First Amendment Law Prof Blog

Freedom For The Thought That We Hate: Interviews and Reviews

Deborah Solomon interviews Anthony Lewis on the release of his newest book Freedom for the Thought that We Hate:  A Biography of the First Amendment.  Lewis, a two time Pulitzer Prize winner, is also the author of Gideon's Trumpet, the story behind the Supreme Court decision that recognized a Sixth Amendment right to counsel, and Make No Law: The Sullivan Case and the First Amendment.

Lewis's latest work is reviewed this Sunday by Jeffrey Rosen in The New York Times Review of Books.  The Christian Science Monitor has more.

Lewis spoke with Tom Ashbrook of Boston's NPR station WBUR on Friday.  Audio links available here.   

-Kathleen A. Bergin

 

City Adopts Controversial Flag Display Ordinance

Joel Burgess reports for the Asheville, North Carolina Citizen-Times that the city is under fire for a new flag display ordinance that raises First Amendment concerns.  The regulation requires that businesses comply with federal standards governing where, when and how the US flag may be displayed, including prohibitions on flying most flags in bad weather or at night without illumination.  City officials say the ordinance aims to ensure that the flag is not "exploited for commercial gain."

Experts point to several elements of the law that would make it difficult to defend in court.  That the ordinance applies to businesses only, and not individuals, churches or other entities, is one problem.  Another is that it applies to US flags only, and not other types of banner or similar displays. 

In 1989, the US Supreme Court held in Texas v. Johnson that flag burning is protected by the First Amendment.  That case alone may call into question whether even the US flag code itself is constitutional.  Quoting The First Amendment Center's Ronald Collins, "If you can burn a flag, you can probably fly it at night and not shine a light on it."

The Citizen-Times report includes links to the Asheville ordinance, as well as the US flag Code.

-Kathleen A. Bergin

City Considers Ban on Swearing in Bars

City officials in  St. Charles, Missouri will meet on January 14 to consider a measure to ban swearing in bars, the AP reports.  Council Member Richard Veit introduced the proposal, saying it would help discourage disruptive behavior in the historic downtown area, and provide enforcement guidelines for police.  The proposal is reported to cover indecent, profane or obscene language, songs, entertainment and literature.  Rightly so, bar owners say the measure is too vague to enforce and would violate their rights. 

Access prior posts on profanity-related First Amendment controversies here.

-Kathleen A. Bergin

Yemen: Article 19 Reports on State of Expressive Freedom

Article 19 released a 35 page report available in Arabic and English on the state of freedom of expression in Yemen.  Yemen: Freedom of Expression in Peril highlights a series of post-9/11 developments that have blunted the force of constitutional changes and legislative reforms that began in the 1990s.  Since 2002, Yemen's position on the world press freedom index fell from 103 to 140 out of 168.  The report examines restrictions on media access and publication, and chronicles a rise in journalist prosecutions and attacks. 

The report also contains a significant discussion of the obstacles female journalists and activists face in seeking to exercise the right to freedom of expression, including government-initiated "smear campaigns" that undermine their professional "credibility" and place them at risk of significant harm by questioning their "morality" and "honour."

-Kathleen A. Bergin

US Supreme Court: Oral Arguments in Crawford v. Marion County

The Supreme Court today heard arguments in the consolidated cases of Crawford v. Marion County and Indiana Democratic Party v. Rokita, involving a First and Fourteenth Amendment challenge to Indiana's voter ID law.  Access oral argument transcripts at the SCT website.  Nina Totenberg provides a summary for "All Things Considered;" audio and web transcript available from NPR.  How Appealing links to more articles and analysis from the New York Times, the Washington Post, Law.com and others.

Many reports predict a 5-4 split, with Justice Kennedy providing the critical vote to uphold the law.  A additional question, however, is whether the Court would leave open the possibility of "as applied" challenges in the future based on the actual exclusion of particular voters.  Rick Hansen discusses several adverse consequences likely to arise from that approach at Electionlawblog.com.

-Kathleen A. Bergin

PBS Documentary "The Jewish Americans" Begins Tonight

The first installment in the six part  PBS documentary, "The Jewish Americans", airs tonight on many public television stations. Tom Shales provides a review in today's Washington Post.

JFB

Arkansas Judge Denies Access to Execution

Just two days after the United States Supreme Court heard oral arguments on constitutionality of lethal injections in Baze v. Rees, the Associated Press reports that a federal judge in Arkansas has ruled that the First Amendment does not guarantee a right of access to all parts of an execution.  The case was brought by the Arkansas Civil Liberties Foundation on behalf of The Northwest Arkansas Center for Professional Journalists, The Arkansas Times, and its editor Max Brantley.  Under Arkansas law, executions must be attended by two members of the media, but witnesses are not allowed to observe the process by which intravenous drugs are inserted into the prisoner.  Media organizations argued in their complaint that complete access to the entire execution process is necessary to ensure government accountability. 

Access to execution procedures varies by state.  In 2002, the 9th Circuit Court of Appeals held in California First Amendment Coalition v. Woodford that the First Amendment guarantees the public a right to view executions from the moment the prisoner is escorted into the chamber through the procedures that are inexorably intertwined with execution. 

-Kathleen A. Bergin

City Seeks to Control Means of Communicating to the Press

The City Council in Temecula, California is considering a proposal that would require any communication between city officials and Press Enterprise to be done in writing.  A staff report describes the purpose of the proposal as a way to "ensure accuracy and effective flow of communication," but observers suspect the city is retaliating for an article in the Riverside-based newspaper that suggested a conflict of interest from the relationship several council members had with a local developer. 

While it is not uncommon for the government to designate a communications spokesperson to track media requests and responses, significant First Amendment concerns arise when one publication is treated differently or provided less access to government information than other publications.

-Kathleen A. Bergin      

Vote Set on New Jersey Bias-crime Bill

Bob Makin reports for The Home News Tribune:

Clergy in New Jersey fear legislation to tighten bias-crime laws will limit free speech. But at least one clergyman — and a Middlesex County legislator who co-sponsored the bill — said those concerns are misplaced.

On Thursday, the state Senate unanimously passed a bill to amend the 1993 law to specifically include gender identity and national origin and to broaden the law to include school bullying and to establish the Commission on Bullying in Schools.

The Assembly will vote today on a companion bill.

Hate crime, bullying and other forms of intimidation, particularly against youth by peers, are on the rise in New Jersey, said the Rev. Bruce Davidson, director of the Lutheran Office of Governmental Ministry within the state Senate.

Any legislation that aims to curb that trend is good, Davidson said.

But other clergy members said that they feel the word "intimidation" is not clearly defined by the legislation, which was sponsored by Sen. Barbara Buono, D-Middlesex, and Sen. Loretta Weinberg, D-Bergen. . . .

-Kathleen A. Bergin

Canada: Islamic Congress Seeks Right of Reply

The Canadian and British Columbia Human Rights Commission is investigating a complaint brought by The Canadian Islamic Congress which says that Maclean's Magazine engaged in hate speech when it published an excerpt from "America Alone" in which author Mark Steyn warns against a threat to democracy posed by high Muslim birthrates and quest for "jihad."  The group has asked government officials to provide it with an opportunity to rebut the claim with an article of equal length.  The magazine's publisher says he is willing to consider some accommodation but objects to a government body setting the terms of publication.

The Canadian constitution protects freedom of expression but permits restrictions on hate speech. 

Canadian Press has more.

-Kathleen A. Bergin