By Harvey Silverglate

The act of censorship is usually seen as a direct affront to the First Amendment, buts it’s not always that clear and simple. The reason, of course, is that the amendment has several clauses, and at times some of them are in tension with one another, if not in seeming conflict.

Consider today’s curious report in The Boston Globe that the pastor of St. Joseph’s School in Wakefield, Rev. Ron Barker, ordered the removal of the Harry Potter series of books from the school library’s shelves. At first, it seems to be a slam-dunk case of unconstitutional censorship. Once a book is selected by the relevant school authorities for placement in a school library, the Supreme Court has ruled, there has to be a pretty good reason for administrators to remove it. The First Amendment, after all, protects the freedom of speech and press.

However, the First Amendment also protects the “free exercise” of religion, and if an administrator at private parochial school decides, as Rev. Barker reportedly has, that the witchcraft and sorcery themes of J. K. Rowling’s now-classic series are inimical to Catholic religious teachings, and that, as one parent reported, “he said it’s his job to protect the weak and the strong” from undue literary influences, then the First Amendment actually protects that act of censorship. Besides, the First Amendment arguments are moot in this case anyway, because the constitution protects only against censorship by public officials, and that doesn’t cover any private school, whether religious or not.

And so, in this instance, the First Amendment, if it were even applicable, actually protects the power of Rev. Barker to keep the students from reading the Potter books in school. Of course, having the power to censor does not mean that it is wise, or even effective, to do so. Indeed, Rev. Barker could have saved himself the trouble, since it’s obvious that the students will read the books elsewhere if that’s what they want to do. There’s one surefire way to deal with official censorship – by unofficial reading outside of school.

            Any publication that devotes itself to promoting liberty, like this blog, must stop for a moment to take note of the passing of one of the giants in the never-ending battle for freedom. Connecticut attorney Catherine Roraback died last week at the age of 87. While she left no survivors other than a sister who announced her death, she did leave an enormous legacy for which we all should be grateful.

            “Katy,” as she was known to friends and colleagues, was the brilliant legal strategist behind the test case Griswold v. Connecticut, which challenged a Connecticut statute banning the sale of contraceptives. The Supreme Court heard the case in 1965 and found by a 7-to-2 vote that the antiquated Connecticut law was an unconstitutional violation of a newly-conceived zone of personal, intimate privacy.

Griswold v. Connecticut announced the right of married couples to obtain contraceptives from their physicians. Roraback represented Estelle Griswold, the executive director of Planned Parenthood in Connecticut, as well as Dr. Charles Buxton, the head obstetrician/gynecologist at the Yale School of Medicine. After years of trying to engineer a strategy for testing a mid-19^th century statute criminalizing both the prescription and use of contraceptives, Griswold and Buxton, with Katy at their side, engaged in civil disobedience and opened a birth-control clinic in New Haven – this, in a heavily Catholic state and at a time when few would have dreamed that  the “due process of law” clause of the Fourteenth Amendment would include such a right.

            Katy’s Griswold strategy was brilliant, and successful, because it used as the opening wedge into the “zone of intimate privacy” area of the due process clause not only a married couple who wanted to enjoy sex without procreation, but also a clinic and a reputable physician who were fighting for the right to treat their patients without the state looking over their shoulders (or into the bedroom, as the case may be). This successful strategy was replicated later, through a series of high court opinions that legalized the prescription of contraceptives for unmarried couples, then the right of a woman to get, and a physician to give, an abortion, and, then, the right of same-sex couples to engage in intimate relations without the storm troopers bursting into the bedroom. As we in Massachusetts know, all of this groundwork led the Supreme Judicial Court of Massachusetts to declare same-sex marriage a constitutional right under the nation’s oldest state constitution.

            We can trace all of these rights in large measure to the brilliance, persistence and courage of this remarkable lawyer, who graduated from Mount Holyoke College in 1941 and was the only woman in her Class of 1948 at the Yale Law School.  Katy was a mentor as well to younger lawyers, particularly women trial lawyers who had a hard time breaking into certain legal fields traditionally closed to women, most notably criminal defense, civil liberties, and civil rights. Tough as nails, Katy represented not only establishment types like the head of obstetrics at Yale, but also the head of the radical Black Panther Party, Bobby Seale, tried in 1971 for the murder of another party member suspected of disloyalty (resulting in a mistrial).

