At almost 85 years old, the Library Bill of Rights is seeing another round of attacks.

The American Library Association (ALA)—founded in 1876 to professionalize and improve library services across the country—first published the statement in 1939 in response to the news of Nazi book burning and the suppression of information overseas. It asserted that library resources should be provided for the “interest, information, and enlightenment of all people,” and that libraries themselves should challenge censorship and “partisan disapproval” at every turn.

American librarians championed this code during the buildup and entry into World War II. But after the war, librarians went from fighting to defend these principles abroad to fighting to defend these same principles on the home front as they worked to stop book bans and book burnings in their very own libraries during the Cold War.

Now, as librarians and other educators find themselves once more tasked to fight for the public’s right to intellectual freedom, this period of history reminds us that they’ve long been on the front lines of the conflict between censorship and free speech in the U.S., a legacy that dates back to when the first public libraries were established.

The nation’s earliest libraries had high hopes for enlightenment that often fell woefully short. They were subscription-based, meaning that only those who could afford them were allowed to join. Similarly, college libraries, like the one at Harvard, were just for students and faculty. Only as immigration and the population soared in the 19th century did government-funded libraries that served working-class Americans begin to open. Though these libraries frequently held foreign newspapers and books so that patrons could check the news in their home countries, their librarians also pushed assimilation efforts to Americanize new immigrants.

The U.S. government participated in its own acts of censorship during this time. The Comstock Act of 1873, meant to curb the nascent movement of women’s reproductive healthcare, affected both the publishing industry and libraries. The New York Society for the Suppression of Vice, founded by Anthony Comstock and his supporters, was particularly hard on libraries, forcing New York public libraries to withdraw classics like James Joyce’s Ulysses and D.H. Lawrence’s Lady Chatterley’s Lover from their collections. All the while, Black patrons often found themselves without library access, especially in the Jim Crow South.

In the 20th century, censorship continued with German, Italian, and even Irish works and newspapers banned and locked down at the urging of both the government and concerned citizens. At the same time, amid the growing threat of fascism abroad, U.S. libraries at this time emerged as a great symbol of democracy. In addition to the passage of the Library Bill of Rights, during the lead-up to World War II, librarians publicly championed free speech in other ways—soliciting book donations, buying war bonds, and even participating in an on-the-ground effort to save materials from war-torn Europe.

Then came the postwar whiplash as public libraries got pulled into Senator Joseph R. McCarthy’s coercive campaign to fight anything he deemed “communist” and “anti-American.” As part of his Cold War witch hunt, McCarthy opened up an investigation into Voice of America, the U.S. foreign-language broadcasting company, alleging it had capitulated to communism. He attacked the VOA’s overseas libraries, which were meant to represent American ideals and information abroad, and called for a list of authors that he had condemned as communists to be stripped from the shelves. Any librarians who refused faced inquiries into their own personal lives and histories.

In response, librarians convened a meeting with publishers in May of 1953 to discuss how they could defend libraries and authors against censorship and censure. Among those present: the Librarian of Congress, Luther Evans, who had just been named the head of UNESCO; Ralph McGill, editor of the Atlanta Constitution; Cass Canfield, chairman of Harper Brothers Publishing; and Bernard Berelson, a representative of the Ford Foundation.

During the meeting, this influential group ideated the Freedom to Read statement. Building from the Library Bill of Rights, the Freedom to Read statement was meant to send a clear message: that librarians remained defenders of democracy, and that they would not back down in the face of controversy and censorship. The meeting bolstered librarians’ coalition of support and affirmed their united front against McCarthy and his acolytes, who’d already begun attacking local schools and public libraries in the continental U.S. for housing “dangerous” and/or “inappropriate” material.

Among the Americans who took up McCarthy’s cause was a San Antonio housewife named Myrtle G. Hance. A member of the Minute Women of the U.S.A., whose stated mission was to remove “supporters and sympathizers” of communism from schools, Hance took it upon herself that same year—1953—to comb through the San Antonio Public Library’s shelves, where she “uncovered” 500 books containing communist materials. In response, San Antonio mayor Jack White (whose wife was also a Minute Woman), demanded that those books be branded with a large red sticker, so that readers would know they were “dangerous.” Another city official went further—calling for the books Hance singled out to be burned.

It was the chief librarian of San Antonio who prevented this from happening. Julia Grothaus, who’d served in her position for two decades, argued that Americans could not understand, let alone fight, a thing if they did not know anything about it first. Local writers, journalists, and civic organizations rallied behind Grothaus’ position, as did the Public Library Board of Trustees, who would not rubberstamp the mayor’s call for her resignation. Despite Mayor White’s attempts at retaliation, Grothaus and her allies did not yield; the books in San Antonio would not be labeled and would not be burned.

What happened in San Antonio happened in other communities across the country, as organizations like the Minute Women stoked the public’s fears of communism. Librarians resisted in various ways to varying degrees of success. Then, on June 14, 1953, they received major support from President Eisenhower, who offered a highly publicized message bolstering free speech during his Dartmouth College commencement speech. Addressing the new graduates, the president told them, “Don’t join the book-burners… Don’t be afraid to go to your library and read every book.”

The press interpreted the president’s words to be a direct rebuff of McCarthy. The following day, McCarthy’s actions against the VOA’s overseas libraries made the front page of the New York Times when Secretary of State John Foster Dulles confirmed that 11 books abroad had been taken and destroyed. The ALA moved quickly to capitalize on the president’s support and the public’s attention. Shortly thereafter, the Freedom to Read Statement they’d come up with that May was signed off on by the ALA and the American Book Publishers Council and officially published. Still in effect today, it states that “the freedom to read is essential to our democracy.”

Seventy years later, the conflict over censorship and free speech continues to play out in libraries. 2023 is on trend to set the record for the highest number of attempted book bans since ALA began compiling data about censorship in libraries. That means it would break last year’s peak, in which there were 1,269 demands to censor over 2,500 library books. In the summer of 2022, lawmakers in Florida also passed HB 1467, which requires books to be approved by a media specialist trained by Florida’s Department of Education. Educators and librarians found in violation of the law could be charged with a third-degree felony. Other states, like Missouri and Utah, have since published similar laws that punish librarians for “explicit” content.

Librarians and other educators are fighting back against the assault on free speech. Earlier this year, the Florida Education Association (which includes librarians), along with the Florida Freedom to Read Project, filed suit against the Florida legislature to challenge its censorship agenda. And after conservative lawmakers in Arkansas proposed Act 372, which sought to “protect children from indoctrination” by allowing librarians to be brought up on criminal charges if they were found with items “harmful to minors,” the Central Arkansas Library System took the lead in filing a federal lawsuit to question its constitutionality. A judge agreed, and the act has been blocked—for now.

