Robb: No, your First Amendment rights aren't being attacked
Robert Robb: Free speech may allow you to say what you want, but it doesn't guarantee you an audience.
Robert Robb
Gov. Doug Ducey was right to veto the legislation (Senate Bill 1384) limiting the ability of school administrators to regulate the content of student newspapers. Much of the criticism of the veto was rooted in muddled thinking about the First Amendment’s free speech protections.
The First Amendment is a negative injunction: “Congress shall pass no law … abridging the freedom of speech, or of the press ...”
That gives Americans the right to write or say what they want. But it doesn’t guarantee an audience. Or a publisher.
Schools could be sued for what's published
At the high school level, the publisher of a student newspaper is clearly the school. The vetoed bill would have sharply curtailed the authority a publisher usually has over content. Administrators could only exercise oversight over material that is defamatory, violates privacy or law, or creates an imminent danger of inciting disorder or unlawful conduct.
Those are all nebulous standards, subject to judgment, disagreement and litigation. The bill stated that the school isn’t liable for content published in the student media, but that’s a doubtful immunity.
The Arizona Constitution is highly protective of the right to sue. Courts are likely to look askance at letting the adults in the equation, and the only deep pockets in the picture, off the hook.
Bill would have brought unwanted chaos
Schools exercising the usual authority of a publisher isn’t an infringement on the First Amendment rights of student journalists. If the publisher of this newspaper took the advice of some of you and discontinued this column, my First Amendment rights wouldn’t have been violated.
MONTINI:Ducey praises 'free speech' law that could put you in jail
A school punishing a student for content published on a private blog or Facebook might implicate First Amendment rights. But not publishing something in a publication paid for by the school doesn’t. That’s exercising the prerogatives of a publisher.
This is a minor point, but not an irrelevant one. One of the challenges our schools face is maintaining an orderly learning environment. Schools aren’t helped by the Legislature concocting another legal thicket for them to negotiate.
What else we get wrong about free speech
It’s unfair to Ducey to bring Donald Trump into the conversation at this point. Ducey behaved responsibly with his veto. Trump is behaving irresponsibly in his war with certain media. Nevertheless, much of the commentary regarding Trump’s war with the media is also rooted in muddled thinking about the First Amendment.
The New York Times has a First Amendment right to write what it wants about Trump. And Trump has a First Amendment right to say what he thinks about what The Times writes about him.
Trump exercising his First Amendment rights doesn’t curtail or threaten The Times’ First Amendment rights.
Some commentators make a more subtle point. By attacking certain media, they assert, Trump is undermining the role of the press that the First Amendment was intended to protect.
No one buys that the press is neutral
This is a historical miscue. At the time the First Amendment was adopted, the press, mostly newspapers and pamphleteers, were fiercely and transparently partisan.
The notion of the media as neutral and objective transmitters of information is a modern-era pretense. And the American people have never bought it.
In 2013, Gallup asked “how much trust and confidence do you have in the mass media – such as newspapers, TV, and radio – when it comes to reporting the news fully, accurately, and fairly – a great deal, a fair amount, not very much, or none at all?” Well before Trump twitter storms became an important element of public discourse, 55 percent of respondents answered not very much or none at all.
There have been reports that the Trump administration was mulling abandoning the daily White House briefing or even booting reporters out of the White House, and this has been decried as an attack on the First Amendment. This has been the most muddled thinking of all.
The First Amendment isn't under seige
Nothing in the First Amendment guarantees self-selected media office space in the White House or an administration spokesman to play gotcha with on a daily basis. Getting rid of both might reduce the herd mentality and emphasis on gotcha journalism and produce more diverse and substantive reporting.
Trump is frequently reckless and irresponsible in his attacks on the media. But so long as we are free to write and say that, the First Amendment is not under siege.
Reach Robb at robert.robb@arizonarepublic.com.
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