Free Speech Not Present at Some Universities

by Walter Brasch

        Like most Jews, Benjamin Aaron Shapiro, a respected journalist, is an advocate for social justice, following the Jewish concept of Tikun Olam, literally translated as “repair of the world.” Unlike most American Jews, Shapiro is a conservative whose views of the nation are closer to those of Ted Cruz than of Bernie Sanders.

        Shapiro is a summa cum laude graduate of UCLA, and an honors graduate from the Harvard University school of law. He backs up his views and political philosophy with facts, historical allusions, and a strong interpretation of the Constitution. His conclusions and opinions, however, often go far outside what even the far-right believe.

        He says “Sesame Street” and “M*A*S*H” are left-wing propaganda, and “Happy Days” has a theme of pacifism. He is a strong proponent of gun rights legislation and an opponent of the “Black Lives Matter” social movement. His speeches, syndicated newspaper column, and his radio commentaries sometimes lead to civil disorder, often begun by those who don’t share his ultra-conservative views.

        One of Shapiro’s six books is Brainwashed: How Universities Indoctrinate America’s Youth (2004), published shortly after he graduated from UCLA. What happened at a few universities affirms some of the argument in that book.

        In February, the president of Cal State/Los Angeles cancelled a forthcoming speech by Shapiro after students claimed what he had to say would be “hate speech.” President William Covina said Shapiro could speak at a time when a suitable opponent was found; however, Shapiro pointed out that Cal State allowed liberal speakers without having a conservative respondent. Covino reversed his position three days before the speech.

        On the day of the speech, several hundred students blocked the entrances of the Student Union Building, intimidating those who wanted to hear what Shapiro had to say, and blocking those inside the building from leaving. The Daily Caller, a conservative newspaper, reported there were several fights outside the building. Following the speech, students moved to the president’s office, held a sit-in, and demanded his resignation for allowing the speech. Cal State later charged Young Americans for Freedom (YAF), the sponsoring organization, $621.50 for additional security; it did not charge other organizations that brought speakers to the campus.

        In April, Shapiro spoke at Penn State; several dozen protestors shouted, banged on the doors to Sparks Hall, and played pre-recorded music at a high volume, trying to disrupt Shapiro’s speech, according to The Daily Collegian. The title of his speech was “When Diversity Becomes a Problem: The Fascist Nature of Liberalism.”

        Last week, DePaul University blocked an invitation by the YAF chapter to host Shapiro. Citing the Cal State and Penn State episodes, the 24,000 student Catholic university in Chicago, according to an official statement, “determined, after observing events which took place when Mr. Shapiro spoke elsewhere, that it was not in a position to provide the type of security that would be required to properly host this event at this time.” DePaul’s argument—one of safety—was a lame way to deflect criticism that it was blocking free speech. Certainly, a university with a large on-campus police force and a Campus Violence Prevention Plan and the ability to ask local community police for additional protection should not have been able to hide beneath the cloak that the words of one person threatened campus security.

        In 1644, before the English parliament, poet John Milton boldly spoke out against censorship, arguing that mankind is best served when there is a “free and open encounter” of all ideas. It was a revolutionary concept in an empire that required printers to get a license and be subjected to the whims not only of a monarch but the government as well. “Let her [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” Milton rhetorically asked.

        In the 18th century, Lord Blackstone, one of the kingdom’s most distinguished jurists, spoke against prior restraint of free speech and of the press. The views of Milton and Blackstone became a basis of The First Amendment, one of the most liberal parts of the U.S. Constitution. It was this amendment that assured freedom of the press, speech, and religion; that amendment allows people to peacefully assemble and, if they wish, to protest government actions; it gives the people the right to petition the government for a “redress of grievances.”

        During the next two centuries, others cemented this belief into American law. In the mid-19th century, philosopher John Stuart Mill stated, “We can never be sure that the opinion we are endeavoring to stifle is a false opinion, and if we were sure, stifling it would be an evil still.” At the beginning of the 20th century, Supreme Court Justice Oliver Wendell Holmes said that democracy is best served in “a marketplace of ideas.”

        The Universal Declaration of Human Rights, developed by the United Nations after World War II, declares “Everyone has the right to freedom of thought, conscience and religion . . . [and] the right to freedom of opinion and expression, which implies the right . . . to hold opinions without interference and to seek, receive and impart information regardless of frontiers, information and ideas through any media whatsoever.”

