of, deceased military personnel returning to or arriving from" air bases.

The ban recently was circumvented after thememoryhole.org, a Web site dedicated to combating government secrecy, mounted a successful legal challenge under the Freedom of Information Act. The reason for the FOIA disclosure was remarkably simple, and says much about the propriety of the ban itself: The Freedom of Information Act contains no exemption that would cover the photos. The single release of the Dover photos obscures the larger issue of the ban itself.

The Pentagon was forced to release hundreds of photographs, which immediately appeared on the site and quickly made their way to news organizations around the world.

The Pentagon’s absolute ban on coverage of the arrival of fallen troops should be analyzed for what it is: a content-based prohibition, backed by the legal force of the United States. Against the backdrop of seditious libel, and of content-based regulations, the ban appears suspect at best, overbroad and overreaching at worst.

The Pentagon and other officials have invoked the privacy of the soldiers’ families as their rationale for the ban. Taking this argument at face value, there is little evidence that the photos generating so much controversy raise such troubling privacy issues as to justify a ban on them.

The coffins, anonymous, closed and draped in American flags, simply do not invade the privacy of anyone. The use of privacy as a justification for secrecy is a well-worn theme these days, but in order for privacy to rise to the level of legal protection, there must be harm – embarrassment, emotional distress, the release of intimate detail, or any number of other evils to be avoided.

No such harm is presented by flag-draped coffins of unidentifiable soldiers; no individual’s right to privacy is even at stake. Even if one were to accept the specious privacy claims presented, the privacy interest would have to be weighed against the public interest served by coverage of the arrival of fallen soldiers, a value long recognized as a countervailing interest in privacy cases.

It is difficult to understate the public interest of returning war dead, the very real image of war writ large in a faraway conflict. The news media have a long history of respectful treatment of such images, which evoke a myriad of emotions but always underscore the reality of warfare.

If such a privacy interest exists, it certainly is a one-way street: Defense Department officials see no such privacy concerns with the display of dead Iraqis, going so far as to exhibit the corpses of Saddam Hussein’s sons Uday and Qusay.

If privacy is an insufficient rationale for the Defense Department’s ban, attention must turn to the ban’s unstated yet likely purpose: to better control coverage and images of the downside of conflict. Mindful of the nightly images that Vietnam ushered into America’s livingrooms, the Defense Department has taken the opposite approach, that of a total ban on coverage.

A complete government prohibition on truthful, factual coverage of returning war dead must serve a compelling government interest to withstand scrutiny. Administrative efficiency or base security would easily serve to justify limited restrictions of coverage, such as the time and place of coverage, but do not justify a complete ban.

When such interests are critically examined, one is reminded of the tenets of seditious libel, and its prohibition of expression that could be deemed critical of government, or even perceived as critical of government when viewed through the wide lens of public opinion. Rather than a demonstration of the newsworthiness of the image, the undeniable truth of a photographed image of flag-draped coffins, to the Defense Department, is greater proof of the seditious tendency of the expression.

We fought a war to rid ourselves of such heavy-handed government control, only to find ourselves, more than two centuries later, refighting the First Amendment battles of the past.

Posted May 2004.

Porn in the U.S.A.: Coming soon to a video store near you: Feds Gone Wild!

By A. Barton Hinkle, columnist
Richmond (Va.) Times-Dispatch

Though his diploma says Universitatis Yalensis, Attorney General John Ashcroft comes from the if-you-can't-beat-'em-join-'em school of thought. After photographers began having some sport with pictures of him standing in front of the bare-breasted "Spirit of Justice" statue in the Justice Department's Great Hall, Ashcroft had curtains hung to hide her from view. The result was even more ridicule.

Having apparently decided that if he can't erase his reputation as a modern-day Bowdler (in 1818 Thomas Bowdler published a version of Shakespeare in which he "endeavoured to remove every thing that could give just offence to the religious and virtuous mind"; he did the same to, yes, the Old Testament), Ashcroft apparently wishes to embrace it. And so the Justice Department has launched a new campaign against obscenity.

