Thursday, November 29, 2007

Evolution Only?

It is a popular misconception that the clause “separation of church and state” exists in the Constitution. That exact phrase was coined by Jefferson in a letter to a church (1), but the principle is one that has been upheld by the Supreme Court because of its constitutional basis in the First Amendment. The First Amendment has two religious clauses: the Establishment Clause and the Free Exercise clause. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” (2). The former merely states that the government shall not endorse an official religion, while the latter obviously allows one to practice his or her own religion.

While the Supreme Court has dealt mainly with cases concerning prayer and the displaying of religious icons in public places, there have been several cases in federal and lower courts dealing with the question of whether religious models of the origin of life should be taught in schools. Historically, the question has been whether to allow evolution to be taught in schools, but evolution has typically prevailed after the Supreme Court ruled in Epperson v. Arkansas (3) that any bans on teaching evolution in school violated the Establishment Clause (of course, the controversy of evolution v. creationism originated with the famous Scopes Trial of 1925). Recently there has been a controversy surrounding the federal case of Kitzmiller v. Dover Area School District regarding the validity of teaching intelligent design in schools as an alternative to creationism (4).

While I am not going to debate to what extent intelligent design resembles or does not resemble creationism, I am in agreement with the U.S. District Court for the Middle District of Pennsylvania, which ruled that teaching intelligent design violates the Establishment Clause of the First Amendment (4). Intelligent design, after all, does assume the existence of a supernatural "designer" and has no basis in scientific fact. Evolution may be called a theory, but there is a consensus in the scientific community about its validity (theory is a misleading term at times; technically gravity is a theory too, but no one will challenge its validity).

It is true that by teaching intelligent design, the state, through the school, would seem to be endorsing religion. But at the same time, doesn't the free speech clause of the First Amendment hold priority over the other clauses? Shouldn't teachers have the academic freedom to teach alternative theories, especially since the subject matter concerned is also endorsed by the parents of students? These parents are the ones who are mostly paying for their kids' education, and they did not send their kids off to school to learn material that they do not approve of. In the Kitzmiller v. Dover case, of course, it was the opposite way around; teachers and parents objected to the school board's endorsement of intelligent design, but I believe that in most cases the former assumptions hold true.

After all, proponents argue that there is no harm in letting students know about an alternative view. Students should be able to make up their own mind concerning whether intelligent design, creationism, or evolution is the best theory. All viewpoints should be heard so that truth can prevail in the marketplace of ideas, and even false theories shouldn't be suppressed just because they are false.

I personally believe that it is in the students' best interests to learn a scientific theory instead of a religious one in a science class. In a religious studies class, students should be free to learn all about the Bible, but there is no and can be no scientific evidence for intelligent design or creationism because they involve proving the existence of a Creator himself, a formidable task many philosophers have attempted (and failed, in my opinion, for it is a matter of faith). Furthermore, it is not the interests of the parents or teachers that the Establishment Clause is protecting in this case. It is protecting the minority from the tyranny of the religious majority. This case illustrates the basic principles of the separation of church and state; that is, protecting nonbelievers and those of different faiths from the proselytizing of one religious sect's views.

And while the marketplace of ideas may lead students to truth eventually if they are given choices of what theories to accept, imagine the controversy that would occur in other subjects if theories not held by the consensus of academics were taught. If a Communist or Fascist interpretation of history were taught in an American history class, I am sure that not many would be keen on accepting this alternative "theory" of history.


Thursday, November 15, 2007


Undoubtedly the Holocaust was a nadir for humanity. The story of the systematic killing of about 6 million Jews is taught throughout most of the world as the worst atrocity that could ever happen. However, in spite of the overwhelming academic and public consensus on the facts and existence of the Holocaust, some believe that this event did not occur. They claim that the Holocaust was a hoax, “a deliberate Jewish conspiracy to advance the interest of Jews at the expense of other people” (1). These Holocaust deniers have spurred outrage among not only survivors but many others sympathetic and cognizant of the horrors of the Holocaust.