        America’s First Amendment applies only to government interference, and not to the suppression of free speech in the private sector. But, every university should be a place where all views are heard, analyzed, and debated. Professors in several departments—including history, political science, criminal justice, sociology, psychology, philosophy, and journalism—could have had discussions about Shapiro’s speech and made it a “teachable moment” within the confines of their own discipline.

        Instead of blocking opposing views, students should be aware that the solution to shutting down opposition beliefs is not by censorship or prior restraint, but in applying Milton’s belief that facts and civil discourse will allow truth to emerge.

        [Dr. Brasch, an award-winning journalist and professor emeritus of mass communications/journalism from Bloomsburg University, is a liberal Jew and an ACLU member and officer. For more than four decades, he has been an outspoken advocate in defending the First Amendment rights of all people, no matter what their political, religious, or philosophical views are. His current book is FrackingAmerica: Sacrificing Health and the Environment for Short-Term Economic Benefit. The book includes numerous examples of how local and state governments, working with the oil/gas exploration industry, have breached First Amendment rights.]

Newspaper Editor Files Suit Against Philadelphia Police for Constitutional Violations

CHERYL BIREN-WRIGHT IS ARRESTED BY PHILADELPHIA POLICE

FOR BEING A REPORTER

by Walter Brasch

            A former managing editor for an online newspaper, OpEdNews, has sued the city of Philadelphia and eight of its police officers for violating her Constitutional rights.

            Cheryl Biren-Wright, Pennsauken, N.J., charges the defendants with violating her 1st, 4th, and 14th amendment rights. The civil action, filed in the U.S. District Court, Philadelphia, is based upon her arrest during a peaceful protest Sept. 12, 2009, at the Army Experience Center (AEC) in the Franklin Mills Mall.

            According to the complaint, Biren-Wright, who was not a part of the demonstration but at the mall as a reporter-photographer, was arrested and charged with failure to disperse and conspiracy, second degree misdemeanors. The charges were subsequently dropped by the Philadelphia district attorney.

            The Philadelphia police also arrested and charged six protestors with conspiracy and failure to disperse—Elaine Brower, 55, New York, N.Y.; Richie Marini, 35, Staten Island, N.Y.; Joan Pleune, 70, Brooklyn, N.Y.(one of the original Freedom Riders in 1961); Beverly Rice, 72, New York, N.Y.; Debra Sweet, 57, Brooklyn, N.Y.; and Sarah Wellington, 26, Piermont, N.Y. Two months after Biren-Wright’s case was dropped, the six protestors were found not guilty in Philadelphia Municipal Court.

            Paul J. Hetznecker, who represented the six defendants in the criminal trial, and Biren-Wright in her civil suit, believes that police over-reaction to protestors, as well as their lack of knowledge or appreciation for Constitutional protections, may be “a systemic problem throughout the country.” Hetznecker says under Constitutional and state law, “There can not be an arbitrary and capricious decision to end the civil rights of the protestors.”

            The civil suit complaint charges that police violated Biren-Wright’s First Amendment rights to “gather information . . . to cover a matter of public interest including the law enforcement activity in public places.” Actions by the police deprived her of 4th and 14th amendment rights that, according to the complaint, protect against “unreasonable search and seizure,” “loss of physical liberty,” and “freedom from excessive use of unreasonable and justified force.”

            The suit lists six separate counts:

            ● Abridgement of her rights under the First Amendment to observe and record news in a public place.

            ● False arrest and imprisonment

            ● Use of excessive force by the police.

            ● False arrest under state law

            ● Common Law Assault under state law

            ● Failure of the City of Philadelphia to adequately train and supervise its police. The complaint charges that because of accepted practices, the defendants may have believed “that their actions would not be properly investigated by supervisory officers and that the misconduct would not be investigated or sanctioned, but would be tolerated.” The policy, according to the complaint, “demonstrates a deliberate indifference on the part of the policymakers of the City of Philadelphia, to the constitutional rights of persons within the City, and were the cause of the violations of the Plaintiff’s rights. . . .”

            Named in the suit in addition to the City of Philadelphia are Lt. Dennis Konczyk, officers Tyrone Wiggins, John Logan, Robert Anderson, Donald West, William Stuski, and two unnamed John Does.

            The Philadelphia Police Department refused to comment about the suit as a matter of policy regarding “issues in court,” according to Jillian Russell, Department spokesperson.