Mind you, the campaign will not target the vile exploitation of children that is the proper purview of government. Nor will it pursue only those forms of adult pornography — bestiality and scatology and all the rest — that make most people retch. The Department's goal is to send "ripples" throughout the entire adult entertainment — i.e., porn — industry.

The effort is being spearheaded by Bruce Taylor, a longtime anti-erotica crusader who told PBS' "Frontline" in 2001 that "just about everything on the Internet and everything in the video stores and everything in the adult bookstores is still prosecutable illegal obscenity ... . Legitimate companies, to stay legitimate, are going to have to distance themselves from it." Legitimate companies could mean cable companies, hotel chains, Internet service providers — even phone companies.

"Just about everything" might seem a rather sweeping indictment, but not to Drew Oosterbaan, who runs the obscenity-prosecutions division at Justice. "Nothing is off the table as far as content," he says. Which suits Jan LaRue just fine. She is the chief legal counsel for Concerned Women for America, the conservative Christian version of NOW. "They need to prosecute some of the more mainstream material," she says. "Not just the deviant stuff. And they need to go after some bigger targets."

That's what Mary Beth Buchanan, a federal prosecutor, intends to do. "We're trying to focus our resources on the material that causes the greatest harm," she says, "and the greatest harm could be caused by producing the most egregious material, but it also could be caused by a distributor with a large area of distribution." Say, for example, Playboy Enterprises.

To those favoring the new crusade against adult entertainment, erotica is not merely sleazy or nasty, it is sinful and harmful — a cause of divorce, family breakdown, and spiritual degradation. The first article on the pornography section of the American Family Association's Website begins, "Temptation always precedes the process of sin. Thoughts are either placed in a person's mind by one of Satan's emissaries or simply appear as a longing of the flesh." Two years ago Ashcroft said pornography "invades our homes persistently through the mail, phone, VCR, cable TV, and the Internet," and has "strewn its victims from coast to coast."

But there are a couple of problems with that construction. First, while it is possible to stumble inadvertently on a pornographic Website, the stuff does not "invade" a home the way termites do — with the exception of e-mail, about which the feds are taking appropriate action. Nobody accidentally pops an X-rated movie into the VCR or DVD player. Consumers of erotic material seek it out by choice.

This leads to a second problem: Porn would not be a $10-billion industry if it did not have millions of consumers. In 1985, Americans rented 75 million adult videos. By 1998, the number had risen to 686 million. But even if the audience numbered just a few hundred, that would not justify the Justice Department's crusade. A search of the Constitution finds no authorization for the government to prohibit people from viewing "Girls Gone Wild" or something far more esoteric. The government's job is to protect individual rights, and nobody has a right to be free of the suspicion that somebody across town might be watching a girlie show on tape.

Yet another problem consists of where to draw the line. It isn't easy or pleasant to defend a person's right to watch filth — but that does not make the right null and void. And once the initial concession to censorship has been made, the argument reduces to where the slide down the slippery slope should stop. Many communities would consider the explicit gonadal talk of "Sex and the City" obscene, despite the show's popularity. (Heck, some would object to the racier bits in Ovid.) Others might see fit to censor scenes from "The Passion of the Christ." Still others might agree with yours truly that many misogynistic rap lyrics are obscene, or that pretending a rotted cow's head in a vitrine is a work of art on par with the Sistine Chapel is far more obscene than a porn video which doesn't pretend to be anything but a work of titillation.

Saving souls is a job for the church, not the FBI. If the feds don't have enough to do, maybe they could try to catch some terrorists. Word has it a few are still on the loose.

Posted April 2004.

'Under God' gets scrutinized by high court

By Dennis Neal, opinion editor
The News Leader, Staunton, Va.