            Katy Roraback will be deeply missed by many, but her legacy is constantly with us to remind us of what a single brilliant, courageous and persistent person can accomplish in a single lifetime.

Scholars have for centuries sought to define and promote the concept of academic freedom, and, while the exact definitions they’ve arrived at have varied, the underlying rationale has always been the same: to shield academics from political and religious pressure. For this reason, I’m a bit puzzled by the fact that many of the modern-day groups that describe themselves as defenders of academic freedom are also clearly political in nature and often seem to be promoting a political agenda rather than neutral principles of liberty.

The most recent academic freedom movement within the academy, which calls itself “The Ad Hoc Committee to Defend the University,” seems to fit this mold. It eloquently extols the virtues of academic freedom, particularly in debates over the Middle East, but upon closer inspection, seems concerned only with the rights of scholars from one side – theirs, of course – of  the political spectrum.

The Committee, led Joan Wallach Scott, a history professor at Princeton, has already voiced its opinion on quite a few academic freedom controversies, and, so far, they’ve always come out pretty much on the right side, in my view. When St. Thomas University cancelled a speech by critic of Israel and Nobel laureate Archbishop Desmond Tutu, members of the Committee rallied behind the censored clergyman. And when the pro-Israel group StandWithUs convinced the University of Michigan press to stop publishing a book called Overcoming Zionism, the Committee helped convince Michigan to change its mind, arguing persuasively against these “efforts to broaden definitions of anti-Semitism to include scholarship and teaching that is critical of U.S. foreign policy in the Middle East and of Israel.”

So what’s the problem, then? As you can see, all of these controversies involve censorship of anti-Israel speakers. In order for me to take this group seriously, it first needs to defend the academic freedom of someone whose speech doesn’t fit neatly into the limited range of politically acceptable (or, as some prefer to say, politically correct) viewpoints prevalent on most campuses. The Committee stood behind Tutu, a liberal darling, but where was it when the Regents of the University of California nixed a speaking invitation to former Harvard University president and Secretary of the Treasury Lawrence Summers because of complaints from a handful of leftist postmodernist professors? Similarly, the Committee criticized Israel supporters Alan Dershowitz and David Horowitz for involving themselves in DePaul University’s tenure dispute with Jewish-born Israel-basher Norman Finkelstein, but why hasn’t it also criticized the leftist academics who aggressively sought to bar Arab-born Israel-supporter Nonie Darwish from speaking at Brown last year? (Disclosure: I’m a long-time personal friend of Dershowitz. This said, however, I’ve been publicly critical of a number of his positions.)

As I’ve said many times, and will say again, once we cease looking at free speech and academic freedom as modal liberties – that is, as primary values in and of themselves – and begin to treat them as a means to a politicized or ideological end, we irreparably weaken thm in the long run. Either free speech and academic freedom are seamless and equally applied across the ideological spectrum, or they might as well be abandoned entirely. The founders of these important doctrines understood this. It’s a shame that their modern-day counterparts need so often to be reminded of it.

(My thanks go to my research assistant, the very talented Jan Wolfe, for assisting me with this blog entry.)

Once again, the news media faces a “prior restraint against publication” imposed by the courts, yet few in that industry or elsewhere seem to understand the nature and impact of prior restraints and the true threat they pose. Contrary to common belief, prior restraints pose a more serious threat to Sixth Amendment rights (i.e., the right to a jury trial in a criminal cases) than to First Amendment press freedoms. Here’s why.

First, a basic definition: a prior restraint is a court order prohibiting a news reporter or media organization from reporting a particular story or publishing a certain document and, in the process, disclosing information deemed private or classified. In a typical case, publication of the information is prohibited by law (classified national security information, for example, may be protected from disclosure by the espionage laws); in theory, reporters and editors understand that, if they decide to publish, they risk breaking the law. But when the news organization accepts the risk and seeks to publish anyway–either because it believes the statute does not prevent it from publishing the information, or because it believes it has a duty to indulge the public’s right to know–some party may decide to seek a court order preventing publication. That party is often the government, or in some instances a private party, such as the fireman’s union in the imbroglio I describe below.

