THE RIGHT TO BE LEFT ALONE
The right of the media to publish purely private though truthful information was the subject, more than one hundred years ago, of a classic law review article coauthored by Louis Brandeis, who eventually became one of the “founding fathers” of the twentieth-century rebirth of the First Amendment. As a young lawyer, Brandeis was concerned about how local tabloids were publishing gossip about prominent people, including members of his own partner’s family. He and his partner wrote “The Right to Privacy”17 in the Harvard Law Review (1890), in which they set out this new right to “be let alone,”18 which they analogized, at least superficially, to the law of defamation. Remarkably, especially in light of subsequent developments, Brandeis did not seem particularly sensitive to how his new right of privacy might conflict with the established right of the press to publish scandalous material.
The conflict between privacy and publication becomes particularly sensitive when the privacy at issue relates to minors. I have been involved in several such cases. One of them pitted the right of Brooke Shields to prevent the publication of nude photographs taken of her when she was ten years old against the right of the man who “owned” the photos to publish them.
When Brooke was ten, her ambitious mother, Teri, signed a contract with an equally ambitious photographer to photograph Brooke naked, taking a bath. Brooke was paid $450 for the photo sessions by Playboy Press, and her mother signed a release giving the photographer the unlimited right to publish the photographs anywhere and at any time.
Seven years later, as Brooke was about the enter Princeton as a freshman, the photographer decided to exploit her fame by producing a calendar featuring naked pictures of the ten-year-old. Brooke was upset that any such calendar would circulate among her fellow students at Princeton and would cause her great embarrassment.
She hired a former student of mine to try to negotiate with the photographer to buy back the rights, and if that failed, to try to prevent publication of the photographs. My former student sought my advice on the matter. I told him it would be an uphill fight to try to enjoin the publication of the pictures, because they were not obscene and because prior restraint is always disfavored by the law.
The only theory on which I thought she could possibly succeed was that Brooke’s mother had no right to surrender her daughter’s privacy and that Brooke, now approaching adulthood, should have control over her own image.
Ultimately the court ruled, in a bizarre opinion, that Brooke had essentially waived her right to privacy by pursuing a career in which she has relied on her sexuality for her success. The court put it this way:
Much of plaintiff’s recent commercial activity upon which her fame is based has been far more sexually suggestive than the photographs which have been shown to the court. These photographs are not sexually suggestive, provocative or pornographic; they do not suggest promiscuity. They are photos of a prepubescent girl in innocent poses at her bath. In contrast, defense counsel have submitted numerous samples of sex-oriented publicity concerning plaintiff. Particularly notable is her widely televised sexually suggestive advertisement for blue jeans. Recent film appearances have been sexually provocative (e.g., The Blue Lagoon, Endless Love). Plaintiff’s claim of harm is thus undermined to a substantial extent by the development of her career projecting a sexually provocative image.19
This reasoning fails to distinguish between the rights of a seventeen-year-old and a ten-year-old. The earlier photographs were taken of a ten-year-old kid, whose mother controlled what she would do. Her decisions to appear later were made by a near-adult and were far more within her own control. The court simply ignored the argument that the seventeen-year-old should not be bound by foolish decisions made by an ambitious mother when Brooke was too young to say no.
I believe that if this case were to come before a court today, in light of the new sensitivity toward child exploitation, the case would be decided in favor of Brooke Shields. I had mixed feelings at the time about the result because it was a victory for the First Amendment, but at a heavy cost to a young woman about to enter college. Eventually the case was settled and the calendar wasn’t distributed to Brooke’s Princeton classmates. Brooke Shields went on to a successful career as a multidimensional actress.
Another conflict arose when a blogger posted a naked photograph of a famous athlete’s two-year-old son. The caption focused the viewer’s attention on the size of the boy’s penis. The issue I was asked to address was whether the blog met the criteria for child pornography, which is not protected by the First Amendment. This was an unusual request, since in most of my prior cases invoking charges of child pornography, I had defended the person charged. In one such case, a medical student who had worked as a camp counselor had taken thousands of photographs of his campers, including several of them “skinny-dipping.” The focus of the photographs was not on the genitals, and we argued that they were no different, as a matter of law, from nude photographs taken by recognized artists such as Robert Mapplethorpe, Sally Mann, and David Hamilton that were exhibited in museums. We won that case and several others like it.
This situation was different, because the only purpose of publishing the child’s photograph was to call attention to his penis. Moreover, his parents had not consented to their child being photographed by a paparazzi on an isolated beach, and so the family’s privacy rights had been violated. Eventually, the matter was resolved by the court of public opinion and the marketplace of ideas. Viewers of the blog were so outraged, and the person who posted it so roundly condemned, that the post was removed.
