Three First Amendment Stories

There are just too many things to write about right now.  Curmie doesn’t promise FOC Steve that a piece on the bombing of those Venezuelan boats will happen, but he does intend to get to work on it soon, and that Politico article about the Young Republicans group chat—laden with about every variety of hatred, from misogyny to racism to antisemitism to homophobia and more—seems worthy of comment.

But Curmie can, as is his wont, bundle three different stories that emerged roughly simultaneously under the general heading of Censorial Asshatitude.  One of them is a little more complicated than the other two, which is to say there initially seemed to have been a little mitigation involved... key words: “initially,” “seemed,” and “a little.”  Let’s start there.

Curmie once thought about pursuing his doctorate at Indiana University, and even visited the campus.  He has a lot of friends who got their doctorates there, including one of his best friends from college, two from his first teaching gig, and two from a professional organization.  Oh, and another dear friend taught there for a decade.  Curmie is not by nature a hugger, but all six of these folks get a hug instead of a handshake if he ever sees them in person again.  So whereas he has no direct link to the university, he cares more about what happens there than he might for a similar university elsewhere.

Anyway, IU is trying to move their student newspaper, the Indiana Daily Student, online.  There are legitimate reasons for this, not least of them being a recognition of reality.  Curmie hasn’t read a print newspaper in years, and suspects that you might not have done so either, Gentle Reader.  All the signs suggest that print journalism will be little more than a memory by the time today’s undergraduates are ready to move into leadership positions, if not before.  In a discipline that, unlike the traditional liberal arts, really is intended to be pre-professional, gearing the operation towards an emerging future rather than a sentimentalized past makes a fair amount of sense.

But to say the administration was ham-handed in their execution would be a rather egregious understatement.  The transition to online, occasioned in part by financial concerns, has already begun, as what was once a daily paper had been printed only sporadically of late.  But as the staff was constructing an edition to be published this week, they were told… get this… not to publish any news stories, but to concentrate solely on Homecoming-related material.  A newspaper being forbidden from publishing news is, shall we say, headline-worthy.

The school’s Director of Student Media, Jim Rodenbush, objected to the move, citing the IDS’s charter: “final editorial responsibility for all content rests with the chief student editors or leaders.”  He may or may not have muttered the word “censorship” in the process.  He was, of course, fired for his efforts, because honoring agreements is so passé.  And when the student staff asked why, their entire edition was shut down.

Still, it seemed like the university had at least a whiff of a case: they pay the bills, after all.  But then the other shoe dropped.  The Federation for Individual Rights and Expression released a statement (well, technically a blog piece, but if it shows up on the website, someone in authority approved it) explaining that the real problem was that the student editors thought it worthy of publication that the university ranked 255^th out of the 257 colleges and universities included in the latest of FIRE’s free speech rankings.

Apparently incapable of appreciating the irony of violating the 1^st Amendment rights of a newspaper that had <checks notes> documented cases of violating 1^st Amendment rights, the university administration, in the person of Dean David E. Tolchinsky, made things much, much, worse, both for the IDS and especially for the reputation of the university.  It is unclear whether Tolchinsky is a repressive jackass or simply an amoral toady who decided it was better to fire Rodenbush rather than risk losing his own, no doubt lucrative, gig.  It doesn’t matter.  He has done irreparable harm to both Indiana’s media program and the university as a whole.  He should be shit-canned.  Full stop.

Let’s stick with FIRE and a university, or in this case, a collection of universities.  This week, a federal judge David Alan Ezra issued a preliminary injunction against implementing Texas Senate Bill 2972, which just might be the stupidest piece of legislation ever passed in this state, and that is a very high hurdle, indeed.  It is nothing more or less than an attack on freedom of speech on all public university campuses in the state. 

You probably know, Gentle Reader, that Curmie is now retired from a public university in Texas, so he’s got a stake in this one even if only indirectly.  The bill expressively defines “expressive activity” as “any speech or expressive conduct protected by the First Amendment…” and includes “assemblies, protests, speeches, the distribution of written material, the carrying of signs, and the circulation of petitions.”  It then proceeds to “prohibit” “expressive activities on campus between the hours of 10:00 p.m. and 8:00 a.m.”  Inviting speakers to campus or using any form of sound amplification or percussive instruments during the last two weeks of a semester are also verboten.  (There goes that orchestra concert…)

Most of the rest of the bill suggests, legitimately, that reasonable time, place, and manner restrictions are appropriate, and that “disrupting the functioning of the institution” cannot be countenanced.  Not so, however, for the items mentioned in Curmie’s previous paragraph.  Those activities are outlawed whether or not they cause even the slightest ripple of disruption.

Curmie has reminded his readers repeatedly that he is not a lawyer… but the folks at FIRE are, and they point out that the bill would allow, even demand, that universties “punish everything from wearing a T-shirt with a message, to writing an op-ed, to playing music — even worship.”  FIRE Senior Attorney Adam Steinbaugh argues that “Texas’ law is so overbroad that any public university student chatting in the dorms past 10 p.m. would have been in violation.”  FIRE’s clients in bringing the suit to challenge the law range from the Fellowship of Christian University Students (FOCUS) at UT-Dallas to the Texas Society of Unconventional Drummers at UT-Austin.