Libraries have always offered more than just books. At their center, they offer a community space with safety to explore identities, histories and cultures. As librarians past and present know, the loss of this intellectual freedom would be catastrophic to American culture and democracy. Which is why, over eight decades since the Freedom to Read Act was first passed, in 2021 the ALA put forward a new statement that condemned acts of censorship and intimidation, and promised to continue to defend patrons’ constitutional rights, and the freedom to speak, publish, and read. It ended with a direct reflection on the Freedom to Read Act, proving that the fight goes on.

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The post Legal Scholar Eugene Volokh appeared first on Zócalo Public Square.

Los Angeles Times editorial writer Carla Hall, who moderated the discussion, kicked it off with the words of University of Michigan legal scholar Catharine A. MacKinnon, who argues in The Free Speech Century that the First Amendment has increasingly moved from “a defense of the powerless” to “a weapon of the powerful.”

“What do you make of that?” Hall asked the panelists.

“The First Amendment protects the freedom of speech,” said UCLA School of Law professor Eugene Volokh. “It doesn’t protect the freedom of speech for the powerless. It doesn’t protect the freedom of speech for this group or that group. It protects the freedom of speech. We shouldn’t be surprised that anybody who speaks would make claims under the freedom of speech, and that the Supreme Court would protect those claims in many situations and reject them in some situations.”

But what, asked Hall, about Citizens United v. FEC, the court’s 2010 ruling that limiting political spending by corporations and individuals was a First Amendment violation?

The First Amendment cannot protect everybody except corporations and unions, Volokh said. Nodding to Hall’s employer, the Los Angeles Times, he added, “If you’re trying to suppress the speech of corporations, you’ll be suppressing the speech of newspapers and religious groups and others as well.”

Attorney Jean-Paul Jassy, who has litigated First Amendment cases in the United States Supreme Court and the California Supreme Court, agreed that the history around free speech can be as unsavory as it is triumphant. But as someone who regularly represents media companies, reporters, and nonprofits, he takes a position that freedom of speech is for everybody, even the company that owns the National Inquirer. In a case claiming the Inquirer used a “catch-and-kill” strategy to bury a story, Jassy defended the company. Citing Miami Herald Publishing Company v. Tornillo, Jassy made the argument companies can decide what they publish or do not publish. “This happens all the time, and if we start getting into that system where we examine what a newspaper or TV station publishes or puts on the air, it’s very dangerous,” said Jassy.

Turning to USC legal scholar Jody David Armour, Hall asked for his thoughts on the role of protest in free speech, citing a recent Los Angeles mayoral debate at Loyola Marymount University that activists disrupted.

They have the right to protest, said Armour, and just like in a private venue, security has the right to remove them. “Civil disobedience comes with a price tag,” he said. It’s a risk he’s taken himself, and one that can lead to change, he noted.

Battinto L. Batts Jr., dean of the ASU Cronkite School, agreed: “This thing we call democracy that we pine for is not a pretty process. It’s not a fine dining event; it’s a food fight sometimes.”

“Who are we to judge about whether that was a successful event or not because it wasn’t orderly in the fashion that we thought it would be going in?” Batts continued. “The protestors would say it was a successful event on their behalf because their perspectives were voiced. We can’t say, well, this group gets to speak, and when they get to speak, and how they get to speak, and they get to do it uncontested. That’s not freedom of speech. That’s control.”

To shut down protest speech would mean shutting down movements, said Armour. “I know there wouldn’t be a Black Lives [Matter] movement without robust freedom of speech.” After the killings of Mike Brown and Trayvon Martin, he saw Black Twitter and other Black social media take off. What if they had been shut down? “You had the movement of our generation. The generational upheaval a couple years ago was made possible by robust protection of First Amendment rights,” he said.

Before the night closed, the panelists also spoke about hot-button issues in the news today, from Sarah Palin’s libel lawsuit against The New York Times, which they don’t think the Supreme Court will hear, to Florida’s “Don’t Say Gay” bill that aims to prohibit “classroom discussion about sexual orientation or gender identity” in the state’s primary schools.

“If we’re talking about public schools, those are parts of the government,” said Volokh. Because they are agencies of the state, “it’s not a First Amendment violation because it’s all about state telling state employees what they can say as part of their state jobs.” However, were the state to tell that to private schools, that would be a clear First Amendment violation.

And, if you were wondering about what the famous free speech analogy about “yelling fire in a crowded theater” is all about, the panelists answered that as well before they wrapped. “Somebody told me that First Amendment lawyers and professor who teach it hate that phrase,” said Hall, who brought the question up.

Yes, said Jassy, in part because omitting the word “falsely” changes the meaning of the entire thing. But, there’s another subtlety to the saying, which originated in 1919 as well, he said: “It’s kind of an outdated catch phrase.” The underlying case that justice Oliver Wendell Holmes was writing it for, U.S. v. Schenck, was overturned in favor of a more modern test for immediate harm in the 1969 case Brandenberg v. Ohio. There the Supreme Court determined inflammatory speech is protected under the First Amendment unless that speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The post In America Talk Isn’t Cheap, It’s Free appeared first on Zócalo Public Square.

Because war is autocratic, he feared that free speech and other rights would be endangered. The President told Frank Cobb of the New York World: “Once lead this people into war, and they’ll forget there ever was such a thing as tolerance. To fight you must be brutal and ruthless, and the spirit of ruthless brutality will enter the very fiber of our national life, infecting congress, the courts, the policeman on the beat, the man in the street. . . . If there is any alternative, for God’s sake let’s take it!”

Wilson’s predictions became self-fulfilling prophecies. Once the United States joined the fight against the Kaiser, Congress and Wilson’s own administration implemented legislation and surveillance programs designed to keep America safe by ferreting out subversive activity and crushing dissent—especially in states like Wisconsin, which I have studied for many years. These steps curtailed meaningful debate about how best to fight the war at home and abroad. Tolerance did indeed go out the window.

Public discourse very quickly defined a new, clear dichotomy between the righteous people of the United States and the bestial German Hun, between us and “them.” As Congress assembled for Wilson’s war message, Texas Representative Joe Eagle told the Wisconsin State Journal: “The Kaiser is a cave man with murder in his heart . . . . He is bent on the unwavering course of brute force and pillage.” The language of peace, neutrality, and forbearance had almost immediately given way to the language of war: bellicose, dehumanizing, and designed to create a noble enterprise worthy of the sacrifice of thousands of lives. Through posters, pamphlets, and movies, the nation’s propaganda office, the Committee on Public Information, spread the message of the righteous war against the evil Hun.

