First Amendment Law Prof Blog

Court Martial Protects Soldier's Racist Speech

On Wednesday, the Court of Appeals for the Armed Forces ruled that charges should not have been brought against Pfc. Jeremy T. Wilcox on account of his racist internet profile or the support for White supremacy he expressed to an online undercover agent. 

The majority in the 4-1 decision reportedly found that Wilcox's "disturbing" beliefs and statements violated DoD policy, but did not impact his military performance or working relationship with other soldiers.

The case isn't up on Westlaw yet so I'm working off of press coverage here, but Im struck by a couple of points.  US soldiers don't have the same First Amendment rights as civilians and can be disciplined for expressive speech, conduct or associations that interfere with military objectives in a way ordinary folks could not.  Here's the DoD policy on extremist groups:

Military personnel must reject participation in organizations that espouse supremacist causes; attempt to create illegal discrimination based on race, creed, color, sex, religion, or national origin; advocate the use of force or violence; or otherwise engage in efforts to deprive individuals of their civil rights.  Active participation, such as publicly demonstrating or rallying, fund raising, recruiting and training members, organizing or leading such organizations, or otherwise engaging in activities in relation to such organizations or in furtherance of the objectives of such organizations that are viewed by command to be detrimental to the good order, discipline, or mission accomplishment of the unit, is incompatible with Military Service, and is, therefore, prohibited.

News reports don't specify, but prior proceedings make it appear that this is the directive Wilcox violated. 

Leaving aside whether this "viewed by the command" standard allows any meaningful review, the very decision to bring charges means the command considered Wilcox's behavior detrimental to good order, discipline or military objectives, most likely because it cast the military in such a bad light publicly.  And if his behavior did violate DoD policy, as the majority reportedly said it did, why does it matter that it did not impact his working relationships or performance?  Measuring the degree of actual or potential disruption to operations is part of the inquiry in your run of the mill workplace free speech case (and even there great deference is given to the employer's judgment), but its surprising that a military court drawn from military officers wouldn't give more deference on that point to the judgment of commanders on the ground.  Again, relying on the press reports, the majority said that Wilcox believed he was speaking to a friend of like mind, not a fellow soldier.  But I'm not so sure why that matters when he identified himself as "US Army Paratrooper" to anyone on the internet with access to his posts or profile. 

In advance of the opinion's release, perhaps there's a military expert out there willing to shed some light on the case . . . or provide an advance copy?

-Kathleen A. Bergin

disclaimer: the post is not an endorsement of existing military speech restrictions but simply thoughts on the case as its been reported in light of existing rules and regulations. 

crosspost: Faculty Lounge

Hatfill loses case agaisnt NYT

The Fourth Circuit on  Monday handed a major victory to The New York Times when it affirmed the dismissal of a defamation lawsuit brought by biodefense scientist Dr. Stephen J. Hatfill.  Hatfill claimed that NYT columnist Nicholas Kristoff "effectively" accused him of involvement in the anthrax mail attacks that left five people dead in 2001.  But Hatfill could not prevail on the defamation claim, the court ruled, because he was a "limited-purpose public figure" who did not demonstrate that the columns were published with "actual malice."

Access the opinion by Judge Niemeyer in Hatfill v. New  York Times.

Kathleen A. Bergin

Questioning of Arlington Cemetery Restrictions on Press Presence at Veterans' Funerals Costs Public Affairs Director Her Job

An editorial in Monday's New York Times spotlights the recent firing of the public affairs director at Arlington National Cemetery, a move the Times connects to her complaints about cemetery rules changes requiring members of the press to stay fifty yards away from burial services. This distance prevented reporters and photographers from hearing or photographing the funerals of service members. Although Pentagon representatives cited the wishes of grieving families as the basis for the press restrictions, the fired public affairs officer, Gina Gray, has alleged that cemetery officials had been contacting families and urging them to refuse to allow press coverage at Arlington burials, a charge cemetery officials dispute.

Linking the Arlington restrictions to the earlier Pentagon ban on the photographing of the coffins of soldiers killed in Iraq and Afghanistan, an effort widely criticized as an attempt to prevent the American public from appreciating the tragic costs of the war, the Times editorial concludes as follows:

[T]he wishes of families that do not want news coverage should be taken into account. But surely eulogies for fallen soldiers and respectful depictions of final rituals should not be denied a place on the public record when grieving families wish coverage. Graveside is the last chance for a nation to remember those lost on its behalf.

Washington Post reporter Dan Milbank has provided prior and more detailed coverage of Ms. Gray's firing and the events that preceded it.

