SMART v. American Freedom Defense Initiative: False advertising?

Free speech is often positively associated with anti-censorship rulings, the right to seek and receive information, and national pride. But what happens when that same right is granted to those directly related to a hate group? A recent district court ruling in Detroit brings up this very discussion. Earlier this month, District Judge Denise Hood granted a preliminary injunction against SMART, or the Suburban Mobility Authority for Regional Transportation in Detroit, Michigan. SMART refused to run an advertisement on one of ts buses for the American Freedom Defense Initiative that encouraged Islamic people who are questioning their faith to turn to the nonprofit organization for help. The text read: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get answers! RefugefromIslam.com.” The nonprofit claimed a violation of both its First and 14^th Amendments. Although SMART cited that its policies were not to run religious or politically fueled advertisements, the group had previously run a pro-atheist ad and had few substantial guidelines for determining what could and could not run. This brings up quite a few interesting topics in terms of freedom of speech protection.

Unlike the recent Supreme Court case regarding the Westboro Baptist Church (which ruled to uphold the congregation’s freedom of speech while protesting at soldiers’ funerals), the advertisement is not explicitly and outwardly offensive. Superficially, it is no worse than your average advertisement for help hotlines regarding suicidal teens or those who have experienced physical abuse in their relationships. And it certainly does not graphically offend members of the community, such as the Westboro Baptist protests.

Although it would be easy to say that since the Supreme Court recently upheld a worse offense in the Westboro Baptist example, and therefore this case must certainly be legal, I think there was much more to Judge Hood’s decision than mere politics. One of the considerations cited in her ruling was the lack of a captive audience. As we learned in Law and Communications, a captive audience refers to a situation in which people have gathered in a place and are subject to provided information that they cannot necessarily escape from. The captive audience theory has long been an aspect of media law, especially in terms of broadcast media.  However, since the advertisement would be running on the external sides of the bus, this theory is not applicable in the SMART case. In addition, SMART had few guidelines that described when and how ads could be rejected, leaving its decision-making process to seem arbitrary to a court. Also, despite the defense’s argument of increased racial tension and fear in an emotionally charged time, the judge ruled that the censorship of the ad could result in a biased marketplace of ideas, resulting in a public that was not properly informed about the entirety of the issue. This again favors the running of the advertisement in hopes of providing full and exhaustive outlets of information and the hopes of sparking robust societal debate, and ultimately, a more enlightened citizenry.

What I think is most interesting about the case however is the background behind the organization. Although the advertisement itself is not an example of “hate speech,” the executive director of the American Freedom Defense Initiative, Pamela Geller, is also the executive director of a group known as Stop the Islamization of America (it’s unclear from my research exactly how closely these two groups are linked, but on Pamela Geller’s blog-news site, AtlasShrugs2000.typepad.com, the two organizations seem to be grouped as one).  Stop the Islamization of America (SIOA) was recently noted as an active anti-Muslim hate group by the Southern Poverty Law Center, which manages files and records on hate groups throughout America. In an article published in the Wall Street Journal, the SIOA is likened to the Ku Klux Klan.

With this advertisement, those who are experiencing issues in their own religious faith may turn to a group that is not only biased, but also actively pursuing a hate-fueled agenda. Muslim people who are looking for help may only be met with a thinly veiled tirade against their religion. In cases like Westboro Baptist, the explicit nature of the church’s protests ensures that potential members know what they’re getting. In this case, though, innocent and discouraged individuals may find themselves in the hands of those who are only there to pursue their own beliefs. This is a dangerous line to tread; however, the court system (in its ruling) apparently believes that citizens must be able to recognize and pursue the truths and falsehoods that present themselves in such a Mill-based society as ours. It is in this marketplace of ideas that citizens can decide for themselves the path they choose to follow, whether it is toward tolerance and acceptance or hatred and bigotry. Although we may not fully know the complete outcome of such rulings for years, I personally believe that, in the end, the majority of an enlightened society will choose what it believes to be the best representation of democratic, ethical and just ideals, helping to further both free speech rights and our nation as a whole.