Holocaust denial is a crime in thirteen countries: Austria, Belgium, the Czech Republic, France, Germany, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, and Switzerland (1). Despite the existence of these anti-hate speech laws, there are fears that Holocaust denial is spreading due to lack of awareness among youth. Since more than 60 years have passed since the Holocaust and there are less and less survivors alive to tell their stories every year, scholars are afraid that people will forget. “In 50 years from now, not only will there be no survivors alive, there won’t be anybody alive who even knew a survivor…” says Mr. Greenberg, president of a historical foundation (2). The promotion of Holocaust denying materials on the Internet is also a new cause for concern because many youth are unable to distinguish legitimate historical sites from false ones (2).

The existence of Holocaust deniers poses a distinct First Amendment problem, if the First Amendment were to be applied to European countries. For instance, a Frenchman named Vincent Reynouard was recently convicted and sentenced to one year in prison (with substantial fines) for publishing and distributing a pamphlet called “Holocaust? The Hidden Facts” disagreeing with the fact that six million Jews were killed (3). In the United States this conviction would be considered a case of subsequent punishment and infringement upon the freedom of speech. This hate-speech problem is more nuanced, however, than merely prohibiting the expression of one’s opinions concerning a controversial issue. Denying the Holocaust is also a distinct denial of the truth.

In fact, the French are accused of being hypocritical because they do not suppress any other expressions of falsity. “It is also not a crime for any politician in any European country to go to elections and lie to the nation about anything, including election promises…No citizen can bring a charge against anyone…for lying is not considered a crime under the law” (3). Prosecuting every instance when someone lied would seem to be a logistical impossibility, not to mention inherent problems in proving the truthfulness of an expression. In addition, shouldn’t preventing politicians from lying be a concern for the public interest of France also?

Nevertheless, the problem with Holocaust-deniers is that there is no doubt that what they are espousing is an untruth, so there is no need to prove the falsity of their assertions. Moreover, Europeans have been affected far more by the Holocaust than Americans have. How would we feel if someone denied the existence of Vietnam? Or the Civil War? There is assumedly a greater public interest in protecting the sensibilities of Holocaust survivors and their supporters than in assuming the risks of allowing Holocaust deniers to speak, which could include condoning genocide and allowing public attitudes towards it to become so lax that another genocide could possibly occur.

While I nevertheless believe that freedom of speech should be triumphant in this case, since truth is not a prerequisite for speech and the prerogatives of the speaker must be protected from governmental interference, there is the issue of solving this problem of anti-Semitism. Legislating it away is only a superficial solution. Education is the key towards instilling more tolerance in the people of both Europe and America.

Couldn’t one argue, however, that censoring of Holocaust denials constitutes education by the government? After all, people do learn the necessary lesson from this suppression and the existence of the Holocaust is upheld by the government reaffirming it through court rulings. This argument seems spurious to me, however, and various analogies could be applied to prove its invalidity, i.e. government suppression of Communists during the McCarthy era was not justified just because it can be said that the government was attempting to “educate” people about the evils of Communism.

There is an issue, however, in allowing Holocaust deniers to educate our youth. A ramification of this conflict occurred in the British courts, when historian David Irving, a Holocaust denier, filed a libel suit against Deborah Lipstadt for calling him a Holocaust denier (4). The court affirmed that Lipstadt’s allegations were correct and the judge caustically ruled that Irving had “deliberately misrepresented and manipulated historical evidence” (4). Thus the question arises of whether to allow Holocaust deniers to teach in schools because their beliefs may bias an accurate representation of history.

His defenders say that one should “judge what they [historians] do not by political intent, but by whether they produce work based on evidence” (5). His detractors counter that “[his] values are responsible for ultimately debilitating flaws in his work” (5). If a public school or university fired him, that would essentially constitute an infringement on his civil liberties: specifically on his freedom of association and right to hold his own expressions. If private institutions refuse to associate with him, that is their right as well. But the issue in the former instance is one of governmental suppression and censorship reminiscent of the blacklisting of Communist teachers during the McCarthy era. Should one be punished for his beliefs if they are driven by anti-Semitism and condemned throughout most of the world?

I would object to governmental punishment because the government should uphold the rights of all citizens under the law to prevent undue oppression and expansion of governmental power, but personally private blacklisting seems justified in this case.