It’s not clear yet what impression Michael Newdow — the California atheist who wants “under God” stricken from the Pledge of Allegiance — made on the Supreme Court, but he obviously impressed the media that covered his opening statements about the case (Elk Grove Unified School Dist. v. Newdow) last week. Words like “stellar” and “stunning” were used to characterize Newdow’s arguments against keeping the Cold War-era verbiage in the pledge. Newdow’s presentation was also portrayed in news reports as being so precise and full of clarity that the justices who remained to hear it were taken aback (Justice Antonin Scalia recused himself at Newdow’s request because of a speech the judge had made that was seen as supportive of leaving the pledge unchanged.)

For those unfamiliar with this case, it revolves around Newdow’s objection to his daughter — whose mother is a born-again Christian — being “coerced,” as Newdow puts it, into having to recite the words “under God” while saying the Pledge of Allegiance in school and elsewhere. Newdow’s case that the pledge violates the separation of church and state outlined in the establishment clause of the First Amendment was upheld by the 9th U.S. Circuit Court of Appeals last year.

During our reading of Newdow’s arguments, however, we detected some gaps in his logic.

First among them is the fact that no one can be legally coerced into saying the pledge, with or without the words “under God.” Compulsory recitation of the Pledge of Allegiance was struck down by the Supreme Court in 1943 because it violated the religious beliefs of members of Jehovah’s Witnesses, who are forbidden to swear oaths or worship any image or likeness — including the American flag — however perfunctorily.

Second was Newdow’s lapse into emotionalism, when he described his daughter’s having to say the pledge with the words “under God” as “slapping him in the face” because of his atheism.

We wonder what will be next to offend Newdow and others like him; does the mere sight of a church disturb him? Does the existence of synagogues or mosques constitute a slap in his face?

Newdow’s choice not to believe in God or practice any religion is protected by the First Amendment, just as the diverse faiths practiced in America are. We believe the Supreme Court adequately settled the issue of compulsory recitation of the Pledge of Allegiance 60 years ago. Also, as we have stated before, Americans have no constitutional right not to be offended by something; if they did, the First Amendment’s protections of freedom of speech, assembly, religion, press and right to petition the government would be out the window, because all of these offend some people some of the time.

We believe Newdow’s case is invalid and that the pledge should remain unchanged.

Posted March 2004.

Court's decision on divinity scholarships misguided

By Dennis Neal, opinion editor
The News Leader, Staunton, Va.

It's not often that this newspaper's editorial board agrees with Supreme Court Justices Antonin Scalia and Clarence Thomas. We feel, however, that the decision (Locke v. Davey) to allow states to withhold scholarships from students who wish to study theology is misguided.

Make no mistake — we are committed to the separation of church and state. If this issue smelled even faintly of government endorsement of or intrusion into a particular religion or exclusion of another for whatever reason — as President George Bush's "faith-based initiatives" have — we would side with the 7 justices who voted in favor of withholding the scholarships. But we don't see it that way; we see this as a passive disbursement of funding to advance study — whether that study is of geology, underwater sand-castle building or theology is immaterial. As long as the scholarships allow the study of any theology — Christian, Muslim, Jewish, Zoroastrian, doesn't matter — what's the problem?

The Supreme Court decision grew out of a challenge to a law in the state of Washington that denies the use of taxpayer-funded scholarships to any student wishing to study theology. That law is, at least, evenhanded, and if Washington (or any other state) wishes to deny such scholarships, we don't feel the federal government should order them to do otherwise.

It should be noted, however, that the practice of denying scholarships for the study of theology has its roots less firmly planted in the First Amendment's prohibition against the establishment of religion than it does in the fetid soil of bigotry.

Washington, as did 36 other states, signed onto the concept of what are called "Blaine amendments," named after James Blaine, who served in Congress during the administration of President Ulysses S. Grant.