Sources: 

US judge rules for Muslim defector bus ads 

Pamela Geller- AtlasShrugs2000 

American Freedom Defense Initiative

Southern Poverty Law Center- Active Anti-Muslim Groups

Stop the Islamization of America

Judge rules for group touting anti-Islam ad

Information v. National Security

As a journalism student, I have always been very supportive of open information. Transparency and accountability for private companies, government agencies and even journalists themselves are vital to the well-being of citizens by aiding them to make important, enlightened decisions that affect their everyday lives. As someone from a military family, however, I have also had one specific reservation regarding this open flow of information: national security. Personally, if the issue were between knowing information first and saving lives, I would absolutely choose saving lives every time. However, this type of approved secrecy is a delicate issue and can easily go too far, sparking its controversial nature among journalists and the general US population. Frankly, it opens up a horde of difficult First Amendment-related questions. Who can be barred from speech in this instances? What constitutes a matter of national security? How many people have to be at risk before it becomes a national issue? Questions like this help to fuel the debate over which would win the ultimate case where information goes up against national security.

On October 12, 2001, Attorney General John Ashcroft sent out a memo to heads of all federal departments and agencies. The note discussed the federal Freedom of Information Act and stated that while the government is dedicated to providing essential information to citizenry, it is “equally as committed to protecting other fundamental values that are held by our society. Among them are safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information, and, not least, protecting personal privacy.”  Up until this point, I completely agreed with Ashcroft’s statement. While information, clarity and government accountability is essential, so is the imminent protection of US citizens, especially as this note was sent just weeks after 9/11.

As the memo continues though, Ashcroft seemed to almost undermine the federal FOIA, stating “Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.”  The journalist in me had a difficult time with this. Sure, as consenting employees of the government, federal department heads are not necessarily being deprived of their First Amendment right by being barred from specific speech in specific situations. But while institutional issues may be valid, allowing commercial and personal privacy interests to become a strong part of the decision may very well open up numerous opportunities for unnecessary government secrecy. For example, while trade secrets are obviously a commercial exemption, could a contract between a government agency and a corrupt weapons dealer overseas also be considered a commercial interest? What about the personal privacy of a government employee who is caught in an act of fraud?  While these examples may be extreme, they are still incredibly viable.

Another significant issue I had with this memorandum had to do with the presumption of nondisclosure. Ashcroft’s memo switched the entire thought process of federal department leaders to assume that under the majority of circumstances that arise, their departments should be able to find a reasonable cause to decline FOIA requests.  This is nearly exactly opposite of a memo released in 1993 by Ashcroft’s predecessor, Janet Reno, who strongly supported FOIA and believed requests should only be denied under threat of legitimate and immediate harm. The mindset seemed to switch from Reno's pro-free speech, pro-open information policy to anti-transparency all with a simple, basic memo.

Also, Ashcroft’s memo stated that as long as the request’s decline has some sort of legal basis, the Department of Justice would defend it. This was again a switch from Reno’s 1993 note which it stated: “The Department will no longer defend an agency's withholding of information merely because there is a "substantial legal basis" for doing so. Rather, in determining whether or not to defend a nondisclosure decision, we will apply a presumption of disclosure…In short, it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption. Where an item of information might technically or arguably fall within an exemption, it ought not to be withheld from a FOIA requester unless it need be.”

While I believe national security should take priority over information in incredibly extreme times (such as after 9/11), Ashcroft’s memo took government secrecy too far. The government and its leaders should not be under the constant impression that the American public does not have credible reasons to request government information or that any released information will result in harm. Rather, the government should presume that the release of information could only further the marketplace of ideas, rather than cripple the safety of the public. Only under extreme and deliberately researched circumstances that would result in inevitable harm should requests be denied, with exemption given only to the provisions stated in the federal FOIA act itself.

On March 19, 2009, current Attorney General Eric Holder effectively reversed Ashcroft's memo with a statement that was sent out to all federal department heads. The memo basically reinstated Reno's former policy, one of "a presumption of openness." The statement even went further to encourage partial disclosures in cases where full disclosures may not be permissible. However, I can only hope that the FOIA policy  that is in place today will continue to remain open, such as it has under Reno and Holden, and not continually stagger with the incoming of each new president or political majority's term.