Official and vigilante actions, as well as social pressure, made debate and dissent difficult—particularly in Wisconsin, where during World War I at least 38 percent of the state’s population had Germanic heritage (and thus was immediately suspect.) In Ashland, Wisconsin, the Loyal Knights of Liberty tarred and feathered at least four men they deemed disloyal. Letters sent to other individuals in the community made clear the importance of behaving as loyal Americans. In northeastern Wisconsin a bartender was heralded as a patriot for assaulting a patron who spoke ill of the army. The victim of this assault was referred to federal authorities.

Throughout the state, individuals who criticized the government or refused to buy war bonds could wake up to find their home painted yellow, or a sign posted labeling them as “slackers.” Hundreds of these and similar actions, which were reported faithfully in the local newspapers and to the federal Bureau of Investigation (precursor to the FBI,) made clear that comments critical of the war should be kept to oneself. To help find traitors, the Bureau of Investigation started the American Protective League, an organization of volunteers who spied and informed on their neighbors.

The Espionage Act of 1917 provided an ideal tool with which to attack disloyal speech. During the war, 90 people in Wisconsin were indicted for 183 violations of the Espionage Act. The most common infractions were praising Germany; criticizing the United States; calling the conflict a “rich man’s war”; criticizing Liberty Bonds, the Allies, charities, or food laws; obstructing military recruiting; insulting the flag or uniform; or praising a ship’s sinking.

Wisconsin U.S. Senator Robert M. LaFollette became a special target. He fought for rational wartime policies in keeping with his progressive vision for America. Throughout the war, he regularly voted for measures necessary to support the troops, but opposed conscription and financing the war on the backs of average Americans. Instead of deficit spending supported by selling war bonds, he favored taxing the corporations and the individuals who were getting rich on war production. The war made him an outcast among his Senate colleagues and the symbol of traitorous behavior on the home front.

In September 1917, the Associated Press misquoted LaFollette as saying that the United States “had no grievances” against Germany. Despite clear proof that he was misquoted, his Senate colleagues dragged LaFollette through 15 months of hearings under threat of expulsion. Only after the war ended did the Senators finally acknowledge that they were chasing a red herring. The war left Robert M. LaFollette exhausted, his reputation in tatters. His pursuit of positive reform during wartime made him anathema to “patriots.” But for those individuals in Wisconsin and nationally who found it difficult to speak out, LaFollette became a hero.

LaFollette escaped legal sanction, but Victor Berger, a founder of the Socialist Party of the United States, editor of the Milwaukee Leader newspaper and former congressman, became a prime government target, caught in the net of the Espionage Act. Immediately following the declaration of war by the United States, the Socialist Party called upon “workers of all countries to refuse support to their governments in their wars.” In Wisconsin, as in other states, socialists found their meetings disrupted, their speakers jailed, and supporters intimidated by local law enforcement and vigilante super patriots. One socialist leader was arrested for “seditious talking.” The Wisconsin State Senate expelled the German-born socialist Frank Raguse, who represented Milwaukee, for a negative remark about patriotism.

The chairman of the party in Kenosha was jailed shortly before he was scheduled to speak at a rally and was released after the rally was canceled. In the community of Theresa, 600 members of the Wisconsin Loyalty Legion prevented socialist Emil Seidel, former mayor of Milwaukee, from speaking at what they considered a pro-German meeting. In Sauk County, socialist journalist Oscar Ameringer was protected from loyalist “visitors” by farmers armed with pitchforks. Whether by indictment or intimidation, the result was the same: abrogation of free speech and stifling of policy debate.

As editor of the Milwaukee Leader, Berger tried to accomplish the near-impossible: remain true to socialism but avoid running afoul of the Espionage Act. Berger’s newspaper maintained its steady attack on capitalist war profiteering. He emphasized his opposition to the war, but he made a point never to advocate resistance or interference with the war effort. The strategy failed. In an attempt to destroy the newspaper, the Post Office Department restricted distribution of the Leader. In the spring of 1918, Berger was indicted under the Espionage Act based on five editorials he wrote for the Leader. In 1919 he was found guilty and sentenced to 20 years in prison. Two years later, an appellate court threw out his conviction due to biases exhibited by the judge during his trial.

Just as Woodrow Wilson feared, the war brought repression to those who voiced opposition to government policies—at just the time debate over those policies was needed most. Although real spies and saboteurs threatened the United States during the war, they were seldom homegrown and seldom members of Wisconsin’s large German-American community.

Governor Emanuel Philipp, a Republican, was an important voice against this repression. He believed in the loyalty and patriotism of the entire state regardless of ethnicity, and routinely told audiences: “There is nothing wrong with Wisconsin.” In his most strident denunciation of super patriots, Governor Philipp declared that the willingness to charge others with disloyalty “is a type of impudence that is indulged in by a class of self-asserted patriots who are the greatest menace to the country today, because they discourage what the country needs above all things during a crisis, and that is the hearty cooperation of all the people in support of the war.”

It is all too easy to limit free speech in wartime. Such limits threaten American democracy far more than the speech they target.

The post When the Great War Reached Wisconsin, Free Speech Was the First Casualty appeared first on Zócalo Public Square.

By now, the Kremlin’s methods are becoming familiar: infiltrating email and other electronic data in order to sway public opinion through embarrassing revelations against political candidates the Russians disfavor, as they did by releasing Democratic National Committee emails via Wikileaks in the 2016 US election; creating “fake news” and using social media to create negative press around those disfavored candidates; publicizing their own infiltration methods to create fear and confusion around the integrity of democratic processes; and pouring funds into the coffers of favored political candidates, laundered through disguised and unlikely intermediaries.

Macron’s landslide victory on Sunday indicates that Russia’s hack and dump, along with other methods, may have had less traction in a European environment than in the United States. But why? Since all of the strategies the Kremlin used in the U.S. case were trotted out in France, why were the Russians ultimately unable to make more headway in favor of Marine Le Pen, who, after all, was about as favored to win going into the run-off as Donald Trump a few weeks before the American election?

While we will no doubt learn more in the coming weeks and months, we should note the measures France takes to guard against disruptive foreign influences. We can only speculate about what factors contributed to Macron’s victory, but the different approaches to freedom of the press and speech between France and the United States highlights an existential crisis for well-off democracies in the Kremlin’s crosshairs: Should we attempt to protect the integrity of the public’s knowledge base by restricting the information it receives, or is it better to fight the corruption of public news sources with more news, and the degradation of facts with more facts, in the hope that the truth will eventually win out? If we are willing to restrict freedom in order to protect it, what measures should we take to prevent and contain the spread of such destabilizing cyber interference?

France’s mandatory election news blackout 36 hours prior to the opening of the polls—which bars candidates from making statements and media from reporting election data, including exit polls—may have been fortuitous for Macron: It coincidentally had the beneficial effect of avoiding dissemination of last-minute “revelations” with the potential to throw public opinion immediately prior to the election. Other French laws, such as limitations on campaign finance, may have made it difficult for the Russians to surreptitiously funnel money into French campaigns or to wield control over French candidates through financial leverage.