Congressman Blaine sought to amend the U.S. Constitution to prohibit any public funding for non-public religious schools. While that effort failed, having such amendments included in state constitutions became a precondition for statehood during the late 19th and early 20th centuries. The reason Blaine and others sought to do this was not based on any high-minded desire to keep church and state separate but to choke the growth of Catholic schools. The history of Blaine amendments is less evident today in our prayer-free schools, but Catholics of a certain age with long memories can recall public schools blithely continuing to use readings from Bibles — as long as they were Protestant Bibles — and being persecuted for saying their "Our Fathers" — known to Protestants as "The Lord's Prayer" — minus the doxology into the 1960s.

Blaine amendments have served as a pivot point for arguments for and against school vouchers. With the Supreme Court's latest decision, these amendments based in bigotry have gained a new stamp of acceptance.

Posted March 2004.

Public left out when voice votes decide weighty matters

By Donald W. Meyers, editorial page editor
Daily Herald, Provo, Utah

Can you imagine the Utah Legislature or the Provo Municipal Council approving a multi-million-dollar appropriation without recording who voted which way on it?

Of course not.

But that's what the U.S. Senate did when it approved $87 billion for rebuilding Iraq and Afghanistan. It was a voice vote, in which senators vote collectively with a simultaneous "yes" or "no." There is no list kept, and no individual accountability.

By contrast, a roll-call vote requires each senator, by name, to cast a vote that is recorded for all the world to see.

There are proper times and places for voice votes. For example, you wouldn't want to do a roll-call vote every time the Senate recesses for lunch or approves the record of the previous day's meeting. In those circumstances it is more efficient to do a voice vote, and the issue isn't so serious that the public needs a record of specific votes.

But when the government is spending a colossal amount of money, adding to the federal deficit and putting American troops into harm's way on the other side of the globe, the public has a right to know how each individual senator voted on the issue.

There's no question that the United States has to rebuild Iraq, but legitimate questions have been raised about whether this will be the last time we have to pony up for Iraq, and whether the money will disproportionately enrich a few consultants and contractors rather than being focused on the core task. When the stakes are this high, the public needs to know the details of the vote.

By conducting a voice vote on reconstruction funding, senators leave the impression that they don't want to have their position known. Voice votes always provide a certain amount of political cover. They allow a lawmaker to disavow a measure if things don't work out to the satisfaction of folks back home.

Only six senators made their votes known at the time the vote was cast — four Democrats and two Republicans — while the others have chosen to remain anonymous. Neither of Utah's senators were on that list, but Sen. Orrin G. Hatch's spokesman said he voted in favor of the appropriation.

The Senate should take the vote over again with individual votes recorded, so constituents can better judge how their representatives are taking care of the public's business.

Posted November 2003. Editor's note: The California First Amendment Coalition also has called upon that state's senators to disclose their votes, and the Society of Professional Journalists is conducting a telephone audit of the Senate to determine which senator voted which way.

Virginia statute laid groundwork for religious freedom

By Dennis Neal, opinion editor
The News Leader, Staunton, Va.

Before the Constitution was ratified, before the Bill of Rights containing the First Amendment was drafted, there was the Virginia Statute for Religious Freedom.

With the American Revolution fought and won, our founders' attention shifted from battle strategies to governing the fledgling republic.

Part of the debate centered around what, if any, "official" religion should be established, and whether the citizens of the new nation should be compelled to attend or pay taxes to any church.

In Virginia, where the Anglican Church had held sway, with its compulsory tithing and "glebes" — fine parcels of land, usually with working farms on them — there were still advocates of taxing citizens to help support religion.

Two Virginians — Thomas Jefferson and James Madison — held differing viewpoints, however. They felt imposing any religion on a people was the worst form of tyranny, and that any financial support for a religion should be completely voluntary in nature.

Thus was born the mother of the First Amendment guarantee of freedom of — and from — religion. The Virginia Statute for Religious Freedom was adopted by the state legislature in 1786.

It was not an easy birth. From conception to adoption, the bill went through a decade of debate. Five years after the Virginia law passed, the First Amendment, with its terse but elegant statement that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," became the law of the land.