If the court issues the order, the court essentially says that it has (1) reviewed the statute, (2) reviewed the document about to be published, and (3) decided that, not only is the document covered by the statute, but also that publication would have a seriously deleterious effect on a vital, indeed overriding, public interest. Only if these conditions are met would the court be logically justified in issuing an injunction preventing the news organization from publishing or broadcasting the information.

This does not mean that, in the absence of a prior restraint order issued by the court, the news organization would be free of risk in publishing the information in dispute; instead, publishing it could still constitute a crime and expose the news organization, editors, and reporters to indictment, followed by a criminal jury trial. But the media, in the absence of a prior restraint injunction, would not be in violation of a judge’s order and hence would not be committing the additional crime of “contempt of court” by going ahead and publishing the information. It would be up to a prosecutor to decide whether to indict the media. The judge would have no control over whether a criminal charge is brought, and a jury, not a judge, would sit in judgment of the media at such a trial.

I am always suspicious about gag orders and prior restraints, since there is a great incentive for those with something to hide to use them to silence potentially embarrassing press coverage. In the latest installment of this farcical anti-free-speech campaign, Suffolk Superior Court Judge Merita Hopkins prohibited local television Channel 7–NBC affiliate WHDH-TV–from reporting the autopsy reports concerning two Boston firemen who died in an August blaze at a Chinese restaurant. According to the story recounted in The Boston Globe, and two reports in the Boston Herald, there are indications that one was drunk while the other tested positive for cocaine.

Prior restraints on publications–like the one Judge Hopkins ordered–are constitutional only when imposed for the most urgent of reasons: where there is solid evidence that publication would have an immediate and catastrophic affect on national security, for example. (There are also some limited circumstances where such injunctions are allowed, such as where a copyright violation is about to occur, since the copyright protection is, like the First Amendment, written into the Constitution.) The law on prior restraints is ably set out by a media writer and blogger who understands these things better than most judges and lawyers, Dan Kennedy.

But no media analysts have identified the most pressing concern about Judge Hopkins’ unconstitutional and ill-considered prior restraint injunction, which was properly and predictably overturned by an Appeals Court judge within hours. This abusive use of judicial power would have deprived the news media not only of First Amendment protection, but also of the right to a jury trial as guaranteed by the Sixth Amendment.

A newspaper editor, television producer, or reporter who possesses a document that is not supposed to be publicly available but yet has obtained it through lawful means (in other words, the newspaper was given it by a whistle-blower–who himself might have committed a crime by obtaining and disseminating it–rather than having stolen it) has committed no crime. If the document was clearly and explicitly illegal to publish, however, the newspaper or television station can presumably be criminally charged for violation of a statute prohibiting the publication of medical records, including autopsy reports. That would be done after the fact of publication or airing, when the district attorney could decide whether the action warranted a criminal prosecution. As a result, the news outlet, editor, or reporter would be entitled to a jury trial for the alleged crime. It would be up to the people, as represented by the jury, to decide whether the invasion of privacy outweighed the public's right to know and that the publication therefore merited criminal sanctions. The trial judge would instruct the jury as to the meaning of the statute, but the ultimate verdict would be the jury's.

As John Ellement reports in The Boston Globe, the District Attorney believes that this particular statute does not carry criminal penalties for violators. Accordingly, the news station and other media outlets that have published the autopsy information appear to be in the clear, insofar as a criminal charge is concerned. But assuming for the sake of argument that the district attorney were to bring charges, it is unlikely that 12 out of 12 jurors could be convinced to convict a reporter or editor for publishing a report that is so clearly in the public interest. Since a conviction would require the jury to unanimously agree on a guilty finding, the state would be unlikely to obtain a conviction no matter how many times it tried the case to a jury. Chances are there would be a "hung jury"–a jury that was unable to arrive at a unanimous verdict–nearly every time such a case were tried. And as soon as a jury was unanimous in acquitting, then the "double jeopardy" provision of the Constitution would kick in, and the case could not again be re-tried. In effect, there would likely be "jury nullification" of a silly law that serves to bury an autopsy report showing that firefighters may have died because they were intoxicated while on duty. That sort of information is self-evidently and unequivocally within the public’s right to know, and any law shielding its publication is clearly against the public interest and would not be sympathetically viewed by a jury.

