At Large
Protected speech
By Doug Cabral - September 27, 2007
When the predictably inflamed political shootout erupted last week over the invitation from Columbia University to the president of Iran, I was reminded of a telephone call from a Times reader. The caller was thoughtful but troubled. It was a Thursday afternoon, and she had found something in that morning's newspaper that disturbed her.
You'll be relieved to learn that my caller's questions had nothing to do with the Martha's Vineyard Commission, the Steamship Authority, bad driving by August visitors, bad manners by August visitors, mopeds, or global warming.
I discovered too that my caller did not propose to take issue with the accuracy of the news reporting. She did not address the editorial positions of the paper, toward which I have been told some few readers have on occasion raised mild objections.
Nor did the words libel suit arise in the conversation. Those words can give a newspaper editor something of a flutter, and their absence, as the jailbird housewares maven likes to say (though not so often recently), is a good thing.
It was an advertisement that occasioned the call. The ad, labeled by The Times a political advertisement, appeared in the News section a few years ago. The ad was placed and paid for by the Foundation for the Defense of Democracies, an organization with headquarters in Washington, D.C. It was headlined "It's not just al-Quaeda," and it drew attention to Islamic declarations of hatred for Jews and for Americans. The speakers whose comments were reprinted in the advertisement were Islamic religious leaders. The ad labeled such leaders "Jihadists" and warned that in the struggle against those who hold and propagate such views, "We can't afford to lose. Our freedom depends on it."
My caller wanted to know why The Times published such an advertisement, which, she explained, seemed hostile to a peaceful resolution of differences between the Islamic world and those of Americans and Jews. She said the ad's language, in its characterization of the Islamic position, might encourage hatred of Muslims and even violence toward them.
In a similar vein, critics castigated Columbia and its president for inviting the Iranian leader to speak to students and faculty, because of the awful things he has said and, along with members of the regime he fronts, done. Although people generally believe that here, in contrast to illiberal Iran, you can say what you want about public matters great and small, they sometimes believe that certain views ought to be suppressed, typically views they do not hold, or hold to be too vulgar to see the light of day.
People also accept that newspapers ought to be free to report and print the news and comment on it, if they do so responsibly and fairly. When newspapers pry into the private lives of politicians, actors, sports stars, and other celebrities, people, also generally, are not so sure the First Amendment prohibition against laws that would abridge the freedom of speech or of the press ought to be inviolable. Why allow malfactors to shout calumnies at Jews, Americans, Christians, Muslims, the president of the United States, or, you name it. Still, readers by the millions enjoy the celebrity gossip and its admixture of pseudo-news and promotion, and they mostly take the horrifying political rhetorical attacks for the mean spirited but insignificant clap trap they are. So, the First Amendment survives, shielding even the most outrageous intrusions, even the Iranian president's self-destructive appearance at Columbia.
As for newspapers and the First Amendment's application to the publication of the advertisement that had aroused my caller, the legal precedent on which modern understandings of the First Amendment's authority stand is the Supreme Court's spring 1964 decision in "The New York Times Company v. Sullivan." This is the decision in which Justice Brennan set the standard for reporting that could withstand libel charges: "The Constitutional guarantees require, we think, a Federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
For an understanding of the issues and importance of the court's decision in New York Times v. Sullivan, I rely on Tony Lewis' authoritative and stirring 1991 study of the case, "Make No Law: The Sullivan Case and the First Amendment" (New York: Random House). Tony, a West Tisbury neighbor, is a matchless guide in such thickets of principle as these.
But you may be surprised to know that the Sullivan case began with an advertisement, not a news story, an editorial, a letter to the editor, or an OpEd column. The ad, headlined "Heed Their Rising Voices," appeared in the New York Times of March 29, 1960. In its layout, it was not entirely unlike the ad that appeared in the MV Times and occasioned the telephone call. It was placed by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South, and it was signed by many prominent political, business, and academic leaders. The ad was powerful in its condemnation of politicians in the South for their efforts to stop King's campaign for equal rights. It was also inaccurate in several important respects, and the inaccuracies tended to diminish the public reputations of important political leaders. The abused officials sued The New York Times for libel.
Justice Brennan may have been more sympathetic to desegregation efforts than he would have been to the views of those who placed the "It's not just al-Quaeda" ad, but his understanding of the First Amendment, as expressed in Sullivan, could certainly be consistently applied here.
"Thus," he wrote in 1964, "we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials . . . . The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection."
Exactly. Conscious as most newspapers are that the First Amendment that protects our work at the same time obliges us to welcome differing and even disturbing views, we extend to letter writers, commentators, and commercial and political advertisers (such as the Foundation for the Defense of Democracies) the greatest possible latitude to be heard on important public issues and to participate in the clamorous life of an often contentious community. Let's hear what the dictator has to say and do with it as we see fit.
John Walter of Edgartown, a book publisher himself, emailed me to say that "A Wind to Shake the World" by Everett Allen, mentioned in this space last week, is not out of print, as I mistakenly wrote. Allen's book has been reissued in a paperback by Commonwealth Editions of Boston, which also "resuscitated" (John's word) Allen's "An Elegy for Martha's Vineyard."