Both of these measures are currently unthinkable in the American First Amendment landscape: A mandatory news blackout, or restrictions on what the press can report, seems un-American, and might not stand up to a constitutional challenge in a federal court. And while candidates cannot accept contributions from foreign governments, the restrictions on political campaign financing are weak and easily circumvented in the United States. Americans are thus limited in the defensive tools we have at our disposal. Then because we cannot restrict harmful speech, we like to comfort ourselves with the thought that the antidote to fake press and distorted speech is more speech and an even freer press.

Is it not clear we have it right and the French, and other European nations that have been willing to tolerate greater restrictions on speech in the name of truth, have it wrong. We have always prided ourselves, for example, on the fact that no matter how abhorrent the sight of a publicly displayed swastika is for us, we have not taken the route of European countries and succumbed to a “ban” of that symbol. But perhaps some speech that is false, heinous, and deceitful is not worth protecting after all, and further that because of the national security threat allowing such speech poses, and the powerful multiplying effect of disseminating “fake news” through social media channels, it is time to consider whether taking measures to protect national security by limiting access to the gigantic megaphone of Facebook and Twitter is not long overdue. While the United States is unlikely to adopt the same measures instituted in France, perhaps it is time for Americans to consider whether some such controls are more likely to protect freedom of the press in the long run than allowing the open marketplace of ideas to threaten the very purpose our open access to information is mean to serve.

The lesson we must draw from the Kremlin’s recent attempts at destabilizing elections in Europe and the United States is that institutions that are dependent on the concept of popular sovereignty are sitting ducks for foreign intervention carried out by cyberattack, cyber influence, and cyber manipulation. Russian intelligence operatives are technologically sophisticated and they understand the vulnerability of any political system that revolves around popular political will.

With these techniques firmly developed, Russia’s aim to destabilize democratic institutions as significant as NATO or the European Union, as well as its attempts to bring totalitarian leaders to power who will manipulate public opinion in Russia’s favor, no longer seem outlandish or out of reach. The cockiness of Russian intelligence services puts nothing beyond bounds, including the fake “Cal-Exit” movement, a Russian-inspired phony grassroots movements whose founder and director is now seeking permanent asylum in Russia, as well as in the concocted display of support for the idea of giving Alaska back to the Kremlin.

But why are Russian covert operations suddenly such a force to be reckoned with? Why now? Partly, perhaps, the answer lies in Russia’s relatively low military and economic power in comparison to its ambitions at this point in history—a formula that has resulted in right-wing extremism at other critical junctures in history. But the other half is the high degree of dependence on technology, particularly informational technology, among Western democracies. Compared to other vulnerabilities, cyber communications are comparatively easy to infiltrate, and a society governed by exchange of electronic information is thus intrinsically and unalterably at risk for this type of attack.

Advanced democracies are particularly vulnerable to both forms of cyberattack—invasion of cyber communications and manipulation of public opinion through social media. Wealthy nations are paradoxically more vulnerable than less affluent ones, since they are more highly dependent on computerized infrastructure and communication. But the critical point is that the vulnerability of democratic nations is a function of the degree to which popular opinion impacts political outcomes, as well as their commitment to freedom of expression and unfettered speech that attends the concept of popular sovereignty. The vulnerability of advanced Western powers to cyberattack is the great equalizer of our day in modern conflict: Weaker countries can exploit the increased vulnerability of stronger countries in order to capture influence and power. And though the asymmetric aggressor is the Kremlin now, smaller countries or organizations are starting to catch on and will pose an increasing threat in the future.

The advent of cyber espionage has thereby transformed the nature of the threat to our national security in a more profound way than we have heretofore realized. Our worry about cyber interference for the past decade has mostly been focused on scenarios where a foreign nation attacks U.S. critical infrastructure by sending a computerized virus into our command and control centers, disabling our weapons, our power grid, our financial institutions, and indirectly potentially causing massive casualties. But just as we are coming to terms with the idea of “cyberwar,” it is becoming increasingly apparent that perhaps conceiving of the dangers of the cyber domain in terms of “attacks” has us turning a blind eye to the most significant threat to our security, which is to public trust and democracy itself.

Even if we effectively figure out how to guard against intrusive hacking on the part of foreign governments, there is a form of interference that works by direct manipulation of the people, namely covert operations designed to impact public opinion. Since the people are the true sovereign in a democracy, this kind of interference poses the greatest threat to the independence of democratic governance.

Such manipulations cannot be identified with the concept of “war,” even expanding that concept to include “cyberwar.” If the core of democratic governance can be threatened by the massive injection of “fake news” into legitimate informational conveyances such as Facebook, that suggests the need to prepare for a wholly different type of threat to our national security. Just as the advent of nuclear weapons and the possibility of mutually assured destruction between the United States and the Soviet Union required a wholesale revision of our diplomatic and military strategies, so the advent of the cyber age has catapulted us into a world in which national self-defense may require a transformation of our strategies for preserving democratic governance.

Balanced regulation of the cyber world, coupled with sophisticated intelligence and defense strategies, as well as educational efforts around cyber communications, are some of the options that urgently merit exploration. My Center at Penn Law will be holding an interdisciplinary meeting of high-level experts next fall to engage in precisely this kind of exploration.

Becoming more sophisticated about how we protect democratic institutions is not just desirable; it is a matter of survival. Without a more capacious view of the nature of the threats to popular sovereignty, democracy is likely to prove a short-lived experiment.

The post How Democracy, in the Kremlin’s Crosshairs, Can Fight Back appeared first on Zócalo Public Square.

But absent from discussion is a more fundamental question: Should we be using the notion of “free speech” to understand online speech at all?

As a general matter, it’s important not to confuse the First Amendment with the broader notion of free speech. Free speech policy is about the First Amendment kind of like how Cheez Whiz is about dairy products: They are related, but fundamentally different. The First Amendment protects “free speech” by saying that the government cannot (with certain important exceptions) prevent you from speaking. But private individuals or corporations, like Twitter, are not covered by the First Amendment and can curate or even censor speech without violating the law. In fact, some have argued that a platform’s right to keep up and take down what’s posted there is its own free speech right. Others have pointed out that not policing for abuse has a chilling effect on speech.

Twitter’s rigid adherence to being the so-called “free speech wing of the free speech party” seems reminiscent from a scene from the cult classic movie The Big Lebowski. Vietnam veteran Walter Sobchak (John Goodman) is sitting in a diner having a loud and animated conversation with his friend Jeff “The Dude” Lebowski (Jeff Bridges). A waitress gently asks Walter to lower his voice, because “this is a family restaurant,” a request that sends Walter into an apoplectic fit, screaming to the waitress that “the Supreme Court has roundly rejected prior restraint.”