            In August 2008, the Army opened the AEC, a 14,500 square foot “virtual educational facility” with dozens of video games. The Center, deliberately located near an indoor skateboard park, replaced five more traditional recruiting offices, and was designated as a two-year pilot program. The initial cost was $12 million.

            Army recruiters could not actively recruit children under 17, but could talk with the teens and answer any of their questions about the Army. Among the virtual games was one in which children as young as 13 could ride a stationary Humvee and shoot a simulated M-16 rifle at life-like video images of Muslims and terrorists.

            Because of the emphasis upon war, and a requirement that all persons had to sign in at the center, thus allowing the recruiters to follow-up as much as four or five years later, peace activists began speaking out against the AEC.

            To counter what was quickly becoming a public relations problem, the Army sent out news releases, picked up by the mainstream media, and established a full social media campaign to explain the “benefits” of the AEC. The protests continued.

            Elaine Brower, whose son was in Iraq on his third tour of duty, told OpEdNews a day after her arrest: “The AEC is giving guns to 13-year-olds, drawing them in with violent video games. As more and more Afghan civilians and U.S. military are being killed in the U.S. occupation of Afghanistan, we’re saying ‘no’ to these wars. We’ve got to stop the flow of youth into the military, where they're being used to commit war crimes in our name.”

            With a police permit, and escorted by officers from Philadelphia’s Civil Affairs Unit, about 200–250 protestors—most of them middle-aged or senior citizens, many of them veterans—had come to the AEC, believing their First Amendment rights were being protected. The protest, although noisy at times, was peaceful; the counter-demonstration wasn’t.

            According to the complaint, “The counter-demonstrators [members of an organization known as The Gathering of Eagles] yelled, jeered and taunted the AEC protestors. At no time did [the police] direct, or attempt to limit the First Amendment activities of the counter-demonstrators,” nor were they ever told to disperse.

            Throughout the demonstration, the protestors had not given any indication that they posed any physical threat to others. However, about 45 minutes after the demonstration began, the police, under direction of Lt. Konczyk, ordered the protestors to disperse.

            At that point, Biren-Wright, according to the complaint, “placed herself outside the immediate area . . . so as not to interfere with the police activity.” She continued to photograph and report on the demonstration. The complaint charges that Lt. Konczyk, “without just cause or legal justification,” directed several officers to arrest her, walking past several protestors and counter-demonstrators. She says she told the officers she was a member of the press. At no time, she says, did she participate as a demonstrator nor verbally or physically threaten anyone. The officers, says Biren-Wright, arrested her without any warning. The arresting officer’s “degree of anger—he was clearly red-faced—was inappropriate,” she recalls. The police, says Biren-Wright, “were clearly targeting me, trying to keep me from recording the demonstration and their reactions.”

            One officer, says Biren-Wright, “unnecessarily twisted my arm.” Another officer seized her camera and personal items. One of the officers put plastic cuffs on her wrists “so tight that it caused significant pain, swelling and bruising, and an injury that lasted for several weeks,” according to the complaint.

            Biren-Wright’s 15-year-old daughter was shopping in the mall during the protest, but had reunited with her mother shortly before the arrests. Her daughter, says Biren-Wright, “came closer upon the arrest and I told the officer she was my daughter and a minor and would be alone.” The officer, says Biren-Wright, snapped, “You should have thought of that before.” At the processing center that police had previously set up at the mall, Biren-Wright told several officers that he r daughter was alone in the mall and was from out of state. “None of them did anything to ensure her safety,” she says. The daughter, unsupervised, eventually found Rob Kall, OpEdNews editor, who drove her to the jail to take her mother’s keys and then drove her home, where she spent the night alone.

            Outside the mall, counter-protestors shouted obscenities as those arrested boarded the police bus. “They were standing at the door to the bus,” says Biren-Wright, “and posed a safety issue to us since we were in handcuffs.”

            The six who were arrested and Biren-Wright were initially taken to the 15th District jail. Richie Marini, the lone male arrested, was kept at the district jail. The six women were transferred to the jail at the Philadelphia Police headquarters, known by locals as the “Roundhouse,” where a nurse took each woman’s vital signs and asked if there were any injuries. “I showed him my wrist and thumb that were already red and swollen” from the restrictive handcuffs, says Biren-Wright. His response, she says, was “That doesn’t count.”

            Biren-Wright, along with the other five women, was held for 14 hours. At 5 a.m., she says, they were released from the “Roundhouse” onto a dark and barren street—there were no taxis anywhere near—and locked out of the police station. Although the women had cell phones, they had not been allowed to call for rides while in the jail area. Outside, they called friends, but waited until help arrived. Marini was released from the district jail later that morning.