This is how the criminal justice system should normally work. Judge Hopkins, however, circumvented this route, issuing an injunction against broadcast. So if WHDH disobeyed her and published the report, Judge Hopkins could hold the station (and the relevant producer and reporter) in criminal contempt. Under the law of criminal contempt, as enunciated by the United States Supreme Court, a defendant may be tried by a judge, instead of a jury, for criminal contempt provided that the judge imposes a sentence of no more than six months. (See, for example, the Supreme Court cases Lewis v. United States (1996), Duncan v. Louisiana (1968), and Blanton v. North Las Vegas (1989).)

Thus, by proceeding via a prior restraint order, Judge Hopkins made an end-run around the media’s right to a jury trial for its publication of a document that might violate the statute but the publication of which is clearly in the public interest. Judges tend to punish perceived violations of the dignity and power of courts, while citizens tend to focus instead on the public interest. (It’s an interesting aspect not only of separation of powers concepts, but also of human nature.)

A newspaper should have the option to decide, as a matter of civil disobedience, to publish a document that the law deems private, if the newspaper believes that publication is in the public interest and is willing to take the risk. The newspaper and its staffers would then have a right to a jury trial in the event they are charged criminally with violation of the statute. It is an improper violation of the media’s right to a jury trial for a judge to impose a prior restraint in order to usurp the power to convict the reporters and editors, and then to sentence them to up to six months in prison without a jury’s playing any role whatsoever.

Prior restraint injunctions, in other words, are not only an end-run around the First Amendment’s free press provision, but around the Sixth Amendment’s right to a jury trial as well. The profound decision to punish the news media for blowing the whistle on some story or document that the government would rather keep the people from learning about, should reside with the public whose interests are, ultimately, the ones at stake. History has shown that juries are far more reliable in making such judgments in the public interest than are prosecutors or judges–or self-interested public sector unions, for that matter. It is time to abolish the prior restraint injunction in all cases except the most obvious and dangerous national security instances.

The best example of an appropriate exception to the legal presumption against prior restraints was set forth by the Supreme Court in the 1931 case of Near v. Minnesota. As I recount in my book The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999), J. M. Near and his cohorts published a newspaper, the Saturday Press, which in an ongoing series charged that various political and law enforcement officials and power brokers in Minneapolis were part of a conspiracy to protect, rather than to investigate and prosecute, a Jewish racketeer. The state charged that the allegations were “malicious, scandalous and defamatory,” and it sought to “perpetually” stop the publication of future issues of the paper. Minnesota sought this result by enforcement of a state statute that established a procedure to prohibit, as a “public nuisance,” the publication of a “malicious, scandalous and defamatory newspaper, magazine or other periodical.”

The Supreme Court in Near established an almost insuperable obstacle to the issuance of prior injunctions against publication. It provided an example of a situation that might warrant a prior restraint: “in time of war a government might prevent actual obstruction of its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” This came to be called the “troop ship exception” to the rule against prior restraints.

Judge Hopkins apparently did not understand that a television news disclosure that two firefighters might have died because they were under the influence (one of alcohol, the other of cocaine), while on duty at the site of a raging fire, does not fall within the “troop ship exception” to the heavy constitutional presumption against prior restraints. Judge Hopkins, perhaps not trusting a jury to see it her way, decided to short circuit the station’s right to have a jury decide the question, by issuing a prior restraint. In the event the station decided to violate Judge Hopkins’ order, she could have imposed up to a six-month jail sentence for “contempt of court” without ever submitting the criminal contempt charge to a jury. Fortunately, the Appeals Court judge vacated Judge Hopkins’ order, thus protecting not only of the people’s right to know, but the station’s right to have a jury rather than a judge decide the ultimate question of guilt or innocence, were the district attorney to prosecute the station for violating a statute classifying autopsy reports as private medical records.