Thursday, November 8, 2007

Freedom of Association

What exactly is freedom of association? It is not one of the five freedoms listed in the First Amendment—freedom of speech, freedom of religion, freedom of the press, freedom of assembly, and freedom of petition (1). However, some rights in the Constitution do not have to be enumerated clearly and distinctly in order for the Supreme Court to interpret that they are there.

An example is the right to privacy, which formed the controversial basis of Roe v. Wade (2). The Supreme Court ruled that women had the right to choose an abortion based on the right to privacy inherent in the Due Process Clause of the Fourteenth Amendment (2). This right to privacy, or a “guarantee of certain areas or zones of privacy,” is implied in the Constitution in the First, Fourth, Fifth, Ninth, and Fourteenth amendments, as well as in the “penumbras” of the Bill of Rights (2). Although opponents of the right to privacy have alleged that it is a construct of judicial activism and implied nowhere in the Constitution, the basic premise behind it—that an individual should be protected from government intrusion into private affairs—is one that undoubtedly most Americans would agree with.

Similarly, freedom of association is also a protection from governmental intrusion into private affairs—it encompasses an individual’s right to form relationships and interact with whatever groups and individuals one chooses. The Supreme Court has recognized two forms of freedom of association: intimate association as well as expressive association (3). The former stems from the right to privacy and establishes that an individual can form intimate relationships with whomever he wishes, and the latter stems from the First Amendment’s rights to assembly and free speech. We shall only be concerned with the latter right here.

The freedom of expressive association, in other words, encompasses an individual’s right to express his views by joining a group with whom he identifies. As a member of this group, an individual has the freedom to assemble with this group and speak out on behalf of it. An individual also has the right to divulge information about the group or to keep it secret as he wishes. Furthermore, in order for a group to qualify for protection under freedom of expressive association, it must be “defined by common political, cultural or economic activism” (4). Thus government cannot oppress an individual merely for associating with one group or another because the activities of that group fall under First Amendment protections.

Freedom of association protects—or should protect—unpopular minorities from oppression by the majority. For instance, in NAACP v. Alabama, the Supreme Court ruled that the state could not force the NAACP to reveal the names of its members (4). This is because the Court recognized that by naming names, the NAACP would compromise the confidentiality of its members and their ability to express their message would be undermined. In a period when civil rights issues were very controversial, revealing the identities of NAACP members in a location in which they would probably face censure and discrimination would limit their freedom of speech. Even though private organizations or individual citizens would most likely carry out this discrimination, the state still has a role in attempting to force the NAACP to name names. Thus the Supreme Court is protecting the right of members of the NAACP to freely associate with that group and their freedom to not speak out on sensitive group information.

Now freedom of association can become controversial because it implies the freedom to not associate with a group or individual of one’s choosing as well (5). Therefore the state cannot force a private organization to associate with individuals whom it excludes from its membership. This was established by Boy Scouts of America v. Dale, in which the Supreme Court ruled that the Boy Scouts had the freedom to fire a gay scoutmaster based on its expressive belief that homosexuality is unacceptable (6). Thus the Supreme Court ruled that the New Jersey state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation did not apply to the Boy Scouts as the Boy Scouts are considered an expressive private organization. In this case the Supreme Court prevented the New Jersey government from interfering with an organization’s freedom of association. This case does not indicate that anti-discrimination laws are invalidated completely. For instance, it is illegal to discriminate in hiring because of the Civil Rights Act (7). This is because there is a greater interest in protecting the Fourteenth Amendment rights of groups that have been historically discriminated against in the case of employment. In general, however, freedom of association indicates that private groups are free to discriminate if they are expressive organizations.

A court which espouses freedom of association must be a principled one. It will come under attack from both supporters of diversity and opponents of diversity. But its stand on freedom of association—that it should be equally applied to all—is the most tolerant one. Freedom of association will function best to protect a democratic society and system of government only when it is applied judiciously, however. The Supreme Court can easily abuse its application of the freedom of association to discriminate or to mandate relationships. We must trust the judicial branch of our government to function independently and justly so that our own freedom of association is free from governmental interference.