            The only reason Biren-Wright’s pictures of the demonstration survived is because she had secretly removed the memory chip during her arrest. When the camera was finally returned, “all of the settings were messed up and the lens was not replaced properly.”

            The Army closed the AEC at the end of the pilot program. It had claimed that because of increased enlistments nationwide, the Center was no longer needed. It never acknowledged that the protestors and the public reaction may have been a reason for the closing.

            In an unrelated case, the U.S. Court of Appeals for the Third Circuit ruled in October 2010 [Kelly v. Borough of Carlisle] that recording police activity in public places is protected by Constitutional guarantees. This month, the ACLU settled a case, for $48,500, in Pittsburgh when a University of Pittsburgh police officer arrested Elijah Matheny and charged him with felony violation of the state’s Wiretap Act for using a cell phone to record police activity. Matheny spent a night in jail following his arrest. [See: Matheny v. County of Allegheny, et al.] The ACLU charged that the district attorney’s office “had engaged in a pattern of erroneously advising law enforcement that audio taping police officers in public violates Pennsylvania’s Wiretap Act.” Following the Third Circuit’s decision in the Kelly case, a conviction against Matheny is expected to be overturned.

            The arrests in Philadelphia, Carlisle, and Pittsburgh underscore two major problems, both prevalent throughout the country. The first problem is a lack of understanding and respect for the Constitution by a large number, although not a majority, of police officers. For that reason, all police forces and district attorneys offices, from small isolated rural communities to the largest urban departments, need to have constant education about civil rights and Constitutional guarantees—and the penalties for violating those rights.

            The second major problem is inherent within the mass media. Reporters need to know how and when to challenge authority to protect their own and the public’s rights.  A camera crew from the PBS “Frontline” series was at the protest, but abruptly stopped recording the demonstration after Brower was arrested and either before or during Biren-Wright’s arrest. Rob Kall later said that a member of the “Frontline” crew told him the police informed them they would be arrested if they continued to film the demonstration.

            Police threats, which violate Constitutional guarantees, place a “chilling effect” upon the media to observe and record actions by public officials. Even without a direct order by a public official, reporters may do what they perceive to be what others want them to do. The media, like police and public officials, also need constant education to know when police orders are lawful and when they are not. An order to move away from a scene may be lawful. An order to stop filming a scene upon threat of arrest is not.

            In federal court, in the case of Biren v. City of Philadelphia, et al., these issues, and others, will be raised. But had there been an understanding of the Constitution by the police, the case would never have gotten to the point of a federal civil suit.

[Walter Brasch is a former newspaper and magazine reporter and editor. He is author of 17 books, the most recent one Before the First Snow: Tales from the Revolution, journalistic fiction about the counter-culture as seen through the eyes of a “flower child” and the reporter who covered her story for three decades. The book is available at www.greeleyandstone.com, amazon.com and other stores.]

Government May Be Violating Tobacco Companies’ 1st Amendment Rights

by Walter Brasch

            A controversial Supreme Court decision less than two years ago could have the unintended consequence of significantly reducing the government’s 46-year campaign against cigarettes.

In a 5–4 decision, largely along political lines, the Supreme Court ruled in Citizens United v. Federal Elections Commission (October 2009) that not only were parts of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain–Feingold Campaign Reform Act) unconstitutional, but that corporations and political action committees enjoyed the same First Amendment rights as private citizens.

            The government’s anti-smoking campaigns, most of them the result of a combination of executive department and Congressional action, essentially have three major parts: anti-tobacco advertising and public service messages, warning labels on cigarette packs, and the outright ban on several forms of tobacco company advertising.

Government Advertising

            Because the First Amendment applies only to governmental intrusion upon free expression, when the government creates advertising (whether TV ads or pamphlets), there can be no significant First Amendment issues. There may be some recourse, however small, in suits against use of taxpayer funds for political purposes, similar to the government’s role during the George W. Bush administration in forcing anti-abortion education upon women and health clinics.

Labels

            The anti-smoking campaign had begun with the 1964 Surgeon General’s report that there was a strong correlation between smoking, lung cancer, and chronic bronchitis.. The following year, Congress passed the Cigarette Labeling and Advertising Act that required every cigarette pack to have a health warning: “Caution: Cigarette Smoking May be Hazardous to Your Health.” The Public Health Cigarette Smoking Act of 1969,  taking effect two years later, strengthened the wording on cigarette labels to: “Warning: The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health.”