More than two centuries after the ratification of the First Amendment, we are still debating whether Americans should be this kind of Christian or that kind of Christian, whether Religion A is better than Religion B, if Muslims or Jews or Zoroastrians can pass through the Pearly Gates (or not), and if all society's ills can be cured by making the recitation of the Lord's Prayer compulsory for schoolchildren.

That kind of debating is good and healthy. It is also protected under the "freedom of speech" clause in the First Amendment. Thankfully, we are protected from the tyranny of forcible piety by our First Freedom.

In Richmond, the Council for America's First Freedom, a nonprofit, nonsectarian group, seeks to erect a monument to religious freedom; a 30,000-square-foot education center near the downtown site where the Virginia law was enacted.

If that helps remind people that we are free partly because we can worship how we wish, where we wish, when we wish — or not — that will be a good thing.

Posted November 2003.

Virginia Tech TV show was raunchy, but so's MTV

By Dennis Neal, opinion editor
The News Leader, Staunton, Va.

Del. Robert Marshall, a Republican who represents the people of Manassas in the House of Delegates, is not amused.

What has caused the lawmaker's bad humor is a television show — a program called "Sex Talk Live," produced at Virginia Tech's student-run television station, VTTV.

Marshall got wind of the fact that "Sex Talk Live" takes a free and easy approach to dealing with matters of the sexual kind. As a matter of fact, it's downright down and dirty, featuring interactive fake-orgasm contests and sex-position charades. The prizes given out by the show's hosts to participants aren't exactly of the Amana or Tappan variety either; they include dildos and inflatable sex dolls.

The concept of such a thing possibly occurring on the taxpayer nickel apparently also inflated Marshall's blood pressure. The legislator wrote Virginia Tech President John Steger demanding an explanation. What he got probably didn't suit him, but that's the way it goes.

You see, VTTV is part of the Educational Media Company at Virginia Tech, Inc., a private, nonprofit organization that receives an annual sum from student activity fees. It's run by the students, for the students. As a result, there's not a whole lot that can be done about what is aired, unless the law has been broken. And "Sex Talk Live" generates its own revenue.

If tax dollars were being used to buy sex aids, we'd be writing a completely different editorial. But since they are not, our advice to Marshall is to just calm down. A futile gesture, of course, but one worth trying.

What is happening at VTTV is that the producers of "Sex Talk Live" are using the same kind of programming to reach their target audience that they are used to watching. The program's devices are not all that unlike what can be seen on MTV or other youth-oriented channels.

Puerile? Yes. Raunchy? You bet. Just like the college kids who watch it.

The messages the show seeks to convey — curbing violence against women, safe sex — aren't couched in terms that would make most parents or older adults comfortable. But they reach their intended audience in a way that old-style "family education" never could.

There's also this little thing called freedom of speech covered by something called the First Amendment. Seems Mr. Marshall doesn't have a whole lot of use for that anarchic little clause in the Constitution; he has asked Steger to use "prior restraint" — in other words, to approve the content aired on VTTV before it is aired like a dictatorial high school principal in a small town.

That's not Steger's job. He may not like what airs on VTTV, and neither may we — but without it, the sexiest thing at Tech would be (football coach) Frank Beamer.

Posted October 2003.

People would benefit from easier access to court files

By Donald W. Meyers, editorial page editor
Daily Herald, Provo, Utah

The Utah Judicial Council is looking at making it easier for the public to inspect legal papers filed in state courts.

The council appointed a committee to look at making Utah’s court records available electronically. This would allow attorneys to file court papers over the Internet, as well as permit the public and the media to read documents online.

Currently, if you want to see what’s been filed on a particular case, you need to go to the courthouse, ask a clerk to bring you the file and then pore through the documents at a table. If you want any photocopies, you need to go back to the clerk and pay for them.

Electronic filing eliminates the barriers of time and geography. If you live some distance from the courthouse, or if it’s not convenient to go in person, you would be able to check the status of a case.

But not everyone is enamored with this idea.

