It’s a “volatile” time for speech rights, panelists on an American Bar Association program on free speech agreed Nov. 29.
That morning, President-elect Donald Trump had tweeted that “Nobody should be allowed to burn the American flag,” and suggested loss of citizenship as a punishment.
Memo to Trump: flag burning is a constitutionally protected form of expressive conduct.
The public vitriol aimed at the press, however, can’t just be explained by Trump’s dislike of it, panelist Gene Policinski said.
Policinski is senior vice president of the Newseum’s First Amendment Center.
It’s been brewing, he said.
People feel they want to send a message, Policinski said.
“Tell that arrogant press they can’t get away with that!” is what they feel, he said.
Which is what happened in Hulk Hogan’s lawsuit against Gawker Media.
The semi-retired professional wrestler sued the company for invasion of privacy after it posted a sex tape featuring him and another woman.
Hogan was awarded more than $100 million in March and Gawker ultimately declared bankruptcy because of it.
The Gawker/Hulk Hogan sex-tape trial “presages an attempt to carve out an exception to Sullivan for public figures,” Policinski said.
This could happen if courts develop a greater or larger exception for public figures for “private” areas of their lives, he told Bloomberg BNA in an email.
In N.Y. Times v. Sullivan, the Supreme Court held that a public official suing for damages in a libel suit must prove actual malice.
It doesn’t seem likely, however, that we’ll see an assault on Sullivan, panelist Paul M. Smith said.
Smith is a partner at Jenner & Block and is co-chair of its Media & First Amendment practice.
This is because the conservatives on the court are greater champions of First Amendment rights than the liberals, Smith said.
At the Federalist Society’s annual lawyer’s convention in November, Justice Samuel Anthony Alito Jr. bemoaned the fact that liberals have lost sight of the free speech doctrine, Catherine J. Ross said.
Ross is a first amendment professor at George Washington University Law School in Washington who specializes in student and campus speech.
Ross addressed the conflict between free speech and inclusiveness occurring on university campuses, where students are demanding that universities shut up offensive or hateful speech.
“Students are adults and get the full protection of the First Amendment,” she said.
“We need to revitalize the basic principles of free expression and why they’re so important to democracy,” Ross said.
The press may be diminished in numbers but “we still have a responsibility” to report and we have the backing of the First Amendment, Policinski said.
“We can get back public support,” he said.
If the Trump administration tries to refuse to issue press passes to reporters or makes it onerous for reporters to follow through on Freedom of Information Act requests, we will adapt, Policinski said.
“It’s going to call for editors to step up” and find different ways to cover news, he said.
Ultimately, the truth will prevail, Policinski concluded.
Keep up with the most significant cases and key legislative, regulatory, and Supreme Court developments with a free trial to United States Law Week .
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