“Walter, this isn’t a First Amendment issue,” The Dude says before walking out in frustration.

So if the First Amendment doesn’t constrain how speech is regulated by online platforms, what does? And what should?

One of the main forces governing speech online is the same thing that governs Walter’s speech in his local diner: societal norms. Norms are customary standards for behavior that are shared in a community. They can be self-enforced by a person’s desire to fit in with the group and conform, and they can also be externally enforced by the group when an individual violates the norm. Speaking at a lower volume in a public place is one kind of norm and shaming a person who yells loudly is a way that norm is enforced.

But while geographically bound communities have had thousands of years to evolve norms in real life, developing expectations for behavior on a global Internet is still in its nascent stages. This is especially true for online speech, says Nicole Wong, the former vice president and deputy general counsel at Google who helped establish YouTube’s public policies on speech. Over the last 20 years, says Wong, online speech has been undergoing a “norm setting process” that is different and much faster than previous responses to technological advances in publication platforms. “We’re still in the middle of how to think about the norms of behavior when what is considered ‘appropriate’ speech is constantly iterating,” says Wong. “If you layer the changes in technology over a broadening array of cultural, racial, national, global perspectives, it is hard to pin down principled, universal social norms, let alone create policy to reflect them.”

The task of creating policy for governing online speech falls not to governments, but to platforms. Individual platforms that host user’s content—like Twitter, Facebook, Tumblr, or YouTube—are each responsible for creating policies that reflect the online speech norms of the community the platform wants to create. Those policies most often take the form of a platform’s Terms of Service or community guidelines. For example, at YouTube, such policies prohibit the posting of pornography or sexually explicit content; at Facebook, community standards ban the posting of content that promotes self-injury or suicide.

Having those policies in place is important, but equally important is having a system in place that is nimble enough to allow for changes in that policy as norms evolve. And while platforms like Twitter have historically struggled in this capacity, others, like Facebook, have excelled. After the site’s policy on female nudity resulted in takedowns of women posting photos of their mastectomy scars, Facebook created an exception to its policy. When similar outcry erupted over the removal of breast-feeding photos, the policy changed again.

“What we do is informed by external conversations that we have,” explained Monika Bickert, Facebook’s head of global policy, in an April interview with the Verge. “Every day, we are in conversations with groups around the world. … So, while we are responsible for overseeing these policies and managing them, it is really a global conversation.” Facebook’s flexible responsiveness to the expectations of its community might be one reason its user base keeps growing while Twitter’s stagnates.

The underlying principle that Facebook has managed to grasp and put into motion is that digital speech is about much, much more than Twitter’s black and white notion of “free speech.” Online speech is not about simple speech absolutes. It’s about developing a global system of governance that can empower the most, while harming the least.

Talking about online speech in terms of “free speech” isn’t incorrect, it just misses so much of the picture. Or, more accurately, as The Dude might counsel, “You’re not wrong, Walter, you’re just an asshole.” The sooner we start thinking of online speech not only in terms of “free speech” but in terms of responsible and responsive platform governance, the sooner we create the internet we want.

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About two months ago, I was watching another U.S. election season when I learned that one of those bloggers had been sentenced to two years in prison in Egypt. Ahmed Naje was convicted of offending “public morals” and “spreading licentiousness” after an excerpt from his graphic novel was published in a local newspaper. The novel, which includes sexually explicit content, had already passed a censorship office in 2014. But an individual took Naje to court, alleging that the novel caused the plaintiff’s blood pressure to fall and his heart to race.

I first met Naje and his best friend, Mahmoud Salem, back in 2008, when I spent a few weeks in Cairo interviewing them along with six other Egyptian bloggers. Under a program funded by USAID and run out of the American University in Cairo, the eight men and women took courses on the U.S. electoral system and then traveled to the U.S. to cover the elections. I reported a story about them for The National, a news magazine based in Abu Dhabi, following the bloggers from Cairo to Austin and Lincoln, Nebraska.

They were experienced, savvy observers of their country and of international affairs. They had blogged about issues facing women, human rights abuses and the struggles of civil society. Wael Abbas, who reported on his blog about police brutality and voting irregularities, received awards from Human Rights Watch and the International Center for Journalists and was recognized by the BBC as one of the Most Influential People of the Year in 2006.

The rich blogging culture in Egypt has been instrumental not only in breaking news but also in pushing back against free speech restrictions. But bloggers often paid a heavy price for their outspokenness. Salem, who blogged anonymously on “Rantings of a Sandmonkey,” later revealed his identity when he went public with videos showing how he had been beaten by the police.

Back in 2008, I was curious about what they thought about the U.S. political process as Bush’s term came to an end and the U.S. elected its first African-American president—whose feel-good campaign focused on “hope” and “change.” The bloggers in the USAID program spoke to elected officials in the nation’s capital as well as to residents of trailer parks and contractors on wind farms. They debated evangelicals on street corners, canvassed in North Carolina and traveled to rallies. On their blogs, they wrote about the everyday as well as the profound.

On Election Day, Naje and Salem filmed a spoof at an Austin voting station, parodying their own system by acting like confused Luddites trying to make sense of the American democratic process. After asking whether the voting lines were really bread lines (bread lines were making headlines in Egypt) and noting that there was no judicial oversight at the voting station, they commented on how “safe” the elections felt. Where was the fighting, the arguing, they jokingly wondered. “These poor Americans,” Mahmoud says, laughing, as the scene ends.

But they were serious about elections, and the future of their country. Later that evening, Naje told me how his father, then a member of the Muslim Brotherhood, used to dress in his best suit on the morning of parliamentary elections and head down to the polling station. Naje would check up on him later, at his mother’s request, and find his father waiting patiently to vote. When he was not allowed, he would calmly await the arrival of news organizations. When thugs showed up to intimidate voters, he would find out how much they were being paid and offer them more money to leave once the cameras were gone. The whole dance had left Naje jaded.

Debating them that 2008 evening, I wanted the experience of a U.S. election to pierce such cynicism. George W. Bush’s talk of democracy had not made Egyptian democracy any better, but I thought Obama’s might. I wanted them to believe that an Obama victory was also a victory for the Middle East, for the Arab world, and most all, for them. Bush had invaded Iraq on a lie and helped dictators in the region oppress their populations. Bush supervised water boarding and Abu Ghraib; Bush opened Guantanamo. But Obama had promised to reverse it all.

Naje and Salem, however, were having none of my arguments. They were not Obama fans. They were skeptical.

A little over two years later, in January 2011, our different opinions were put to the test. It was Naje and Salem’s turn to demand “change” for their country. Millions took to the streets of Cairo to demand that then-President Hosni Mubarak step down. Young activists like Naje and Salem marched through Tahrir chanting slogans like, “The people want the fall of the regime,” and “Lift your head up high, you’re Egyptian.”