Privacy advocates fear that making the records available electronically would make it easier for information to fall into the wrong hands. They fear that someone would use electronic access to court documents to get information on victims and witnesses so they could stalk, harass or intimidate them. Another fear is that unscrupulous people may harvest addresses from court documents for junk-mail campaigns.

None of these arguments hold water.

First, the U.S. District Court in Utah has put its records on the Internet through the WebPACER system, and there have been no complaints that anyone’s privacy has been breached or that someone has been harassed by an unscrupulous person’s using the federal records system.

The federal system, which Utah should adopt for its own courts, puts the burden on attorneys and litigants to decide whether they want information that could be considered confidential placed on the Web. If they don’t want it out for public consumption, they can make a motion to submit the document to the court under seal.

The federal system also operates under the presumption that all court documents are public, a standard Utah should adopt in any electronic system.

If someone were determined to use public court records to harass a witness or a victim, it doesn’t matter in what medium the information was obtained. A determined stalker can go to the courthouse and get it from the hard copy. So that’s no excuse for closing off the records to the public, the majority of whom are law-abiding and have used the records responsibly in the past.

There are already laws against witness tampering, stalking and harassment that can be employed to punish those who identify their victims through public records.

The benefits of online court records are tremendous.

Making court records more accessible brings more sunshine into the system and gives people a better understanding of how it works. The judicial branch of government remains relatively shrouded, partly because most documents are handled the old-fashioned way. Improved access would allow more people to see how the system is working and determine for themselves if the judiciary is fulfilling its duty.

The media can use electronic access to more easily identify trends and patterns in court decisions that would be hard to discern if reporters were limited to sifting through mountains of paper files. For instance, reporters could use electronic records to more readily determine if the courts hand out harsher penalties to minorities than whites convicted of similar crimes.

It also would give litigants a means to check on their attorney’s performance. If an attorney is not returning a client’s phone calls on a case’s progress, the client can go online and see if the proper papers are being filed.

Perhaps most important, a free flow of information simply makes the system work more efficiently, speeding decision-making and offering alternative avenues of action in a more timely manner than is available today.

The council needs to adopt rules that give all Utahns electronic access to court records.

Posted September 2003.

Crazy like Fox: News channel eats crow

By Dennis Neal, opinion editor
The News Leader, Staunton, Va.

The Fox News network could learn a thing or two about "funny" from humorist Al Franken. After all, it's Franken who's laughing all the way to the bank on Fox's dime.

Who's Al Franken? Not much, to not too many people — that is, at least before Rupert Murdoch's "fair and balanced" news channel put a whole new coat of wax on Franken's reputation, then buffed it to a glossy, gleaming shine.

Pre-Fox, Franken was best known for bit parts on NBC-TV's "Saturday Night Live," especially his portrayal of Stuart Smalley, the smarmy, self-improving fount of self-esteem who proclaimed, "I'm good enough, I'm smart enough, and doggone it, people like me!" But Franken's also a writer, who contributed much more memorable work behind the scenes on "Saturday Night Live" than he did in front of the camera. He's also the author of 1996's Rush Limbaugh is a Big Fat Idiot and Other Observations and this year's Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.

It was that last title that got Fox News, that smug and self-important bastion of right-wingedness, flying in circles, to borrow a line from another generation's thorn-in-the side-of-orthodoxy, Pat Paulsen. You see, like many that are mired in ignorance, Fox News doesn't understand the meaning of "parody" or "satire." Nor do they — defenders of truth, justice and the American Way that they are — understand what the First Amendment is; if hit with the question on a pop quiz, they might answer, "The first time my mama darned my drawers."

That would be wrong, of course.

So, too was Fox News' idea that Franken was guilty of trademark violation when he used "Fair and Balanced" — Fox's estimation of themselves — as part of the title of his latest book.

A federal judge in New York made that fact known — if not clear — to Fox when he tossed their injunction out of court.