Another area of conflict between the First Amendment and other provisions of the Bill of Rights arises in the context of criminal trials, when the media seeks to publish information—such as an excluded confession—that may prejudice a defendant’s right to a fair trial. A variation on this theme is the media’s refusal to publish the names of alleged rape victims, while publishing the names and mug shots of the defendants. This practice does not directly impinge on the First Amendment because the decision not to publish is made by the media, rather than the government. Indeed, the Supreme Court has struck down a statute that precluded the media from publishing the names of alleged crime victims.20
I have been involved in several cases that pitted the rights of the media under the free speech rights of the First Amendment against the fair trial rights of criminal defendants under the Sixth Amendment. I have generally been on the side of the First Amendment, while sympathizing with the situation faced by defendants who would prefer to see the press muzzled when it came to their cases.
One case in which I sided with the privacy rights of a public figure over the publication rights of the media was Chappaquiddick. (More of this in the chapter on homicide.) I was part of the defense team organized by Senator Kennedy’s staff. Part of my job was to assure the confidentiality of the testimony given at the inquest concerning the death of Mary Jo Kopechne. The witnesses who were subpoenaed to testify at this secret inquest—especially the young women who shared the house with Kopechne for the weekend—were not offered the right to counsel or other rights available at an open proceeding. We argued, with some success, that because the inquest was secret and lacked the usual legal safeguards of public hearings, the right of the witnesses to confidentiality trumped the right of the media to immediate disclosure.
The First Amendment requires that the media and dissenters need breathing room, and that presumption should always be in favor of free speech. But this presumption is not without significant risks to deservedly good reputations that can be damaged by defamatory or ridiculing speech. As with other potentially harmful types of expression, defamation and ridicule come with a heavy price—one we must be prepared to pay to keep the First Amendment vibrant. Not everyone is prepared to pay that price.
11
SPEECH THAT “SUPPORTS” TERRORIST GROUPS
The MEK Case
We are currently involved in an ongoing war against t
errorism. We live in fear of another terrorist attack, such as the one that killed nearly three thousand people on 9/11, or the one that killed three and injured more than two hundred spectators and participants in the 2013 Boston Marathon. The first victim of fear has often been freedom of speech. Even before the 9/11 attacks, the understandable fear of terrorism had begun to endanger our First Amendment. Here too there is the need to strike a delicate balance, and here too we appear to be striking it improperly.
Congress has passed laws punishing anyone who knowingly provided “material support or resources” to any foreign terrorist organization.1 Such “support” could, in the view of the government, take the form of otherwise constitutionally protected speeches, writings, and other forms of expression. A “blacklist” of terrorist organizations has been compiled by the State Department. It included such obvious terrorist organizations as Al Qaeda and Hamas, but it also included some questionable groups, such as the MEK (People’s Mujahedin of Iran). The MEK is an Iranian dissident group that strongly opposes the current Iranian regime. Early in its history, it allegedly engaged in some terrorist activities, which got the group listed by the State Department, but in 2001, it renounced terrorism and surrendered its arms to the United States military in exchange for a promise of protection against Iranian violence. Its remaining members in Iraq—some 3,400 men, women, and children—were allowed to construct a small town in a place called Camp Ashraf, where they were protected by the U.S. military. But when the United States left Iraq and turned over Camp Ashraf to the Iraqi government in 2009, the protection of this vulnerable group was left in the hands of a government that was becoming more beholden to the Iranian mullahs. The result was several attacks against the residents of Camp Ashraf in which dozens of people were killed and hundreds injured. More attacks were threatened, and the Iraqi government demanded the closure of Camp Ashraf and the movement of its residents to a far smaller and more vulnerable camp, euphemistically called Camp Liberty. A humanitarian crisis loomed, and the leaders of the MEK reached out to human rights advocates around the world, including Elie Wiesel, Irwin Cotler, John Bolton, Wesley Clark, and others. They also sought the help of public figures in the United States, including Rudy Giuliani, Ed Rendell, Howard Dean, Patrick Kennedy, Louis Freeh, Michael Mukasey, Bob Torcelli, and Tom Ridge. Among those lending support were former generals who had been stationed in Iraq and had worked with the MEK.
Conferences were convened in the Capitol Building, in Paris, and in other locations, where these and other public figures spoke in support of the human rights of the residents of Camp Ashraf. They also advocated the delisting of the MEK from the State Department’s anachronistic blacklist of terrorist organizations, so that the unarmed and peaceful residents of Camp Ashraf could be resettled in other countries that had policies against accepting “terrorists.”
In 2012, I was asked to address one of these conferences. I had never heard of the MEK at the time, but was told that Elie Wiesel had spoken at an earlier conference. I checked and found Elie’s speech on the Internet. Because I agreed with what he said, I decided to accept the invitation. Over the next year, I delivered several speeches with the following theme:
I’m here today on behalf of our Constitution:
• to petition Congress for a redress of grievances
• to exercise my freedom of speech, which our government is trying to abridge
• to appeal to the press to exercise its freedom to publicize a humanitarian crisis
• to peaceably assemble to assure that our government keeps its promise.
Our government made a sacred contract—in our name—with the residents of Camp Ashraf, who have completely fulfilled their contractual obligations.
Now it’s time for our government to fulfill its contractual obligation.