Will Judge Hopkins now be sent for remedial education in her duties and obligations to defend and protect the Constitution? Probably not. Being a judge, it seems, means never having to say you’re sorry.

(James F. Tierney assisted in researching and preparing this piece. His expert help is gratefully acknowledged.)

But six years after 9/11, it may be time to start questioning our reflexive and impulsive tendencies to prioritize the illusion of security above all else, including liberty and even ordinary common sense (or what the shrinks call “reality testing”). The homeland security industry has constructed the mind-set that we are all at risk of dying in a terrorist attack. (Of course it’s true that we could all die in some catastrophe, natural or man-made, but the question is how far we have to go in wrecking our society in order to save it.) To serve that end, it deploys high-profile but inefficient and freedom-crippling policies that reinforce the sense of panic and, as one academic argues, helps bolster security-fetish politicians’ chances for re-election.

I don’t know whether the ineffective but highly-visible policies should make me laugh or cry. Do the feds seriously consider harassment of children "carrying remote-control toys" to be a necessary element of homeland security? To be sure, some people remain serious in their desires to commit acts of terrorism and other crimes. But the tendency to overhype irrelevant but visible 'threats,' at the expense of less visible and more onerous threats, ultimately does more harm than good. But when would-be travelers go out of their way to make clear that it’s a joke (or sarcasm), one would think that security personnel would stop wasting their time, taxpayers’ money, and travelers’ patience by pretending, like Chicken Little, that the sky is falling.

All this comes up because on Monday, an Ethiopian man was arraigned for telling a Logan Airport–surprise, surprise–check-in agent that he intended to blow up an airplane. When twenty-seven year old Ermiyas Asfaw was confronted about stickers on his luggage marked Dubai, United Arab Emirates, he joked that he was an al-Qaeda member. Anyone who believed him, of course, would be just a hair shy of being committable.

Like in the case of Star Simpson, it appears that Logan security has not been properly trained in distinguishing between real and faux threats. As I told a Boston Herald reporter in connection with that case, why would a terrorist proudly display on the outside of her sweatshirt the circuit board of the bomb she was carrying? In this case, would a real al-Qaeda member be likely to admit–indeed, boast–to a check-in agent that he is a terrorist, only to walk away laughing? Or would he be more likely to be as discreet and ordinary as possible in order to actually carry out his goals? Should we not insist on some common sense on the part of those entrusted with our security?

Given the instinctive reaction to anything related to terrorism in airports, Asfaw was irresponsible in joking about being a terrorist, and certainly ill-advised. But the behavior surely should not reach the level of the criminal. That it was a sarcastic joke is evidenced by his behavior after he said it, where he walked away laughing and proceeded to attempt to get on his flight before being intercepted by police.

Even worse is that, as a result of his joke to the ticket agent, Asfaw was charged with making a bomb threat. There are, of course, serious free speech implications of laws prohibiting merely talking about bombs in a jocular manner in airports—rooted perhaps in fears that ordinary citizens will be as gullible as airport security personnel and that pandemonium might erupt if people heard such off-hand remarks about bombs. But there is also a considerable problem with the poor judgment exhibited by the professionals who are tasked with protecting the public, when they seem not to be able to distinguish an obvious joke from the real thing.

The proof of the pudding is in the eating; the test of whether airport personnel are smoking too much weed will come if and when any of these cases get to a jury. My experience tells me that it will be next-to-impossible to get any Massachusetts jury to agree unanimously that either the MIT performance artist or the sarcastic Ethiopian jokester could reasonably be perceived as a terrorist. Of course, when the Homeland Security types begin to recognize that the general public does not buy all of this “national security” hype and overzeal, they may forego trial altogether, in which case maybe jokesters like Asfaw will, in the future, find themselves not facing a judge in a Boston court, but rather the wide Caribbean Sea on a tarmac at Guantanamo. If Homeland Security can’t get them in the real legal system, maybe they’ll try that parallel system that our government has created.