Sources:

Freedom of Information Act

Reno's Memo

Holden's Memo

Coalition of Journalists for Open Government Summary and Ashcroft Memo Text 

The Day Ashcroft Censored Freedom of Information 

Citizens United v. FEC: How big business affects journalism

On January 21, Keith Olbermann resigned from MSNBC, following a tumultuous scandal regarding political donations the news commentator made. Some cheered as though objective journalism was winning a battle and others said MSNBC was killing its “golden goose.” While the issue of individual journalists’ contributions to political campaigns gained national attention, imagine if MSNBC (or rather General Electric, which owns MSNBC) had contributed to such a campaign. According to Citizens United v. FCC (decided almost exactly a year before Olbermann resigned), General Electric, under the First Amendment, would have every legal right to do so.

 In January of 2010, the Supreme Court made a landmark ruling in deciding that corporations (as viewed by the court as individuals) have a First Amendment right to make unlimited campaign contributions. According to an article in Miller-McCune, speculation of campaign spending for the most recent midterm election was nearly $300 million, with nearly half of that money coming from groups that did not wish to disclose any information about their financial sources to the FEC. Although it’s impossible to say what it would have been otherwise, many believe that the Citizens United ruling had a strong influence in increasing midterm spending to be more on par with that of the 2008 presidential election.

 Although much of the news media focused on the effects of Citizens United with regard to corporations such as Google or Microsoft, the law applies across the board and includes news and media corporations as well. So far, many individual news corporations, including MSNBC, have in place private ethics policies and contracts with their employees regarding what can and cannot be done in terms of political contributions. The law, however, does view these conglomerates as individuals with a right to reverse these policies and start spending immediately, if they so choose.  To go back to the General Electric example, this conglomerate owns numerous local television stations, Bravo, NBC, MSNBC, Oxygen, USA Network, Universal Pictures, Universal Studios, iVillage, Focus Features, GE Appliances and GE Energy—just to name a few. Despite the financial state of journalism, General Electric owns more than just newspapers and has incredible spending power. And this isn’t a rare case. Other media conglomerates such as Comcast, The New York Times Company, The Walt Disney Company and Gannett own dozens of media and news outlets nationwide.

While these companies are undoubtedly enormous, it isn’t hard to imagine a world where ridiculous amounts of political spending are being done on behalf of these corporations and thus influencing both the major and minor subsidiary companies and their daily actions.

But what does this mean for journalism? MSNBC and FOX News obviously have a certain political slant, and some argue that this is just a hearkening back to Mill’s principle of the free marketplace of ideas. This type of commentary-fueled journalism, however, is a slippery slope. Although I completely support a market place of ideas where truth will ultimately prevail, the secrecy of this truth in journalism is often the issue. To reach back to the Olbermann example, one of the many issues that presented itself was that Olbermann had financially supported many people he interviewed on his show without disclosing that information to his audience. I think a similar issue presents itself with the larger media conglomerates. To be honest, I don’t doubt that these companies have made substantial political contributions to someone somewhere at some point. What does bother me though, is that I most likely have absolutely no idea who it was to and how that contribution will affect the information I get from these companies.

Some corporations have made an effort to retain their journalistic integrity though. For example, whenever a local ABC news network (which is owned by The Walt Disney Company) runs a story discussing Disney World, there is a disclaimer before the story airs mentioning that ABC and Disney World do have an affiliation. If this kind of process could be expanded to politics and, essentially all other affiliations, I think the system could clearly succeed. Putting that much trust in big business is difficult for me though.

But, with full and honest disclosure, however, I do think that the system Citizens United put in place can provide the best of both worlds- corporate political freedom and honest reporting in the media.