My speech continued:
I have been in contact with representatives of our State Department and high officials in the White House, who have asked our assistance in helping to transition the residents of Ashraf to safe havens outside of Iraq. We have done our part, now the government and the United Nations must do its part. This must be a joint effort.
We cannot fail. If we do, there will be a humanitarian disaster, which is easily preventable. Lives are at stake. So is the honor of the United States. The world will hold our nation responsible if we fail.
Normally, we who have devoted our lives to human rights can act only after rights have been violated. Here we have the privilege of saving lives, not only holding responsible those who have taken lives.2
It would be difficult to imagine words that fit more closely into the paradigm of First Amendment protected political speech than petitions of government for a redress of grievances.
Yet after delivering these words, I was informed that a subpoena had been issued against my speaker agency, and those of other speakers, seeking records of all speeches delivered “in support” of the MEK. I had to retain a lawyer to defend my constitutional right to deliver a speech “on behalf of the Constitution.” I was also retained as a lawyer on behalf of former mayor Giuliani, former attorney general Mukasey, former FBI head Freeh, and several generals who wanted to file an amicus curie (friend of the court) brief seeking the delisting of the MEK on humanitarian grounds.
In September 2012, Secretary of State Hillary Clinton removed the MEK from the State Department’s list of organized terrorist organizations.3 So now anyone can speak in support of this group without risking prosecution for lending “material support” to a terrorist organization.
But the statute making it a crime to provide “material support” to a listed terrorist organization remains on the books, and there are some in the government who interpret that statute to include speeches that would otherwise be protected by the First Amendment. It remains to be seen whether the courts will strike the balance in favor of freedom of speech when the thumb of terrorism weighs heavily on the scale.
CONCLUSION: THE DANGER OF SELF-CENSORSHIP
The First Amendment has undergone more change in the past fifty years than it did in the first 170 years of its existence. Most of the changes have been for the better, such as the virtual elimination of offensiveness—especially vicarious offensiveness—as a justification for censorship, and the severe limitations placed on defamation actions involving public figures. I’m proud of the role I have played in helping bring about these positive changes.
It is never easy to strengthen the First Amendment, because most Americans support freedom of speech in the abstract but far fewer support speech that hurts, endangers, or deeply offends them. Echoing Justice Black, many Americans characterize speech of which they disapprove as “not really speech,” or as speech that fits into the category of “shouting fire.”
Nearly two hundred years ago, the French philosopher Voltaire articulated the fundamental premise underlying true support for freedom of speech: “I disapprove of what you say, but I will defend to the death your right to say it.”4 Defending “to the death” may be a bit strong and “disapprove” a bit weak, but the core of Voltaire’s point is crucial. It is easy, and rather self-serving, to rally round the flag of the First Amendment on behalf of those whose speech you admire or enjoy. But unless you are prepared to defend the freedom to speak of those who make your blood boil, you cannot count yourself as a member of that rather select club of true believers in freedom of expression.
I call it a select club because most people, even most who claim adherence to the First Amendment, favor some censorship.
The current war against radical Islamic terrorism may become the new test for membership in the First Amendment Club. It is quickly becoming the battleground, not only because of governmental efforts to censor speech that is deemed supportive of terrorism, but also because of self-censorship that results from fear of violent responses from radical Muslims who are offended by constitutionally protected speech. Although the “fighting words” doctrine has always imposed a limitation on freedom of speech, it had
been considerably weakened both in theory and in practice until the recent advent of radical Islam, with its threats to kill anyone who insults the religion or its prophet. These threats have been accompanied by murders in several parts of the world, thus escalating the concept of “fighting words” into the more lethal concept of “killing words.” As a result, publishing houses have been reluctant to include material that might give rise to threatened violence. Following the publication by several Scandinavian newspapers of cartoons that depicted Muhammad, there were death threats and acts of violence. This led Yale University Press to decide not to include these cartoons in an academic book about the controversy. This act of censorship was not brought about by any governmental pressure, since the First Amendment would clearly have protected the publication of the cartoons. It was brought about by the self-censorship of the publishing house, growing out of the understandable fear that publication would result in violence. This phenomenon gives those who threaten violence an effective veto over what can be published in the United States.5
In recent years, there have been efforts to internationalize the censorship of material deemed offensive to Islam and other religions. Various agencies of the United Nations have proposed, in the name of “multiculturalism,” severe restrictions on the right to criticize controversial cultural and religious practices deemed sacred by some and offensive by others.6 The motivation behind some of these proposals is to limit the rights of those who would blaspheme Islam or its prophet and to legitimate those governments that still insist on criminalizing such blasphemy. But criticizing religion and religious practices—whether of Islam, Judaism, or Christianity—lies at the core of freedom of expression. Indeed, throughout history, religious dissenters have been crucified, beheaded, hanged, burned, and killed in other gruesome ways. The fatwa issued against Salman Rushdie and those who published cartoons of Muhammed show that this problem persists. Unless freedom to criticize religion—to commit blasphemy—is fully protected, freedom of expression will be severely compromised.
Taking the Stand Page 24