Disclaimer for the last paragraph: I recognize that the Supreme Court and the judicial branch are not the same entity.However, the Supreme Court is the most prominent representation of the judicial branch, and my use of it can be interpreted as synecdoche.
















Thursday, November 1, 2007

A (Biased) Horse Race Trailing the 2008 Presidential Campaign?

Ever since taking AP U.S. Government in high school, I’ve been curious to learn more about the 2008 presidential election, which will be held on November 4, 2008 (1). But where to turn for accurate and unbiased information covering the presidential campaigns out there? The only piece of information I remember learning in class about media coverage of presidential campaigns is that they always focused too much on the horse race of campaigning instead of relevant issues. Is there a way of changing this without infringing upon the media’s First Amendment freedoms of speech and press?

“Horse race coverage” focuses on the competitive aspects of the campaign—who’s ahead in the polls, which dirty tactics each campaign is using, and the amount of fundraising conducted. This type of reporting has been criticized for unfairly giving too much attention to candidates in the lead and for ignoring important topics such as a candidate’s background or stance on salient issues (2). The persistence of horse race coverage in the media today is well-documented in a recent study surveying 1, 742 news stories by the Project for Excellence in Journalism and the Joan Shorenstein Center on the Press, Politics and Public Policy at the Kennedy School at Harvard (3). This study reveals that 63% of all of the stories focused on the “political and tactical aspects of the campaign,” while only 15% focused on candidates’ policy proposals and only 17% focused on their personal backgrounds (4). This is sharply divergent from what the public wants the media to cover, according to a poll by The Pew Research Center for the People and the Press. This poll demonstrates that a majority of Americans want to learn more about candidates’ positions on the issues (77%), their personal backgrounds and experiences (55%), and information about lesser-known candidates (55%) (4).

This disparity between the realities of horse race coverage and the desires of the American public necessarily lead to a sober consideration of what can be done to change this situation, if anything. A libertarian interpretation of the circumstances results in the conclusion that the media cannot be fettered by the government in its editorial discretion. The government would necessarily be the judge regulating media coverage and determining whether or not something constitutes “horse race coverage,” a vague and ambiguous term. Thus the government could easily abuse its power and censor the media unnecessarily (prior restraint warning bells, anyone?). Logistically, also, the task seems impossible—there are so many subjective interpretations of whether or not an article is “tactical.” Furthermore, there is no selective audience here. Even if the mainstream media failed to provide crucial information, the public could always divert its attention to other forums such as the Internet.

But neoliberals would take a different stance. The role of the media as the Fourth Estate, after all, is to act as check on the government. This would seem to be in line with the libertarian interpretation of the situation. However, the media is also important in promoting the welfare of a democracy by necessarily serving a crucial role during election time. As former Senator Paul Wellstone says, “We depend on the media for the free flow of information that enables citizens to participate in the democratic process” (5). What exactly should the nature of this “free flow of information” be, however? The majority of the public seems to believe that the media is not doing its duty in presenting all of the relevant information needed to select the best candidate for President. The public knows almost nothing about the least-covered candidates who could potentially be powerful contenders. Without a transparent presentation of all of the facts, the public is not knowledgeable enough to make an informed decision about who the President should be (although this concern may have prompted the Founders to form the Electoral College, but there are still primaries to consider). In other words, there is the public’s right to know to consider also.

Although First Amendment considerations incline me towards the libertarians, I can’t help sympathizing with the neoliberals on an issue that is crucial to the preservation of our democracy. Citizens need to be informed before voting in order to make the best decision. Although governmental intervention infringes upon the media’s First Amendment rights, there are other methods the public can pursue to ensure more balanced coverage of issues important to them. These include lobbying the media itself or even starting citizen journalist blogs covering the campaign.

Addendum: I have already addressed this in a previous blog, so I didn’t bring up the biases inherent in political media coverage that the study also revealed, such as favoritism towards Barack Obama and dislike towards Senator John McCain. The issues surrounding the McCain-Feingold Act of 2002 apply to campaign coverage as well, but those are also discussed here.









