Foundations and Empire

 Posted on November 03, 2016 in Uncategorized

Atlanta public radio had a story on Jason Clark's and my triumph in the Georgia Supreme Court on Monday. They reached out to neither Jason nor me, but to a "Hollie Manheimer, executive director of the Georgia First Amendment Foundation.

This "Georgia First Amendment Foundation" was nowhere to be seen when Jason and the Client and I were actually litigating the unconstitutionality of Georgia's insulting-a-bus-driver statute. They didn't write the brief, they didn't argue it, and they don't know squat about it. I think it's fair to say that Ms. Mannheimer didn't even read the opinion before commenting:

The problem is that it's so over broad. Who decides who's offended? Who decides who's disruptive?

Yes and no. It is overbroad, but the problem is not who decides who is offended or disruptive. The problem is that the statute forbade critical speech even if it was not disruptive (another statute forbids disrupting school; that statute is content neutral). The problem is that we are allowed to offend each ther, and this right extends to upbraiding agents of the crown.

The Guys to See

Jason Clark is not hard for the media to find. I'm in trial, but Zulema and Maria are still answering the phones, so I'm not hard to find either. Of course, we don't call ourselves a "First Amendment Foundation" (hmm... yet) so our First Amendment credentials are suspect?

Aw c'mon now, media: Nobody knows and can talk about the case like the lawyers who won the case can. Not the lawyers who lost, not other experts, and damn sure not ignorant hacks who can't be arsed to read the opinion before commenting.

And lawyers: Have some damn self-respect. You don't have to answer questions that you don't know the answers to. If they ask you about a case you're not familiar with, "I'm not at all familiar with the case. Let me read the opinion and get back to you" is an acceptable answer.

Fundamental Ignorance

There's a deeper problem, though, than Manheimer's failure to read the opinion before commenting: Her question "who decides who's offended?" betrays a fundamental ignorance of the way free speech works. Who decides who's offended? Who cares? Even if there were some universally objective way to determine whether someone is offended, we are permitted to offend each other without government sanction.

This is not the first time a putative defender of the First Amendment has shown dangerous ignorance of the topic, and I'm sure it won't be the last time. Look at the ACLU, which for a time defended civil liberties, but now is willing to sacrifice the civil liberty of free expression on the altar of privacy.

"Violations of privacy" are not a category of unprotected speech, and never should be - everything we say about someone that they don't want us to say is either defamation or a violation of privacy. In the ACLU's Orwellian hellscape in which we can be punished for violating others's privacy, nobody can speak of anyone else without their consent; the newspaper is limited t0 printing press releases.

Cohen v. California

What about Cohen v. California, where the United States Supreme Court suggested that speech that invades "substantial privacy interests... in an essentially intolerable manner" is unprotected?

The "substantial privacy interests" of Cohen are not the right of the subject not to be the subject, but rather the right of the recipient not to receive the communication. As the Supreme Court noted in Organization for a Better Austin v. Keefe - while upholding people's rights to publicly criticize a small businessman less than three weeks before Cohen v. California - there is an "important distinction" between "attempting to stop the flow of information into [one's] own household" and trying to block the flow of information about oneself "to the public."

So watch for that "substantial privacy interests," from those who should know better. From prosecutors and "experts," of course, but also from :courts

We agree with the State that substantial privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt.

(That's from the Texas Court of Criminal Appeals' dicta in Thompson, in which it held a portion of Texas's Improper Photography statute unconstitutional. Fortunately the constitutionality of the other portion of the statute was not at issue in Thompson, so that statement, citing Cohen, is not binding on other courts nor, indeed, on the CCA itself.)

Question Everything

"Offensive" and "privacy" are two catchwords that tend to wire around the First Amendment in the minds even of people who are supposed to be protecting our free speech. There are probably others. If you wonder whether a statute forbids speech that is protected, bear this in mind: Everything that does not fall into a category of historically unprotected speech is protected. After more than 200 years the Supreme Court is very reluctant to recognize more such categories. So far they have recognized:

  1. Advocacy intended, and likely, to incite imminent lawless action;

  2. Obscenity;

  3. Defamation;

  4. Speech integral to criminal conduct;

  5. So-called "fighting words";

  6. Child pornography;

  7. Fraud;

  8. True threats; and

  9. Speech presenting some grave and imminent threat the government has the power to prevent - but this is not a catchall: "a restriction under the last category is most difficult to sustain."

If it's not on that list, you can bet that it's protected.

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