It will probably be one of more controversial and provocative blog posts at this website. It also happens to be my first one. Long story short, it is about how inaccurancies in one of last week’s lectures about freedom of speech made me think about… yes, freedom of speech.
On Wednesday, August 16, our WPI fellows bunch met Mark Anfinson, an attorney and adjunct professor of media law at University of St. Thomas. Anfinson made a historical lecture about the First Amendment and its exceptions. The problem with us, cheeky journalists, is we always want to double-check information. So, after coming back home, I began reading the Supreme Court’s decisions Anfinson referred to.
And boom! I discovered that our distinguished lecturer cited some inaccurate dates and descriptions.
Example? Anfinson described a famous case from World War I. According to him, a guy called Schenck was prosecuted for criticizing U.S. plans to enter the war, even though he defended himself citing the First Amendment, and in 1917 the Supreme Court upheld a criminal conviction.
In reality, Schenck was prosecuted for distributing fliers to draft-age men, urging resistance to induction and the Supreme Court upheld the conviction in 1919.
Another example is the Glenn Theatre case. Glenn Theatre, contrary to what you might think, was not a theater. It was a bar with dancing girls. According to Anfinson, the authorities shut it down because, well, the girls were not wearing any clothes. Anfinson claimed the owner and the dancers appealed, arguing that nude dance is a form of expression protected by the First Amendment, and in 1999 the Supreme Court ruled the case in “favor of the dancers”.
But in fact, the case was decided in 1991. It started not because authorities closed the bar, but because the owner of the bar, where the dancers had to wear pasties and g-strings, filed suit in the court, arguing that the law's prohibition against total nudity in public places violates the First Amendment.
The court indeed admitted that nude dancing might be regarded as expressive conduct under the First Amendment, albeit "only marginally so". And the core of the opinion was the state had the constitutional authority to ban public nudity. I understand the decision was mentioned in the context of an interpretation of free speech, but I would not call it „in favour of the dancers”, especially without mentioning what it meant for the bar.
Anfinson’s lack of accuracy worried me . After all, he could have been quoted by any of us in our coverage (in fact I did quote him, but only in relation to facts I was sure of).
So I thought to myself: “why not write a blog post about it?”
Let it be a small test of freedom of speech – and freedom of the press – on this website. Could the WPI, interested in getting positive coverage like all organizations, theoretically stop publication? Of course, it has all rights to do that, because, as Anfinson pointed out, the First Amendment applies to government action. Corporations and organizations have the same rights to free speech as individuals, which encompass also editorial judgments – this was the main conclusion of Baidu vs. U.S. case, also mentioned by the lawyer.
That makes you think about how much our right to free speech currently depends on private actors. The First Amendment was created back in the days in which the best way to be heard was to go out to the market square and shout your arguments. Today, it makes more sense to post them on Twitter. White supremacists were still able to gather in Charlottesville, but Facebook removed the event from its website. The American Civil Liberties Union defended in court their right to protest, when the authorities wanted to move demonstration to another place, but was helpless against the corporation.
Of course, I am almost certain that the post will be published, because WPI champions free discussion. But mere necessity of considering all possible scenarios was quite an intellectual adventure.
And I must admit it was provoked by Mark Anfinsons remarks. After all, apart from some drawbacks I mentioned, his speech was very good: well delivered, inspiring and full of counter-intuitive paradoxes.