Meanwhile, the United States fumbled its response. The Obama administration was left calling Mubarak an “ally,” asking for “reform” and merely condemning any violence. For nearly a week, the American government struggled to reconfigure decades-old policy that supported dictatorships in return for stability.

The U.S. eventually supported the uprising, but in the Egyptian election that followed, too many candidates split the liberal vote, which provided an opening for the Muslim Brotherhood. The elected government of Mohamed Morsi was overthrown by the military. The possibility of an Islamist government opened the way for a new authoritarianism—and the rise of a new strongman, Abdel-Fattah al-Sisi. The Sisi government, in turn, crushed the Muslim Brotherhood, jailing most of its activists and making membership once again illegal. It has also imprisoned thousands of activists, journalists, and other people who continued to struggle for democratic change.

Which is why Naje is now locked away. A 2013 protest law has been used to clamp down on all forms of dissent. Last year, the Committee to Protect Journalists named Egypt as the second worst jailer of journalists worldwide, coming in just after China.

Meanwhile, the rise of the Islamic State in the political vacuum of war-torn Syria has made authoritarianism in Egypt more palpable to some. Dictators once again present a “them or us” argument. America has returned to a pre-revolutionary policy of propping up dictators in the name of stability.

Now, as I follow the current year’s election in the United States, I find myself wondering what Naje and Salem would say about the rise of Donald Trump’s authoritarianism. Or what Naje, the pro-union liberal, would think of Bernie Sanders’ revolutionary message. Would the two of them parody Trump? Or their own system again? Would they still have it in them to make fun of it all—after all that they’ve been through?

I’ve tried to reach out to Salem, but haven’t heard much from him. Which leaves me to reflect. Mostly, I think about how I just didn’t get it the last time. Naje and Salem were right. Obama was not good for them. Sanders, Clinton, or any of the other current candidates probably won’t be either. The feel-good “change” and “hope” campaigns of U.S. politicians are not directed at the Arab world—though many there desperately want those same things. Naje and Salem understood that. They know the U.S. and its history—what we’ve done in the Arab world and abroad for decades. They know the U.S. deposed democratically elected governments in Iran. They know the U.S. counts on dictatorships in “moderate” countries like Egypt and Saudi Arabia in exchange for political support and financial gains.

The sentiments that led to the Egyptian revolution of 2011 did not and will not disappear. The desire for more freedom and democratic change are still there.

But U.S. candidates won’t matter to Egyptians until the U.S. examines and re-evaluates policies in the Arab world. As The New York Times editorial about U.S.-Egypt relations put it a few weeks ago, it is time “to reassess whether an alliance that has long been considered a cornerstone of American national security policy is doing more harm than good.” But even this falls short. We must re-evaluate policies towards Saudi Arabia, Iran, and Egypt, and our hand in the Palestinian-Israeli conflict. (Sanders’s unprecedented comments in a recent debate might be a start.)
Decades of supporting dictatorial regimes in the Arab world will never result in peace and stability—not for them, and not for us.

So we must look at new options. When Naje and Salem hear a candidate really speaking about different foreign policy in the Middle East, they might have a different opinion of our politics—though they’ll still rightly be skeptical.

Until that point, Naje and hundreds of others remain in jail in Egypt. And we remain silent.

The post Why the Middle East Never Bought Obama’s Politics of Hope appeared first on Zócalo Public Square.

First, Breyer cited the late Justice Oliver Wendell Holmes’ old line about not having the right to cry fire in a crowded theater. Then, he asked some interesting questions: What does that proverbial theater look like in our hyperlinked world? And what is our era’s equivalent of being trampled to death in that theater? As if remembering himself, he quickly added that the answers to such questions get defined in actual cases before the Court, over time (as opposed to on Good Morning America).

At the time, Breyer’s TV provocation was roundly denounced by all right-minded free speech absolutists (a club I frequent). But I have found myself thinking about his questions in the aftermath of two major events involving the cross-border repercussions of speech: the horrible attack on satirical French magazine Charlie Hebdo, and the hacking of Sony Pictures before the release of the sophomoric comedy The Interview.

If I am being honest, these are times when I find myself rethinking my free speech absolutism. (Wait, am I really free to say that?!).

The crowded theater is a meme in First Amendment law that is often invoked out of context and has been overtaken by subsequent, more expansive free speech rulings. Another First Amendment meme is the “marketplace of ideas”: Us absolutists like to say that all speech should be permitted so that truths can prevail in that aforementioned ideas market. A third important meme—the current constitutional test for whether the state can restrict speech—is that of “imminent lawless action.” In a case involving hateful Ku Klux Klan speech in the 1960s, the Court held that the government can only forbid speech that is intended to trigger imminent lawless action, and is likely to do so.

All of this would be easier to judge if speech could be contained within tidy territorial boundaries. But the Paris tragedy and Sony hack beg not only the Breyer question of what constitutes the “crowded theater” in this age of instant global communication, but also a redefinition of the marketplace of ideas, and of “imminent lawless action.” Should the expanding boundaries of our so-called theater or marketplace make us rethink what’s acceptable speech, because more lawless action can be more imminent in a more interconnected world?

Of course, there is nothing new about taking offense across borders at the speech of others, and taking action to stifle it. Think of Catholics across Europe seeking to silence early Protestant propagandists in the German states during the Reformation, Stalin hunting down Trotsky in Mexico City to silence his chief critic, or the theocracy of Ayatollah Khomeini issuing a fatwa to silence Salman Rushdie after the publication of The Satanic Verses. More recently, Denmark found itself in the crosshairs after a Danish newspaper published cartoons featuring the Prophet in 2006. And the online release of the anti-Muslim film Innocence of Muslims contributed to anti-Western riots in the Middle East. Google ultimately determined that it was prudent to block access to the film on YouTube in some countries.

What’s different in today’s world, as these recent cases illustrate, is the immediacy of all speech, no matter where it takes place. Indeed, several legal scholars argued that perhaps we should rethink the permissibility of releasing such offensive material as the Innocence of Muslims, bound as it was to trigger a violent reaction. It’s getting harder to draw distinctions, at least in terms of real-world repercussions, between uploading something onto YouTube in the privacy of your home and broadcasting that same content halfway around the world. It’s a very large crowded theater we operate in.

Back in my absolutist First Amendment club, this is an unsettling line of reasoning. As Americans we are understandably wary of watering down our liberties (including the liberty to offend one another) to conform to some international norm. If we are all going to coexist in one global market or theater that transcends borders, our traditional attitude has been that others will just have to develop thicker skins and relish the same liberties we enjoy. Deal with it, in other words.