When we mention "clarity," we're not referring to Fox attorney Dori Ann Hanswirth, describing her interpretation of Franken's book title, particularly the "fair and balanced" part in these words: "To me, it's quite ambiguous as to what the message is here ... it does not say 'parody' or 'satire.' "

Sure, Dori Ann (and by the way, that's the last time you'll hear "D.A." in front of your name) — and Mad magazine and National Lampoon — whom Franken wrote for as well, by the way — are scientific journals, too ... . Thus, a victory for the First Amendment, fair comment, and true fairness and balance was won. And Al Franken? Although Fair and Balanced had not been scheduled for release until September, the buzz caused by Fox's lawsuit inspired his publisher to print an extra 50,000 copies for a run of 435,000 and to roll the book out last week.

By the time of the ruling, Franken's tome held the No. 1 spot on amazon.com's best-seller list.

Sweet.

Posted September 2003.

To protect belief, remove monument

By Robert Leger
President, Society of Professional Journalists Editorial page editor, Springfield (Mo.) News-Leader

There are plenty of legal and constitutional arguments why Alabama Supreme Court Chief Justice Roy Moore must remove a 2 1/2-ton granite marker bearing the Ten Commandments from the rotunda of the state judicial building.

But the reasons those arguments are built into the law and Constitution were made plain by Moore and his supporters in Montgomery. Throughout the week, hundreds of Christians have crowded onto the portico of the court building. They sang psalms. They delivered thundering speeches, praising their God and denouncing federal judges. "It's a dark day in Alabama; it's a dark day in America," proclaimed John Giles, president of the Christian Coalition of Alabama. Yet scenes such as this were exactly what the founders had in mind when they wrote the First Amendment, which guarantees that government will neither establish religion nor prohibit the free exercise of any religion.

They had seen what happens when a government chooses one religion for favored treatment. They had seen what happens when one church uses government to force its beliefs on all the citizens of a nation. The result is a form of tyranny, the majority telling the individual what he must believe. The believers gathered in Montgomery last week would not think of themselves as tyrants, and I would not suggest they bore any evil intent. They firmly believe this nation was founded as a "Christian nation," and the symbols of its Judeo-Christian principles should be on display in public places. They quote Scripture, which they consider inerrant, to show where God's place in our nation should be. This is their right under the First Amendment. But the same Constitution that gives them the right to hold to their religious beliefs forbids them from using the government to force others to accept or support those beliefs.

Yet that's what they are doing with their insistence that an altar to the Ten Commandments remain within Alabama's Supreme Court. It is a short slide from placing a rock in a government rotunda to turning it against nonbelievers.

Religious beliefs are deeply held. Inexhaustible wars are fought over whose religion is the right one. These wars are fueled by religious fervor, but the goal is to gain the power to force everyone to follow the winner's belief. Without a First Amendment, the scene in Montgomery last week easily could have become a bloody one, with Christians and non-Christians battling over whose scripture should be displayed. The United States has avoided such religious turmoil, largely because of the founders' wisdom. The monument to the Ten Commandments should be removed from the Alabama judicial building- not to somehow "persecute" Christians, but to protect their rights and the rights of all Americans to worship as their conscience dictates.

Posted August 2003.

Judge turns religion into 3-ring circus

By Dennis Neal, opinion editor
The News Leader, Staunton, Va.

There will, no doubt, be many people who will view Alabama Chief Justice Roy Moore as a hero and a Christian David taking on the godless Goliath of federal government. He is anything but. Moore is the judge who arranged to have a 5,300-pound granite monument of the Ten Commandments moved into the rotunda of the judicial building in Montgomery, Ala., two years ago, despite that act's obvious ‹ to all except Moore, apparently ‹ violation of the clause covering separation of church and state contained in the First Amendment to the United States Constitution.