Thursday, October 25, 2007

Freedom of the Press Trumps Right to Privacy (and Secrecy)…

…as it should. Although there are legitimate reasons for claiming a right to privacy and its related torts in a case, in some instances the right to privacy is abused for political ends, as demonstrated by the controversy surrounding the Phoenix New Times.

This is a complicated case that actually builds on another one. The first case never actually went to trial—a special prosecutor, Wilenchik, was appointed to investigate the Phoenix New Times about the publication of a local sheriff’s home address (1). The Phoenix New Times had started investigating Sheriff Arpaio’s real-estate assets in 2004 and accused him of abusing a privacy law that allowed police officers to keep their addresses private (1). Sheriff Arpaio allegedly used the law to hide the true nature and value of his real-estate asset transactions. Offended at the Phoenix New Times’ publication of the sheriff’s home address, Wilenchik sought a subpoena from a grand jury demanding the Internet records of anyone who had visited the newspaper’s website (1).

Although this case never went to court because the County Attorney’s office eventually dropped all charges in relation to it, it nonetheless demonstrates the role of the First Amendment in preserving the media’s function as a watchdog. Freedom of the press protects the media from governmental censorship in the form of subsequent punishment. The media was serving as a watchdog in this case because it was exposing the morally questionable actions of a government official, the sheriff. The subsequent punishment the government, acting through the prosecutor, sought to impose was a subpoena of the newspaper’s records. The motivation to obtain this subpoena stems directly from the content of its publication, namely the home address of the sheriff. The subpoena itself constitutes subsequent punishment because it forces the newspaper to disclose the its private records, an action that would potentially damage the newspaper by implicating its readership through the guilty-by-association mentality. In other words, the special prosecutor’s motivation in obtaining the subpoena was to hinder the newspaper’s investigation of Sheriff Arpaio. “…the subpoena was part of an investigation orchestrated to get back at reporters and the critical stories they wrote about Arpaio, Thomas' political ally” (1). Thomas is the County Attorney, and his office oversees the special prosecutor.

This is a case in which freedom of the press would be considered more important than Arpaio’s right to privacy. Although Arpaio could have brought up the privacy tort of the public disclosure of private facts, his interest would have been overshadowed by the newsworthiness of the published information—that Arpaio, a trusted public official, was abusing the law. This parallels the court’s decision in Showler v. Harper’s Magazine Foundation, which disregarded Showler’s claim to the public disclosure of private facts in part due to the newsworthiness of the event—the funeral of the first Oklahoma National Guard member to be killed in Iraq, which even the governor of Ohio attended (2). As a reminder, this rationale is completely hypothetical because the case never got to court.

The most recent controversy surrounding the Arizona New Times, however, arises from the arrest of two of the newspaper’s executives, Larkin and Lacey, for the alleged disclosure of grand jury secrets (3). Larkin and Lacey had published the details of the subpoena, which included “information not only about the newspaper’s reporting, but also the information on readers who may have seen material deemed confidential published on the newspaper’s website, including the internet domain names and browsers used, and any other information about online readers of the publication since Jan. 1, 2004” (3). The irony here is that the newspaper is subpoenaed for the disclosure of private information because the newspaper itself disclosed private information about Sheriff Arpaio. Although Lacey and Larkin even acknowledged that disclosing grand jury secrets may have led to prosecution, they judged that the risk was worth it to keep the public informed about the details of the County Attorney office’s actions. Subsequently, public opinion and the State Bar Association sided with them that citizens have “the right to read whatever they want without government interference,” (1) thus pressuring the County Attorney to drop his charges. This case demonstrates the heightened importance of freedom of the press in acting as a checking function on government even though there may be security risks involved in leaking secret information. However, the paradoxical truth about the First Amendment is that it guarantees more safety and the triumph of Truth through the assumption of risk in letting all ideas be heard rather than suppressing information for temporary stability’s sake.

(2) (1)

(2) (2) Helle, Steven. Journalism 199 Readings.


Thursday, October 18, 2007

Can Blogs Be Trusted?

How many people trust in the media as a reliable source of information? According to a poll by BBC, the majority of Americans still do: 59% (1). However, the amount of trust varies among different types of media. Americans had the least faith in blogs, which were trusted by only a fourth of those polled (1). This raises the obvious question of why there is so little trust in blogging and what remedies are present to make blogs more credible.