            However, the labels had minimal effect on reducing smoking. In 1984, unwilling to face political consequences from an outright ban, such as it enacted against any form of marijuana, Congress passed the Comprehensive Smoking Education Act that required even stronger messages on each pack.

Last week, the Food and Drug Administration, acting within authority of the Family Smoking Prevention and Tobacco Control Act of 2010, ordered all cigarette manufacturers to include nine new designs on a rotating basis on all cigarette packs. The designs take up the top half, both front and back, of every pack. Several of the messages are medically-supported statements that tell users that cigarette smoking causes cancer. One of the graphics is a pair of cancerous lungs next to a pair of non-cancerous lungs. Another label shows a set of rotted teeth. Another shows smoke coming from a tracheotomy hole.

The FDA also requires that government-approved messages appear on one-fifth of every print ad.

            Based upon interpretation of the Citizens United case, it would not be an unreasonable stretch to argue that the newly-required messages, with graphics and text, place an undue burden on a corporation’s rights of free speech by restricting their own message to less than half. Another argument could be made that by forcing the tobacco companies to accept pre-determined text and graphics is de facto government intrusion upon the rights of free expression.

Tobacco Company Advertising

            The largest concern for First Amendment consideration is in the area of the federal government imposing restrictions upon advertising and information messages.

            In 1967, the Federal Communications Commission, citing the Fairness Doctrine, required radio and TV stations that aired paid ads from tobacco companies to run anti-smoking ads at no cost. Unwilling to give up five to ten minutes a day to unpaid advertising, the stations began “voluntarily” dropping cigarette advertising.

            The Public Health Cigarette Smoking Act, which had changed the text of warning labels, also banned cigarette advertising on radio and television. In a concession to the tobacco companies, Congress permitted the law to take effect on Jan. 2, the day after the televised football bowl games. The effect of the law was a loss to radio and television stations of about $200 million a year in cigarette advertising, and a significant increase in advertising in newspapers, magazines, and billboards—and not much reduction in smoking.

A 1991 study in the Journal of the American Medical Association concluded that the cartoon character Joe Camel, advertising mascot for Camel cigarettes, was recognized by 3- to 6-year-olds almost as much as they recognized Mickey Mouse and Fred Flintstone. The AMA charged that R.J. Reynolds, manufacturers of Camel cigarettes, had targeted children; the company denied the charges, but eventually settled the lawsuit for $10 million, the funds to go to anti-smoking campaigns.

            In 1998, the Tobacco Master Settlement Agreement was the result of years of litigation and negotiation between the four largest tobacco companies, which controlled about 97 percent of all domestic sales, and 46 state attorneys general; four states had already settled. That agreement exempted the companies from class-action tort liability by citizens filing against the companies for health effects from smoking. The federal government also agreed to provide subsidies to tobacco farmers to cover losses based upon reduction of demand for their product. In exchange, the tobacco companies agree to provide $365.5 billion, with most of the funds going to the states for anti-smoking campaigns, and to allow FDA regulation. Among other provisions, the tobacco companies agreed to cut back advertising and sponsorship of activities, especially those that targeted youth. Because this was a civil case settlement, First Amendment concerns were rendered moot.

            However, the Family Smoking Prevention and Tobacco Control Act of 2010 is a government-imposed control that brings to question distinct First Amendment concerns. That Act bans tobacco companies from sponsoring all sports and cultural events, which could loosely be interpreted as a violation of the right of association, not specifically mentioned in wording in the First Amendment but extended by the Supreme Court decisions involving First Amendment guarantees. The Act further bans tobacco companies from displaying all tobacco-related images, including their logos, on any apparel, and also requires most advertising to be black lettering on a white background. Both actions are probable First Amendment violations.

A critical side issue melds labels with the media. It would be nearly impossible for any medium to show anyone with a cigarette pack, whether in news or entertainment, without also showing the government’s message. Any attempt by the government to regulate what appears on screen or in print would violate the First Amendment.

            Without the Citizens United decision, the government’s rights to regulate corporate advertising would probably not have significant basis for challenge. With that decision, tobacco corporate entities suddenly have a case.

[This column is meant to be a general overview and not a definitive analysis or detailed case study of possible First Amendment violations of government-imposed sanctions against tobacco companies.]