That is a fine sentiment, but it’s easier to uphold as an abstract principle than in a context where lives are at stake. It also doesn’t account for the most pressing threats to free speech rights. While we devote a great deal of attention to the few life-and-death cases that require balance protecting speech with preventing its consequences, we fail to acknowledge just how often mundane commercial interests are already influencing content and speech across borders.

This reality comes up mostly when we talk about China, where media outlets like Bloomberg and The Wall Street Journal have been accused of pulling punches in their news coverage so as to not undermine their own corporate interests. Internet companies, for their part, are constantly wrestling with the dilemma of either playing in China under Chinese rules, or being shut out.

Hollywood studios are also intensely aware that the majority of moviegoers are now outside the United States, and that China will soon be their most important single market. Major studio productions are keen to alter plots in ways that please Chinese and other foreign audiences. In the midst of production, the 2012 thriller Red Dawn saw its menacing villains go from being Chinese to being North Korean, lest the studio poke the eye of such an important market. Who cares about the North Koreans, and what could they ever do to us anyway?

Now we know.

Speech has consequences, and we’re already seeing how more and more entertainment content is being produced with overseas consequences (or appeal) in mind. Should news and humor follow suit? And how do we feel now that, for all intents and purposes, the de facto guarantors, regulators, and potential censors of our speech are private companies like Google?

It is no longer the preserve of Justice Breyer and his robed colleagues to decide when we can offend each other, or cry fire in a theater. Indeed, like it or not, the day may soon come when it is no longer solely up to Americans to make the call of what can be said, even here in America.

The post Will Globalization Kill Free Speech? appeared first on Zócalo Public Square.

This hashtag is part of my family’s effort—which includes calls to the State Department, the FBI, and the White House for help, a radio campaign, a Facebook page, press interviews, and protests—to bring home my oldest brother Alhagie Ceesay, an American citizen who was kidnapped a year ago in the Gambia, and his best friend, Ebou Jobe. They were apparently kidnapped by the government when they traveled back to the Gambia to invest in local businesses and create a computer school for children.

Americans may take the unfettered ability to complain for granted—here, we all have the right to post a negative review on Yelp or sign an online petition in our pajamas. But I don’t take the right to protest for granted. I see tools that would never have been available in my native Gambia.

The last time we heard from my 39-year-old brother, who had worked for Chevron as an infrastructure system analyst, was on June 22, 2013. He called and spoke with his wife in Houston. Nothing seemed out of the ordinary. Several days passed, and he did not call back. Because Alhagie had been in frequent contact via Skype, e-mail, or phone calls, we began to worry. Then trustworthy sources in the country told my family that Alhagie and Ebou had been kidnapped by the government. We don’t know why. President Yahya Jammeh makes no secret of his disdain for the West, so we worry my brother may have been targeted simply because of his Americanness.

My family is distraught. My parents, who still live in the Gambia, feel powerless to demand answers. It is a symptom of a broader tragedy being suffered by all Gambians, who are deprived of their voices to react to such outrages. And, what’s worse, most people in the Gambia don’t feel deprived of free speech or most other human rights because it is difficult to miss what you’ve never had—even if you desperately need it. Abstract freedom is not a priority in nations like the Gambia, where most people are locked in a daily battle for food, clean water, medicine, housing, and electricity..

I was born in the Gambia in the late 1970s. As far back as I can recall, silence was encouraged: The norms of our society held that children’s opinions don’t matter (an assumption I often questioned—and got in trouble for—growing up). This assumption created a cycle of silence in the culture. Children subsequently grew into adults who didn’t question authority. A bloody incident that took place during my high school’s traditional year-end trip to the beach reinforced the idea that we were not to question authority. During my last year at Muslim High School in the Gambia’s capital, Banjul, the president ordered students not to go to the beach after our traditional year-end day of games and sports called “Inter-house.” He didn’t think it was appropriate for Muslim kids, but we’d already purchased food and made plans. And we (at least some of us) believed what we did after school on our own time, and with our parents’ permission, was up to us. So we went, determined to have fun. But soldiers crashed our beach party, descending from trucks with weapons drawn, and started chasing kids. Soldiers were yelling and hitting students with the butts of their weapons as they arrested them.

I had never been so frightened in my life. My best friend and I made it out of there without getting hurt by finding shelter at a house down a nearby road. We walked home on the back roads many hours later. My parents said nothing to me about the incident even though they saw it on the evening news and knew I had gone to the beach. Silence echoed from house to house. Parents didn’t rise up in anger.

I came to America in 1997 to attend Navarro College in Texas, and it was so refreshing from the moment I landed to be in a country where everyone has the right to speak up and be heard. I can recall sitting in a calculus class when the teacher wrote a problem on the board, and a few of my classmates noticed that he’d made an error in the calculations. The students spoke up and said, “That’s not right.” The teacher reviewed his work and said, “You’re right.” He laughed it off, corrected the mistake, and continued with the lesson.

“Wow,” I thought. That never would have happened in the Gambia, where authority figures in all settings are presumed to be right, even when they aren’t, and they are certainly not to be questioned. In 2000, the military in Serekunda massacred 14 teenagers who were protesting the deadly beating of one student for talking back to his teacher and the rape of a local teenage girl—a massacre that Gambians don’t speak of in public. They don’t participate in Twitter campaigns or in any of the recent Facebook pages to honor the victims set up by members of the Gambian diaspora.

I know that if I were living in the Gambia and spoke up as I have here about Alhagie and Ebou, I would disappear or turn up dead. Witnesses saw the Gambian president’s security forces attack protestors in the U.S. when they showed up during August’s African Leaders Summit in Washington, D.C. For my safety and the safety of my family, I have resolved not to return to the country while the current regime is still in power.

But from our bases in Dallas, Las Vegas, and Los Angeles, my sisters and I don’t have to hide our tears. We can show them to the world. We can speak up. And it matters.

In response to our campaign to free Alhagie and Ebou, the U.S. State Department is investigating their kidnapping. It has released a radio announcement and two press releases seeking information about their whereabouts and asking the Gambian government to assist in locating them. These developments have left me hopeful that one day Alhagie and Ebou will be released and allowed to come home.

The post Can a Hashtag Bring My Brother Home? appeared first on Zócalo Public Square.

Fred Phelps died on March 19. Few tears were shed. Obituaries labeled him a preacher of hate. Reverend Phelps led the Westboro Baptist Church, a group known for its virulent opposition to homosexuality and for picketing a variety of events, including the funerals of military personnel, whom they believe God kills to punish a nation that tolerates homosexuality. From a library of placards, several with hurtful language are chosen for each picket: “God Hates Fags” (also the name of Westboro’s Web site), “God Hates You,” and “Thank God For Dead Soldiers,” for example. The picketers march, sing popular melodies with their own lyrics, and take on those who oppose them.