The nature of blogging itself may be conducive to reducing the credibility of blogs. For instance, Segan argues in his column (2) that the anonymity of the Internet results in less accountability, and therefore less incentive to be accurate. “It [Anonymity] dramatically lowers the reliability of Internet communication, as people can lie without real consequence” (2). Anonymous authors are free to post as much drivel as they want or even to post falsehoods, so there is no guarantee that any blog is reliable. This in turn reduces the public’s trust in blogs as a source of information.

As for the reliability of their sources, a case study demonstrates how easy it is to find questionable information on the Internet and present it as possible fact: Mickey Kaus repeats an allegation of infidelity on John Edwards’ part obtained from the tabloid The National Inquirer in his own Slate article (3). He is criticized by Megan Garber of the Columbia Journalism Review for passing on rumors that are unsubstantiated by fact and for sensationalistic blogging: “…for someone in Kaus’s position to pass along basically unsubstantiated rumors is, at best, annoying: it promotes the precise brand of character-driven political coverage most of us are sick of at this point” (4). If Kaus had stuck to reliable sources and presented an accurate portrayal of John Edwards, then political debate concerning presidential candidates would have been furthered more substantially.

So far there is no state involvement in blogging at all and the Internet is a free domain. But in order to increase the credibility of blogs, there would have to be governmental involvement to regulate blogging by creating standards for reliability, such as mandating that every blog must cite its sources. This would constitute an overextension of governmental power and even prior restraint, since there would have to be some method of punishing blogs that did not cite their sources. Practically, this would pose an enormous logistical problem as the government would have to monitor the vast domain of the Internet. And who wants the government to be the one setting the benchmarks for determining how reliable a blog is? This power could certainly be misused and infringe upon the checking function of the media, which includes citizen journalists who blog. Thus the blogger’s right to freedom of speech trumps any public right to know the blogger’s sources.

Furthermore, there is the precedent of Reno v. ACLU, which demonstrates that the Supreme Court is hesitant to regulate a forum in which there is no captive audience or scarce spectrum (5). The Court was not willing to cede the interests of the speakers to the interests of children, so it is doubtful that the Court will consider the public’s interest over the speaker’s interest in this case either. Furthermore, there is even less cause to uphold the public’s right to know because any regulation of blogs would cover all content, not just obscenity as in Reno v. ACLU.

Paramount, however, is that the theory of the marketplace of ideas triumphs in the end. Even if there are more spurious blogs than serious ones, the Internet is such a vast forum that the truth will eventually win out over all of the falsehoods present. The burden is not upon the speaker, the blogger, to provide the public with the truth. Speech does not have to be true to be protected, for truth is difficult to prove and it is human to err, knowingly or unknowingly. The burden is upon the public to sift through the available material and pinpoint ideas with the most credibility, a task that sounds daunting if it weren’t for the proliferation of search engines such as Google.

There are credible blogs out there, too, and one does not have to search far to find them (6).


(1) (1) “BBC/Reuters/Media Center Poll: Trust in Media.” 3 May 2006. 18 Oct 2007. <>.

(2) (2) Segan, Sascha. “On the Web: Less Anonymity, More Privacy.” PC Magazine. 10 Oct 2007. 18 Oct 2007. <,1759,2193392,00.asp>.

(3) (3) Kaus, Mickey. “Edwards Walks the Line.” Slate. 15 Oct 2007. 18 Oct 2007. <> .

(4) (4) Garber, Megan. “This is Huge!” Columbia Journalism Review. 11 Oct 2007. 18 Oct 2007. <>.

(5) (5) Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). <>.

(6) (6) Gimein, Mark. “Crack for Journalists: The Economics of Blogging.” Time. 13 Oct 2007. 18 Oct 2007. <>.