The Alabama chief justice's piety is not at issue here, nor do we mock him for the depths of his religious beliefs ‹ but we find Moore's actions to be more of a danger to the underpinnings of American freedom and democracy than removing a monument to a creed sacred to Christians. America is not a theocracy, unlike the Islamic republics where religion rules supreme. That fact is apparently also lost on Moore, who argues that the removal of the Ten Commandments monument is an assault on God, upon which the "foundation of law in this nation" is built. Our nation's founders were acutely aware of the dangers of theocracy and established religion, after living under the oppressive thumb of the Church of England. Therefore, despite their overwhelmingly Christian backgrounds, one of their first and most elegant acts was the declaration that ‹ in addition to freedom of religion ‹ Americans would also be free from religion. The Ten Commandments, like other religious symbols, belongs in church, not rammed down the people's throats in a judicial setting.

The Alabama Supreme Court recognizes this, and has ordered the monument to be removed from the building. Unfortunately, Chief Justice Moore has decided to turn the religion he professes to believe in so deeply into a three-ring circus, grandstanding on the issue, making pronouncements, and reveling in the popular acclaim. We expect more from those who are tasked with upholding the laws of our nation. If this were a case of simple protest by Christians upset with what they view as an affront to their religion, it would be a totally different matter, and totally within their rights. That right ‹ the right to assemble and petition the government ‹ is also elegantly covered in the First Amendment. Those who enforce, uphold and write our laws, from the youngest rookie cop on the beat to the Chief Justice of the Supreme Court of the United States should not flagrantly violate the laws, even when they run counter to their religious beliefs. If they are unable to do so, they should find another line of work.

Posted August 2003.

Be careful: Big Brother IS watching

By Dennis Neal, opinion editor
The News Leader, Staunton, Va.

The advent of the year 1984 inevitably brought with it critiques of British author George Orwell’s novel about a bleak totalitarian society where dissent was forbidden, war was peace and citizens were spied on ruthlessly. 1984 seemed completely at odds with a society where the worst things that came into view on American “telescreens” (the term Orwell used to describe the ubiquitous two-way spying devices implanted in every Oceanian home), were “Miami Vice” and the latest Van Halen music video.

Twenty years hence, in our Patriot Act-besotted world, Orwell’s vision doesn’t seem too far off the mark. A pair of events on opposite coasts from the week just past illustrate why.

Michael Ramirez is a rarity – a conservative pro-Bush/pro-war in Iraq editorial cartoonist; we can count that species on the fingers of one hand – and yes, our own Jim McCloskey is among their number. Last Sunday’s edition of the Los Angeles Times featured a Ramirez cartoon that drew upon an image from the Vietnam War – the chilling Pulitzer Prize-winning photograph of South Vietnam’s national police commander summarily executing a Viet Cong prisoner on the streets of Saigon.

In the Ramirez version, the prisoner is Bush, the scene is Iraq, and the “police commander is a figure labeled “Politics” holding a pistol to the president’s head. The cartoon was meant to convey Ramirez’ anger about political enemies dissecting the words in the president’s State of the Union address about Iraq’s desire to obtain nuclear weapons material from Africa. In a statement issued by the newspaper, Ramirez explained that the image was meant to represent Bush as “the target, metaphorically speaking, of a political assassination because of 16 words that he uttered.”

The reason Ramirez felt it necessary to explain himself is that he had become a target himself – of the U.S. Secret Service, who visited him after the cartoon had run, viewing it as a “possible threat” to the president.

Here in Virginia, meanwhile, in a venue one would ordinarily associate with freedom of expression – a Borders bookstore in Fredericksburg – a Baltimore performer was banned after she made a light remark about the president. Julia Rose, who is a fitness advocate in addition to being a singer-songwriter, told her audience that “George Bush has chicken legs – he needs to pump some iron.”

That’s it. No comments about being ashamed of Bush like the Dixie Chicks, no hoping that the U.S. lost the war à la Chrissie Hynde of the Pretenders. A silly comment about our president’s lack of buffness was enough to get her ejected from a store where the shelves are lined with the works of writers who are truly critical of the Bush administration – for the time being, anyway.

Welcome to 1984 – it just came 19 years later than George Orwell predicted.

Posted August 2003.