The potential value of documenting military families' experience of loss and the intertwined delicate questions of respecting boundaries for persons in the throes of shock and mourning can be appreciated in the work of Rocky Mountain News reporter Jim Sheeler. Sheeler received the 2006 Pulitzer Prize for his coverage of the process by which miltary families learn of their loves ones' deaths and has recently published a book based on that reporting, "Final Salute - A Story of Unfinished Lives".  Presented with a New York Times review of "Final Salute", a heartbreaking slideshow of photos from the book demonstrates the power of these intimate images of grief.  Sheeler and Marine Lt. Col. Steve Beck, who has had to deliver death notifications to Marine families, discuss the book and its haunting subject matter on a recent broadcast of The Newshour with Jim Lehrer.

    

JFB

First Amendment Scholarship Update

New scholarship on First Amendment topics include the following papers:

1)Ronald J. Krotoszynski, Jr. (University of Alabama School of Law) & Clint A. Carpenter ( Law Clerk to the Honorable Norman K. Moon, United States District Court for the Western District of Virginia; J.D., Washington and Lee University School of Law, 2007), The Return of Seditious Libel, 55 UCLA L. REV. 1239 (2008). The abstract states:

Does the First Amendment protect a speaker’s interest in reaching a particular audience if the expressive activity occurs in a traditional public forum? The intuitive answer to this question might be “yes” or “usually,” but the federal courts have taken a decidedly different approach—at least when the intended speech is political protest and the intended audience includes high-ranking government officials or political party leaders. Indeed, so long as government efforts to squelch political dissent invoke the talisman of “security” and are facially content and viewpoint neutral, the Speech and Assembly Clauses of the First Amendment have proven remarkably ineffective at protecting an individual’s right to protest in a location physically proximate to incumbent government officials—even in a traditional public forum.

This Article questions whether genuine security concerns actually motivate the censoring of political dissent. It posits instead that judges have wrongly permitted local, state, and federal officials to equate the government’s dignity interests with its national security interests. In short, avoiding embarrassment as a result of media coverage, as much as genuine concern about public safety, undergirds decisions to squelch dissent proximate to the venues in which major political theater occurs. This practice of censoring core political speech to avoid embarrassing incumbent politicians constitutes a limited return of the doctrine of seditious libel, which also equated the embarrassment of government officials with harm to national security.

Consistent with the oft-forgotten Petition Clause of the First Amendment, which proclaims “the right of the people . . . to petition the Government for a redress of grievances,” this Article argues that citizens should have a right to bring grievances to the personal attention of their ostensibly democratically accountable government. As an historical matter, the First Amendment right of petition carried with it absolute immunity from prosecution for seditious libel: Citizens could bring complaints, both in person and in groups, to government officials to seek a redress of grievances without fear of reprisal. In the early years of the Republic, however, the Petition Clause fell into desuetude because abolitionists engaged in what pro-slavery members of Congress characterized as “abusive” petitioning of the federal government to abolish the practice of human slavery. The Petition Clause has never recovered from this most odious legal and political banishment. This Article argues that federal courts should restore the relevance of the Petition Clause by using it to establish a qualified right to demonstrate in public forums within the sight and hearing of government officials and party leaders.

2) Keith Hylton (Boston University - School of Law), Yulia Rodionova (UCL SSEES),and Fei Deng (National Economic Research Associates),  Church and State: An Economic Analysis. The abstract states:

What purpose is served by a government's protection of religious liberty? Many have been suggested, the most prominent of which center on the protection of freedom of belief and expression. However, since every regulation potentially interferes with religious freedom, it is useful to consider more concrete purposes that could suggest limits on the degree to which religious liberty should be protected. This paper focuses on the concrete economic consequences of state regulation of religion. We examine the effects of state regulation on corruption, economic growth, and inequality. The results suggest that laws and practices burdening religion enhance corruption. Laws burdening religion reduce economic growth and are positively associated with inequality.

3) Martin R. West (Harvard University - Graduate School of Arts and Sciences), Ludger Woessmann (University of Munich - Ifo Institute for Economic Research (Ifo Institute for Economic Research). 'Every Catholic Child in a Catholic School': Historical Resistance to State Schooling, Contemporary Private Competition, and Student Achievement Across Countries,
CESifo Working Paper Series No. 2332. The abstract states:

Nineteenth-Century Catholic doctrine strongly opposed state schooling. We show that countries with larger shares of Catholics in 1900 (but without a Catholic state religion) tend to have larger shares of privately operated schools even today. We use this historical pattern as a natural experiment to estimate the causal effect of contemporary private competition on student achievement in cross-country student-level analyses. Our results show that larger shares of privately operated schools lead to better student achievement in mathematics, science, and reading and to lower total education spending, even after controlling for current Catholic shares.