Thursday, October 11, 2007

Tolerance Versus National Security Concerns in Relation to Freedom of Speech

Tolerance is one of the values taught by the First Amendment due to its counterintuitive nature. The First Amendment is paradoxical because it encompasses “a freedom to espouse no freedom, freedom for the speech we hate, a right to be wrong” (1). Yet it is the protection of speech that is hated by the majority of the people that is crucial to preserving democracy and a marketplace of ideas, while at the same time promoting tolerance for such extreme views. Tolerance in turn enables a diversity of views to be expressed. However, there may be a need to impose a limit on such tolerance if national security concerns are at issue, as is the case in allowing speakers like Ahmadinejad to express themselves. Is tolerance a sufficient justification for the overextension of freedom of speech protections to those who might pose a serious threat to America?

Mahmoud Ahmadinejad is the current President of Iran. Iran itself has been named as part of the “axis of evil” by President Bush due to its alleged desire to obtain nuclear weapons and its sponsoring of terrorist and insurgency groups (2). Ahmadinejad has been an extremely controversial leader and has supposedly made statements denying the Holocaust (3), but the most recent controversy surrounds his proclamation that Iran has no gay people (4). Yet it is not the content of his speech that is at issue. The question is whether those who provide a forum for his speech should be condemned as enablers of terrorism or defended as promoters of tolerance.

One of the major outlets for speech that is being denounced for tacitly supporting Ahmadinejad’s views by letting him express them is the media. Jonathon Feit criticizes the press for giving Ahmadinejad publicity but not examining his views critically. He scathingly condemns their silence: “Our country's greatest newswriters simultaneously put down their pens and said, ‘Well...can't seem to think of anything to counter that statement.’ No statistics, no cross-examination, nothing” (4). Journalists are supposed to investigate matters to ascertain the extent of their truthfulness, and in Feit’s view they have failed in this regard. Furthermore, he insinuates that the lack of denunciation by the media indicates their acceptance of his prejudice: “To be objective now, in the face of prejudice and hate, looks stupid. What's more, it smacks of complicity” (4). Although objective reporting is viewed as a positive trait that promotes a fair portrayal of all sides of controversial issues, at times subjectivity is necessary to avoid condoning heinous views. Passive observers who merely pass on the words of a leader hostile to the United States are worse than those who take no action because they are presenting his views uncritically to a wider audience.

Does all of this really matter, however? Ahmadinejad is not a United States citizen or even a resident alien, and technically cannot claim the First Amendment protections of the Constitution which are applied to citizens through the Fourteenth Amendment. There seemingly is no government involvement. Thus it should be easy to force the media to censor his speech, or at least to provide equal time for counterarguments to it.

But there are citizens and aliens who espouse views as inflammatory as his, and his case can therefore be considered as representative of letting speakers like him express themselves in public forums. Regardless of whether or not speakers are protected by the First Amendment, though, there would still be government involvement in dictating to the media whose speech should be allowed or banned. Banning the publishing of Ahmadinejad’s views in the press would constitute prior restraint and even mandating that equal time be given to opposing views would infringe on their right to editorial discretion.

The paramount issue, however, is whether national security concerns trump freedom of speech and tolerance. Security is an exception to the First Amendment protections on speech, after all. But consider the context in which Ahmadinejad’s speech is considered dangerous. He is a threat because of his anti-American views and support of terrorism. However, the war on terrorism can be construed as a perpetual war and in the light of that interpretation, the government can have an unlimited license to censor the publication of the views of any supposedly pro-terrorism speaker (2). This situation grants the government frighteningly unrestrained power to quash any sentiments it defines as “pro-terrorist.” No national security concern is great enough to endanger freedom of speech in this way.

While tolerating Ahmadinejad’s beliefs or the views of those like him can ironically be seen as a promotion of hate, upholding the values of the First Amendment has more than a civil libertarian value in these instances. The irony that America will allow him its freedom of speech while he denies that same right to his own people gives America the higher moral ground in world opinion. Iran’s people may tire of his oppressive fundamentalist regime and look to America for guidance instead, voiding any national security concerns in the first place.


(1) (1) Helle, Steven. “Prior Restraint in the Supreme Court.” Journalism 199 text, pg.49.

(2) (2)“Axis of Evil.” Wikipedia: The Free Encyclopedia. 11 Oct 2007. <>.