Sources
Citizens United v. FEC
Following the Money a Year After Citizens United
Who Owns What- Columbia Journalism Review
Supreme Court Rips Up Campaign Finance Laws
The press after Citizens United

Hazelwood v. Kuhlmeier- Student publications deserve rights too

            While researching the topic of freedom of the press, I came across an interesting case involving the press rights of high school newspapers- specifically, Hazelwood v. Kuhlmeier. The case, which was decided in 1988, involved a public high school newspaper (produced as part of a journalism class) in St. Louis. Prior review was granted to the principal to look over articles before they were published by the school district. In this case, however, the principal denied approval of two articles: one, a look at divorce and its effects on high school children, and another, an article written to discuss teenage pregnancy as a growing trend, specifically within the school district itself. Both articles were cut. The principal decided the divorce article did not show all sides of the issue, and the pregnancy article was apparently too mature for a young audience. The Supreme Court upheld the principal’s decision in a 5-3 vote, reversing the ruling of a lower court. The Supreme Court stated: “A school need not tolerate student speech that is inconsistent with its basic educational mission.”

            Firstly, it’s arguable whether the pregnancy article was actually against the school district’s educational mission. The principal’s main issue with it was that it was too mature for freshman students. Sexual education classes, however, are currently held in high schools today often in either 9^th or 10^th grade. If class material is suitable for these students, it seems contradictory to state that a well-written piece with interviews from students (some of whom were even already married) would be outside the realm of maturity for a 15-year-old. Because the school district took it upon itself to recognize a need for sexual education and family living courses, it obviously considers the information valuable and necessary among young audiences. The newspaper article clearly furthered this mission by providing more information and anecdotal evidence for teenage pregnancy cases that were occurring within the very halls of these schools, making the issue more relevant to students than a standard textbook.

            Also, the principal’s concern about the divorce article could have been solved if the principal had allowed the student to go back and fill in missing sources in the article. If the principal is to be granted power of prior restraint for the newspaper, the lack of time to fix any necessary changes for publication seems contrary to the cause of accurate journalism. If the publication does not have time to consider and fix any mistakes or issues the principal finds, it seems as though the prior restraint is clearly and only a form of censorship by the school district on the writings of students.

            Although some may argue that because the school district was paying for the newspaper’s publication and therefore has any and all rights to alter the information within, the Supreme Court should have recognized the necessity of free speech among students. During the case, Kuhlmeier’s legal team cited the previous ruling in Tinker v. Des Moines School District. The Tinker case established that school officials should not censor student speech “unless they could reasonably forecast that the student speech in question would cause a substantial disruption of school activities or invade the rights of others.” (Hudson). I fail to see how a substantial disruption would occur from these articles, especially the pregnancy article, of which students most likely already knew was an issue. Unfortuntately, the Tinker standard was not applied, and the Court ruled that candid discussion about teenage pregnancy was too much for young students to handle.

            In conclusion, I would like to cite Justice William Brennan’s dissenting opinion on the case (that was joined by Justices Marshall and Blackmun):  

“Tinker teaches us that the state educator's undeniable, and undeniably vital, mandate to inculcate moral and political values is not a general warrant to act as ‘thought police’ stifling discussion of all but state-approved topics and advocacy of the official position...The mere fact of school sponsorship does not, as the Court suggests, license such thought control in the high school, whether through school suppression of disfavored viewpoints or through official assessment of topic sensitivity.” 

            Clearly, high school students are often discredited as being too immature to take on issues that directly impact them. As Justice Brennan states, it is imperative for schools to work against this disturbing trend and recognize the need for open discussion and a free marketplace of ideas, even in a high school setting.

Sources:

Freedom Forum Case Summary on Hazelwood

Hazelwood School District v. Kuhlmeier Case (1988)

Tinker v. Des Moines School District (1969)

Wikipedia Entry on Tinker v. Des Moines Independent School District

Wikipedia Entry on Hazelwood v. Kuhlmeier

Hazelwood Still Extends Far Beyond Student Press by David L. Hudson Jr.

           

Let me explain....

As part of an independent study course at the University of Illinois, I'll be using this blog to post some random musings on freedom of the press issues that I come across- whether it be case decisions, issues in society or just problems that come up and need to be addressed. If you're interested in law or journalism at all, please enjoy.