Actually interfering with the functioning of the university, even to the extent of making too much noise in the dorm when others are trying to study or sleep, is one thing, but this stuff is ridiculous.  More significantly, it invites selective enforcement.  One can easily imagine that campus police would agree that wearing a MAGA cap on the daily 7:00 a.m. jog should be allowed, but that a “Black Lives Matter” shirt shouldn’t be (or vice versa).  Curmie directed more than one show that didn’t end before 10:00.  Should the last 20 minutes of Carlo Goldoni’s 1746 comedy The Servant of Two Masters be suppressed?  It’s certainly expressive speech, and you could call the audience an “assembly.”

Fact is, we could go on forever listing even a portion of the perfectly reasonable and unobtrusive expression that the bill would prohibit.  Let’s face it, whoever wrote this nonsense, or even voted for it, would come in third in a battle of wits with a tire iron and a dead armadillo.

Certainly it’s a good thing that Judge Ezra blocked the law from going into effect, noting that “The First Amendment does not have a bedtime of 10:00 p.m.”  (Curmie loves that line.)  But whereas an injunction is welcome, that doesn’t mean that the law has actually been overturned.  That is, of course, the consummation devoutly to be wished.  In a perfect world, of course, the court costs involved would be borne not by the state treasury, but shared by every idiot legislator who voted for this manifestly unconstitutional tripe.

But if SB2972 is notable primarily for its stupidity, Pete Hegseth’s latest attempt at controlling press coverage of the Pentagon is considerably more troubling.  The policy would require prior approval from the Pentagon before publishing anything related to their activity, even unclassified information.  As is a running theme through this essay, Curmie turns to FIRE for their take. 

They note an attempt by Trumpian acolytes to frame this censorship as protecting national security.  Hegseth writes: “There is a critical distinction between lawfully requesting information from the government and actively soliciting or encouraging government employees to break the law. The First Amendment does not permit journalists to solicit government employees to violate the law by providing confidential government information.”

The only problem with that statement is: that’s bullshit.  Actually, the First Amendment does permit journalists to do that, as FIRE’s Adam Goldstein writes, “The First Amendment has limited enumerated exceptions, such as speech that is defamatory, speech that would inspire imminent lawless action, and obscenity. ‘Asking a question where the answer might be classified’ isn’t on the list, and reporting on national security matters is protected speech.”

It’s a truism among lawyers (at least the TV versions of lawyers) that you should never ask a question of a witness in a trial unless you already know the answer.  Reporters work differently: they’re trying to ascertain the facts, not to advance a client’s interests.  Here’s Goldstein again: “While a journalist might reasonably infer that the United States is engaging in some activity that falls into the sensitive or classified categories, they don’t have any power to determine what answer they actually receive.”

In other words, perhaps Hegseth should concentrate on finding Pentagon staffers who will STFU if it’s appropriate to do so.  Faced with a question that might lead to divulging classified information, an employee might reasonably respond “no comment” or “I’m not in a position to answer that question.”  Lying shouldn’t be an option; neither should revealing classified, or perhaps even sensitive, information.  That doesn’t seem too difficult to Curmie.  Does it to you, Gentle Reader?

As Goldstein writes, the new policy shifts the blame to the press if some staffer says something they shouldn’t.  It also turns the Pentagon into a propaganda machine, cheerfully censoring anything that might be embarrassing.  Not “classified.”  Not “sensitive.”  Embarrassing.

As is well known by now, reporters from every news agency except OANN (and anyone who gets their news there is by definition beyond hope) turned in their badges and, as seen in the photo above, walked out en masse rather than be subject to absurd and unconstitutional restrictions.  There is, of course, a desperate attempt by the Trumpian minions to frame this as a partisan issue.  Nope.  True, the usual suspects—the AP, CNN, the New York Times, etc.—all refused to submit to the new rules. 

But so did Fox News, Newsmax, the Wall Street Journal, Military Times, The Daily Caller, the Washington Examiner, and the Washington Times.  That’s a pretty healthy list of right-leaning outlets that want their reporters to be journalists rather than propagandists.  Curmie respects these agencies for their integrity on this issue, even if on few others.  It’s harder to do the right thing when “your side” expects you to do otherwise.  So, kudos to them.

None of these three stories has run its course.  IU may or may not find its way back to obeying the Constitution.  A preliminary injunction is not the same as declaring a law unconstitutional.  The elaborate game of chicken at the Pentagon is likely to go on for a while.  These cases, like so many in other areas, show signs of authoritarianism but also signs of resistance, integrity, and hope.  We’ll lose some skirmishes along the way, no doubt.  But these are battles worth fighting, and Curmie (not known for his naïveté) cannot but believe we’ll ultimately emerge battered but triumphant.  We’re the ones who really want to make America great again.  Let’s do that.