(3) (3)“Mahmoud Ahmadinejad.” Wikipedia: The Free Encyclopedia. 11 Oct 2007. < >.

(4) (4)Feit, Jonathon. “Should There be Limits to ‘Diversity’ of Speech?” Advertising Age. 11 Oct 2007. .

Tuesday, October 2, 2007

Media Objectivity and First Amendment Rights

Media Objectivity and First Amendment Rights

The ideal that objectivity is a standard that media should be held up to has been embraced by an American society suspect of sensationalism and other media excesses. However, too much emphasis on maintaining objectivity stifles free speech if all content must meet some arbitrary standard of fairness. This is especially true in the political arena, where free speech fosters the necessary debate to inform citizens of all sides of the salient issues before elections. The media is endangered by business and governmental elite who would prefer that it have no say at all than to have it express any partisan views freely.

Communications businesses such as Verizon Wireless demonstrated on Friday September 28th that they have an inordinate amount of control over free speech in the services that they provide to consumers. Verizon Wireless controversially turned down the request of NARAL Pro-Choice America, an abortion rights group, for a text-messaging privilege that would give voluntary users a short cut to get updates (“NARAL’s case…”). Verizon’s reasoning was that it did not wish to offend anyone by seeming to support partisan views: “its messaging system was closed to groups with content or an agenda that ‘may be seen as controversial or unsavory to any of our users’ “(“NARAL’s case…”) Even though it eventually reversed its decision on NARAL (Liptak), the fact remains that Verizon had attempted to stifle free speech on an inconveniently controversial topic in order to keep the content of the communications it provides objective.

Although Verizon Wireless is a private company and First Amendment cases must involve government in order to be valid, the actions of Verizon Wireless would constitute content regulation and a violation of the First Amendment if it were a governmental entity. Text messaging is not traditional media, but it provides a form of new media in which individuals and partisan groups can express their perspectives and foster political debate. The dangerous precedent Verizon set by attempting to suppress it could open the door to possible government involvement and limitation of biased, partisan speech for the sake of impartiality. Such possibilities include “Net neutrality” rules, which “would bar Internet access providers [like Verizon] from favoring or blocking any legal content, application or service” (“NARAL’s case…”) It is just to have rules against overregulation of content, but why should partiality be condemned? Verizon opposes “Net neutrality” rules ostensibly because it wants to be able to favor content that it supports; its actions in the NARAL case ironically imply more sinister motives.

In dealing with traditional media, the government has sought to impose “fair” rules in order that both political parties may have equal representation in the media. The most recent law that applies to the media is the McCain-Feingold Act of 2002, which regulates the financing of political campaigns (“Bipartisan Campaign Reform Act”). The relevant clause deals with partisan issue ads, and states that corporations are prohibited from paying for an ad that mentions a candidate’s name (“Bipartisan Campaign Reform Act”). Corporations include the media, which are technically not allowed to sponsor any ad that takes a biased stance on a controversial issue, but are allowed to express their opinions on issues and even endorse candidates, ironically enough. Although the New York Times has supported the expansion of campaign finance laws in the past out of concern for possible corruption in the campaigning process, it has found itself targeted by the Federal Election Commission under the McCain-Feingold Act. The New York Times has been accused of a violation for giving the radical leftist group a special discount for an ad it displayed “accusing General David Petraeus of betrayal in advance of his Congressional testimony” (“In defense…”) Whether or not the FEC will prosecute the New York Times for a violation is under investigation still since no political candidate has been expressly named. Nevertheless, the New York Times has come under great scrutiny for supporting a partisan group and this case highlights the dangers of overbroad campaign finance laws that can lead to regulation of free speech. Although the speech under question is an advertisement, the Supreme Court has ruled before in cases where the content of advertisements was regulated that political speech in commercial form is protected (See New York Times Co. v. Sullivan). The New York Times should not be prohibited from supporting a viewpoint that it endorses, since it is already free to have a liberal bias in its content under First Amendment protection.

The First Amendment does not protect only inoffensive, unbiased speech; otherwise there would be no need for a First Amendment. Thus the right of the media to be as partisan as it wants must be protected from interests that would rather have no debate than a free exchange of ideas.