4) Karol Edward, SoBtan (Affiliation Unknown) Constitutional Patriotism and Militant Moderation, 6 Intl. J. of Const. Law 96 (2008). The abstract states:

Constitutional patriotism is a form of political loyalty combining a commitment to universal principles with a love of a unique object of loyalty, and with a special connection to a constitution. This paper outlines a version of constitutional patriotism with three distinctive characteristics. First, constitutions are not the object of the loyalty, but its most important expression. Second, constitutions are seen as commitments to a certain form of moderate politics. And, finally, constitutional patriotism can be directed toward many different objects of loyalty, but only when it can be simultaneously directed toward a universal civilization. Constitutional patriotism seems to be the best possible form of political loyalty, and hence the form we should adopt. Loyalty is not necessarily always a virtue. But a certain form of loyalty (constitutional patriotism)-to individuals and groups, institutions and causes that deserve loyalty-is a virtue. There are many conceptions of constitutional patriotism; this paper argues in favor of one that expresses a passionate, ambitious, and militant moderation.

5) Richard Delgado (University of Pittsburgh - School of Law ), Of Cops and Bumper Stickers: Notes Toward a Theory of Selective Prosecution, 57 Syracuse L. Rev. 175 (2007). The abstract states:

The author, Professor Richard Delgado, takes as his point of departure a remark by the chair of the University of Colorado committee that voted academic sanctions against Ward Churchill. This essay explores the role of retaliatory motives in academic misconduct cases. In Churchill's case, Colorado authorities delved deeply and painstakingly into Churchill's publications only when it appeared that the state could not fire him from his tenured position for his inflammatory remarks on the victims of the 9/11 tragedy. What bearing should the investigation's relation to the hue and cry that led to it have on its own legitimacy?

Professor Delgado examines various possible frameworks for analyzing cases like these and argues that the committee chair's way of seeing the matter was the incorrect framework.

6) Alan E. Brownstein (University of California at Davis Law School), The Nonforum as a First Amendment Category: Bringing Order Out of the Chaos of Free Speech Cases Involving School Sponsored Activities,    The abstract states:

This article critically evaluates the way that federal courts adjudicate student free speech claims arising out of school sponsored activities. In doing so, it challenges conventional orthodoxy in several ways. First, it rejects the often stated truism that student free speech rights at school are less rigorously protected than the rights of speakers outside the school environment. In fact, under current authority, students at public school often have greater free speech rights than adults in other areas of public life. Second, it contest the way that most federal courts interpret and apply Hazelwood v. Kuhlmeier, the controlling Supreme Court decision in this area, by arguing that school sponsored activities should not be characterized as a nonpublic forum in which viewpoint discriminatory regulations are prohibited. The article also suggests that a key factor in the Hazelwood analysis - whether the expressive activity at issue bears the imprimatur of the school - is largely irrelevant to the free speech analysis in these cases.

As an alternative to the current morass of inconsistent decisions and incoherent analysis in this area, I argue that school sponsored activities should be characterized as a nonforum - a new free speech category developed in the article. The nonforum category covers government property or activities that should not be subject to judicial review under the free speech clause. As a working definition of the category, nonforums involve intrinsically and pervasively expressive government property and activities where the burden of complying with free speech requirements would unreasonably interfere with the activity's purpose or the use to which the property was being put. They also involve government functions which, for separation of powers and federalism reasons, should not be subject to intrusive judicial review under the free speech clause.

7) R. George Wright (Indiana University Purdue University- Indianapolis), Doubtful Threats and the Limits of Student Speech. The abstract states:

The purposes of public schools are widely recognized to be various, even if we disagree over specific lists of such purposes, or over their tradeoffs and priorities.

It would, however, be a serious mistake not to attend to the basic widely acknowledged missions of the public school when we must shape school speech law.

The full text of the Wright paper is not yet available on SSRN. The Wright and Brownstein papers will be published in the forthcoming symposium edition of the UC Davis Law Review. The title of the symposium was "First Amendment Rights in America's Public Schools - From the Schoolhouse Gate to the Courthouse Steps". The link to the webcast of the full set of symposium presentations is available in the immediately preceding port.

JFB   

Webcast of UC Davis Symposium on Student Speech in Public School

In  March, UC Davis held a symposium entitled "First Amendment Rights in America's Public Schools -
From the Schoolhouse Gate to the Courthouse Steps". The webcast presents video of the following sessions: 

Panel 1: From Tinker to Morse ? Limits on Student Expression at School - Presentations by Professor Vikram Amar of UC Davis, Dean Kenneth Starr Pepperdine School of Law, and Professor George Wright of Indiana University School of Law - Indianapolis.    

Panel 2: The Control of Student Expression During Curricular Activities - Presentations by Professor Alan Brownstein of UC Davis, Professor Erwin Chemerinsky, then of Duke Law School, and Professor Gia Lee, UCLA Law School

Panel 3: Religious Exercise, Expression, and Association in Schools -Presentations by Professor Melissa Rogers of Wake Forest Divinity School, Professor Steven Smith of University of San Diego Law School, Professor Joan Howarth of UNLV School of Law, and Professor Steve Green of Willamette University Law School.

JFB