I first learned of Fred and Westboro when the U.S. Supreme Court agreed to hear the case of Snyder v. Phelps. Al Snyder is the father of a U.S. Marine killed in Iraq. Fred was one of seven Westboro members who protested the Snyder funeral. As with all of their pickets, Westboro had carefully planned this one, obtaining the necessary permits and obeying local laws. They were 1,000 feet from the church and ended the picket before the service began. Though he never saw them, Al sued for invasion of privacy and intentional infliction of emotional distress. He won at trial but lost an appeal. The Supreme Court would settle this First Amendment issue.

As a professor, researcher, and writer in the First Amendment field, I wanted to know the story behind the case. It was not only a major test of this nation’s tolerance for free speech; it would also be an emotional one. It was good vs. evil, integrity and honor vs. disgrace and vile, the venerated military vs. those who dare to oppose it. I wanted to arrange for a trip to the Phelps family home in Topeka, Kansas. The goal was to observe and interview.

I recall making my first contact with Westboro—a telephone call—in 2010 and doing so with some trepidation. Who are these people? Will they tell me to drop dead? Do they shun any kind of contact with the outside world? No. Shirley Phelps-Roper, one of Fred’s 13 children and a spokesperson for the church, welcomed my call and helped by scheduling interviews across several days. (The interviews—both during the trip and afterward by telephone—ultimately totaled dozens of hours.) In effect, Fred’s family is his church. Almost all of the church’s 70 or so members are his descendants or their spouses.

Shirley was extremely kind throughout the process and beyond. Of course, one reason behind the hospitality was Westboro’s desire for publicity, which its members readily acknowledge. Their mission is to convey the word of God (as they define it). The more eyes, ears, cameras, and microphones the better. I later learned that Westboro members viewed me as an angel sent by God, a facilitator of spreading the word.

My observations began on a Sunday, attending the weekly noon church service. Shirley welcomed me into her home, one of several in a neighborhood where many Westboro members reside, forming a sort of compound. We walked across the backyard—a fenceless area that creates open territory shared with other Phelps families—and into the church. Fred presided, speaking in an accent reflective of his Mississippi roots. The service did not seem out of the ordinary, though I must confess I couldn’t hear all of the words from the 80-year-old preacher from where I sat in the back. Fred read from a prepared script, employing Biblical passages, to illustrate the theme of comfort. There was no fire and brimstone that day and no mention of any of the groups that attract Westboro’s wrath outside the church. But there were visual images. Two of the protest placards stood on easels at the front of the church: “God Hates Fags” and “God Hates Fag Enablers.” Several attendees wore T-shirts with either anti-gay or anti-Jewish messages.

After the service, I was introduced to Fred. Though friendly, he cut an imposing figure at about 6-foot-3. During some small talk, he told me that Walter Cronkite stood for gay rights. The comment came somewhat out of left field, except for the fact that I’m on the faculty at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University. In a courteous tone, Fred was apparently reminding me that, in his view, I was part of a pro-gay rights workplace—one of those “fag enablers.” A news article about Cronkite’s gay rights views also appeared pinned to a bulletin board behind Fred when I interviewed him in his office upstairs from the church a few days later. Something told me that had appeared just for the occasion.

Even though the years were catching up to him, Fred Phelps was very bright. We tend to conclude that people who regularly commit vile, insensitive, and offensive acts lack common sense and basic intelligence. On the contrary, he and his family are highly educated and very intelligent. Though he no longer practiced, Fred had been a lawyer. He was inspired to become an attorney by the landmark Brown v. Board of Education school desegregation case that originated not far from his home. After schools across the country and especially in Kansas dragged their feet in integrating, Fred represented many whose rights were being denied. He was honored by many organizations, including the NAACP.

So how did he end up on a path that has created so much anguish for the people he and other Westboro members picket? First, there is what I describe as a warped view of Christianity, with religious passion and zealotry, run amok. Westboro was first established in 1955 as a “mainstream” Christian church, but its approach began a downward spiral when Fred reportedly witnessed his then-5-year-old grandson being lured by what he says was a homosexual at a Topeka park. After complaints produced no action, the Phelpses put up signs warning of homosexual activity. Protests followed, locally at first, then nationally.

Second, Fred kept his family/church together by ruling with an iron fist. He became estranged from some of his children, including his son Nate, who has said that physical and psychological abuse were not uncommon. When I asked Fred about this, there was no denial. In a house of 13 children, he said, “you have to have some rules, you have to enforce the rules and sometimes, in an extreme case, you have to spank a child. The Bible says to do that, and the Bible says if you don’t spank him when he needs it, you don’t love him, you hate him. The Bible says that.” The “spankings,” Nate told me, involved beatings with a garden tool. The iron fist rule also meant a “my way or the highway” approach that results in lifetime banishment from the church and family for any non-believers.

As the court date for Snyder v. Phelps approached, I wondered how the Westboro legal arguments would play out. The U.S. Supreme Court is an intense experience that tests even the most veteran of lawyers. Fred’s daughter Marge was going to represent her father and the church at the Supreme Court, and many of her siblings have also chosen this profession. I couldn’t help but wonder if so many of his children became lawyers to deal with anticipated lawsuits. No, I was told, it was simply to help him with his civil rights caseload years ago.

The day before her Supreme Court appearance, Marge and several of her family members had some “business commitments” – picketing at three Washington-area sites. In front of the White House, they were two-dozen strong. Fred did not make this trip, but Marge was there in full picketing regalia – a ball cap, sweats, an upside-down U.S. flag and placards in hand. It was less than 20 hours from her Supreme Court appearance. During a break from the picketing, we talked about her presentation the next day. She was quietly confident.

In court the next day, now in a business suit, Marge argued that Al Snyder, the father of the fallen Marine, should not be awarded damages for the infliction of emotional distress, largely because Westboro’s speech was on matters of public concern—homosexuality, the conduct of the military, gays in the military. Marge was virtually flawless, in contrast to her adversary, who stumbled and bumbled his way through his presentation and fielding questions.

Marge’s only error was the prediction she made afterward: “9-to-0!” When the ruling was issued in March 2011, the Court ruled 8-to-1 in Fred’s favor. The Court basically accepted Marge’s argument. In his opinion for the Court, Chief Justice John Roberts emphasized that the United States does not punish speech that causes pain, though it might be distasteful: “As a Nation, we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Though many observers may have difficulty distinguishing between Phelps’ actions and his right to freedom of speech, even hurtful speech can make a positive contribution to the kind of debate that is essential in a self-governing democracy. As pornographer Larry Flynt—also a winner at the U.S. Supreme Court in a case involving offensive speech—once said: If the First Amendment can protect someone like him, it protects all of us. Phelps was an accidental First Amendment champion who ended up strengthening the safeguards of liberty.

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