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Free speech: what it means (10/17/2012)
By Sarah Squires

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. 

First Amendment to the United States Constitution

From the pages rolling off our printing presses in downtown Winona, this newspaper is the First Amendment in action. 

We tell you the news, our focus often on local government. 

We invite you to assemble by printing your own calls for action. 

We post religious gatherings, from churches that planted stones more than 150 years ago to the newest places to worship in new ways. 

We celebrate your stories on these pages. You offer your opinions, your convictions, and your intimate knowledge of our region. 

Together we share this mission: creating a narrative without a reaching arm of government that censors, one that limits the dialogue fundamental to democracy. 

As a newspaper, we take this job very seriously.

Next week is Free Speech Week, a time to reflect on what the First Amendment really means. In the coming editions, the Winona Post will explore the rights granted by the First Amendment with an emphasis on freedom of speech and freedom of the press. First in the series is a look at the role of newspapers in both defining, and continually upholding, the right to free speech in America.

by Sarah Squires

Despite the succinct entries in the First Amendment, freedom of speech and of the press are not simple concepts. They have been constantly questioned, constantly refined in U.S. courtrooms. They continue to change, subject to varied interpretations. The two concepts -- rights for citizen speech and a free press -- are intrinsically linked. Most often, when a question arises about freedom of speech in the courts, it is a newspaper or news organization that is advocating for those rights to be upheld.

First Amendment

in practice

Because newspapers in America often serve as the playing field for free speech issues, the way that news media operate is tied very closely to the parameters of the First Amendment. Newspapers are legally responsible for everything that is printed on their pages, whether the text is from outside sources or not. Letters to the editor, submitted articles, and even press releases must be closely scrutinized to ensure they do not contain questionable allegations. That is why sometimes a letter must be edited to omit problematic elements. Sometimes an editor’s note is attached for clarity; sometimes, a letter or submission simply can’t be printed at all.

During election season, printing letters to the editor that include public comments critical of public officials, becomes an even bigger task. Newspapers must not only critically review political letters to the editor, but must also ensure that pages give candidates and their supporters and adversaries equal opportunities through carefully crafted, and followed, letter policies. (Political letter writers should note: the October 31 edition is the last Winona Post that will allow letters critical of candidates, so that any candidate attacked in these pages one last chance to rebut the criticism.)

Minnesota Newspaper Association Attorney Mark Anfinson has been the legal council for the majority of newspapers in the state for decades. As an expert and advocate of freedom of the press, Anfinson said those First Amendment rights are complex. “It’s very clear that the law is a living kind of creature and that it grows and evolves as time passes. Certainly, in the First Amendment arena, there are no absolute, fixed rules at all,” he said.

One of the most famous free speech cases was heard by the U.S. Supreme Court in 1964, New York Times v. Sullivan. Anfinson explained, “It established for the first time that certain kinds of individuals in our society require greater scrutiny from the media and the public [than others]. The court defined these people as public officials.”

The courts have since expanded the definition of “public official” to include “public figures,” and each definition is still occasionally challenged in court. Any elected official is always included in this definition, as are those who run for office and most government workers who have some significant degree of responsibility for government actions and decisions, said Anfinson. What the court decision meant, for both the public and for newspapers, is that those people who choose to be responsible for public government action should, and can, be more heavily scrutinized than other members of the public, he explained. “Their positions require that the public know more about them than private citizens… The [Supreme Court] wanted to encourage media and the public to engage in robust comment and criticism about these people, without excessive and undue fear of libel suits. That’s exactly how the court framed it.”

The New York Times v. Sullivan case does not mean that newspapers may simply print anything about a public official. What it did was establish the “actual malice” standard for defamation and libel lawsuits brought by public figures. In order to prove such a case in court, a public official must prove that a publisher printed accusations that were knowingly false, and did so with reckless disregard for the truth -- the definition of actual malice. The higher standard for such lawsuits from government officials allows newspapers to look critically at government figures without the fear of constant legal retribution. Justice William Brennan Jr. wrote in the decision, “[We] consider this case against the background of a profound national commitment to the principle that debate on public officials should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

At the time of the opinion, parts of the country were embroiled in debate over segregation and civil rights, and many feared that if the Supreme Court did not overturn a lesser-court ruling on the matter, the use of libel lawsuits targeting those arguing against segregation would prove financial ruin for publications advocating against it. Federal Judge Alex Kozinski explained what may have happened without the Supreme Court ruling. “If L.B. Sullivan... could intimidate The New York Times, the media in this country would become as effective as a toothless guard dog.”

That 1964 decision was one of many court opinions that have helped shape freedom of speech rights in the U.S. since the amendment was crafted. Journalists and newspapers, along with the public officials defined in the 1964 ruling, are nearly always the ones squaring off on First Amendment questions in the courtroom. “Many journalists have gone to jail defending that principle, and this has been true back to the earliest days of the republic,” said Anfinson. “There’s no question that over time, a very large percentage of the First Amendment advocacy, especially in the courts, has been accomplished by the American news media. If one looks to the millions and millions of dollars that news organizations have spent over the last fifty to sixty years to advocate for First Amendment rights, a very large percentage of that money, most of which went to legal fees, didn’t need to be spent. It wouldn’t have been required, if the newspaper was willing to settle or not give the First Amendment such a high priority. [Most] has been spent purely to protect the principle.”

Anfinson’s parents published a small town community newspaper in Minnesota, and he remembers doing just about every job in the office growing up. He said that newspaper work is not often a glamorous courtroom battle, but First Amendment rights are ingrained in what print journalists do, from the front desk to the pressroom, and his respect for those rights is part of the reason he has dedicated his professional life to newspaper law. Another part of the reason, he said, is because defending those rights isn’t just about newspapers; it is about everyone. “It’s not just the media that has the right to free speech, but the public,” he said. “This is the public’s right of free speech, not just journalists. It affects everybody’s right to free speech, not just news organizations.”

Keep reading the Winona Post as we continue to explore the First Amendment in the coming weeks. 


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