Flashpoints, free speech, and the lawDeanna Isaacson May 25, 2022 at 2:00 pm

Last week, amid the usual tsunami of grim news about inflation, mass shootings, pandemic, and war, came word that the New York Court of Appeals is considering whether the Bronx Zoo is violating the rights of Happy, an Asian elephant who’s lived there for more than four decades, by confining her to a portion of a one-acre exhibit.

The Nonhuman Rights Project, which is representing Happy, argues that she wants to make her own decisions about things like where to go and what to do, and that she is being illegally held. They’re seeking her release (to a sanctuary) through a habeas corpus proceeding. Habeas corpus is a procedure that allows “persons” to challenge detainment. The first thing the court will have to decide is whether Happy—all 5,800 pounds of her—qualifies as a person.

Meanwhile, in the sordid and conveniently livestreamed trainwreck of a defamation suit that Johnny Depp is waging against his ex-wife Amber Heard, her lawyers are arguing that the Washington Post op-ed she wrote about being a victim of domestic abuse is free speech, protected under the First Amendment.    

The First Amendment, ratified 231 years ago as part of the original Bill of Rights, is responsible for some of our most dearly held freedoms. It’s also pretty concise. Here it is, in its entirety:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.”

An important point to remember about it is that it only applies to actions of the government—not those of private individuals or privately-owned businesses. This can be a little confusing. Like how then does it apply to the Depp/Heard severed-finger-bottle-rape-poop-in-the-bed thing? As it happened, PEN America, the venerable national literary organization, was in town last week at the American Writers Museum, launching a yearlong touring series of discussions on this very topic: “Flashpoints: Free Speech in American History, Culture, and Society.”

The PEN panel was moderated by Northwestern University professor Brett Gadsden and included University of Chicago Law School professor and First Amendment expert Geoffrey R. Stone, who got a lesson on speech limits from his own students in 2019 that ended with him vowing to never again illustrate the fighting words doctrine by telling a story that employed the N-word. (“This is not about censorship, or about anybody telling me what to do or not to do,” Stone told Inside Higher Ed then. “This is something on which students have enlightened me.”)

At the panel, Stone noted that the First Amendment was around for 150 years before it got any attention from the Supreme Court. And that only happened because President Woodrow Wilson, who’d won election by promising to stay out of World War I, did an about-face and entered the war, and then wanted to suppress opposition to it. Congress cooperated by passing the Espionage Act of 1917, which, Stone said, “made it a crime for any person to criticize the government, the war, the draft, or the military in a way that would potentially undermine support for the war.”

It was a very broad broom.

Convictions under the Espionage Act brought the initial First Amendment cases to the Supreme Court, and the first few (including the conviction of Socialist Party leader and former presidential candidate Eugene Debs), were upheld unanimously. But, after a summer recess that allowed time to chew it over, two legendary members of the court, Oliver Wendell Holmes and Louis Brandeis, returned with changed positions. They had become convinced that freedom of speech is fundamental to American democracy and that people should have the ability to criticize the government unless “that criticism created a clear and present danger of grave harm to the nation,” Stone said.

From then on Holmes and Brandeis dissented on all Espionage Act convictions. It took until the 1960s for the rest of the court to follow them, but since then, Stone said, “the court has never upheld the conviction of any individual for engaging in speech on the theory that that speech might cause others to engage in illegal conduct.”

We’re at a turning point now, however, with the most conservative court we’ve seen in a century, Stone said. “Given the makeup of this court, and the length of time they’re likely to serve, we can expect revisions in the interpretation of women’s rights, individual rights, sexual freedom, and the definition of obscenity that will transform this nation to much more of what it was like in the 1950s than what it is like today.”

“One thing we can do is pass state laws that recognize these rights,” Stone said. But if, say, the court decided to extend constitutional rights to the unborn, even state laws could be limited protection. What they would do is buy time.  

So what about Johnny Depp and Happy? In a post-panel followup Stone said he’s not familiar with these cases but, “defamation is, by definition, a free speech issue. That’s because the government makes the rules that determine whether someone can sue, and the First Amendment determines whether those rules are constitutional or not.” Happy, however, might be out of luck: “If they’re basically claiming that Happy has constitutional rights, that’s a nonstarter.”

“Animals do not have constitutional rights.”

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