“The First Amendment & Free Speech Under Attack”

(Panelists Floyd Abrams, Anthony Paul Farley, Kristina Findikyan, Richard Honen; moderator Ashleigh Banfield)

Abrams is the nation’s premier First Amendment lawyer-advocate. I’ve quoted him here in 2009 regarding a case he was arguing in the Supreme Court, contending that a movie about Hillary Clinton could not be criminalized. Abrams won the case: Citizens United. I’d planned to ask him about that in the question session — but something else came up.

Trump recently tweeted, “It is frankly disgusting the press is able to write whatever it wants to write.” He added that maybe network licenses should be revoked. Capital punishment for broadcasters? Surely the Courts would not permit that. The Constitution does say the press can “write whatever it wants.” (What is “frankly disgusting” is a president not understanding this.)

But Honen raised an issue about opinion cloaked as news — at what point does a broadcaster cease being a news organization, thus forfeiting its protection? He spoke of a “melding of news and advocacy.”

“Are you talking about Fox News?” said Abrams.*

Hello, corporate attorney Rich Honen — the First Amendment protects expressions of opinion too. Especially that. Duh.

The NFL protest story also came up. Trump’s tweets, suggesting players should be fired, had a “chilling effect” on the NFL. But while players have a right to free speech, they’re not exempt from consequences for their speech. They can be fired; the First Amendment protects only against government, not a private employer. Though Farley argued owners may not really have a right to fire those players, it may be more complicated, a contract issue.

Abrams said the President too has a free speech right, absent making a concrete threat. But he may be abusing that right, which is a social/political/cultural judgment. However, Abrams also said that since the players are exercising their free speech, firing them would violate the First Amendment’s spirit.

Next the issue of free expression at universities — barring, disinviting, or shouting down speakers, enforced political correctness, etc. Prof. Farley (a person of color) dismissed all these concerns as “ridiculous” and “nonsense.” The speech being suppressed he deemed equivalent to “death threats” and “disorderly conduct” and thus rightly barred. When Abrams said that the First Amendment still applies, Farley replied that’s only because we have a “ridiculous reading” of it. He went on with a lengthy convoluted diatribe full of academic sophistry, saying, for example, that anti-discrimination laws somehow serve to facilitate discrimination. And so on like that.

In the question session I said this: “With respect, Professor Farley’s verbiage makes no sense and is an attempt at misdirection from the real issue. It’s not about ‘death threats’ or ‘disorderly conduct.’ Instead it’s about an atmosphere of enforced ideological conformity on campuses, allowing only expression of a narrow catechism of ideological positions, and delegitimizing all others. Many people on the left, it seems, believe in free speech only for themselves.”

Abrams was emphatic in agreeing with me. But Farley again declared “nonsense!” and embarked on another divagation much like his previous one.

When he finished, I said “Nonsense! Once again the professor has said nothing addressing the real issue.”

Then the moderator interjected, “Let’s not say ‘nonsense,’ just say you disagree.”

“I was mimicking him!” I rejoined, pointing to Farley.

[A recent Brookings Institution study finds over 50% of students consider it acceptable to shout down a speaker they don’t agree with, and a large minority even condone doing so with violence. Almost half say the First Amendment does not protect “hate speech.” (It does.)]

* Also mentioned was the effort by Sinclair Broadcast Group to get control of a lot of local news outlets and require them to air right-wing polemical content.