October 17, 2019 Feature

Taking Liberties: The Challenges for Free Speech Advocates in a Time of Turmoil

Lawyers must consider not only the viability of their legal positions but the public’s reaction to their arguments.

By Jeff Hermes

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Deep political division and the institutional press tarred as a partisan weapon. Outrage directed toward online platforms over the content they permit and the content they block. Pervasive international regulation of speech bleeding into the United States. Attorneys representing the media in the current social and political environment face a convergence of challenges that require them not only to represent skillfully the specific interests of their clients but also to advocate for fundamental principles of freedom of speech.

I spent a fair amount of time contemplating these challenges during the summer of 2018, when I had the opportunity (courtesy of a grant from the Knight Foundation) to travel across the United States to teach fundamentals of media law to reporters at journalism conferences. I spent quite a while in airport waiting lounges, and every so often I’d strike up a conversation with another passenger. The far side of an airport security checkpoint being perhaps the one place where someone might discuss issues touching on politics with some sense of physical safety, I would even occasionally talk about my work as a media lawyer.

Most expressed some degree of dissatisfaction with the news and other media that they were consuming; I heard frustration with particular news outlets, with social media, and with the practice of journalism as a whole. A few wondered how things had changed so much in what seemed like a few years, while others were quick to place blame on the president’s Twitter habit, corporate greed or bias, or any of a range of other perceived ills or villains. A couple of fellow passengers presumed that my own political orientation differed from theirs based on our flight’s origin or destination, despite the fact that we were all going to the same place.

I generally responded by talking about my work for media clients all along the political spectrum and explaining my firm belief that freedoms of speech and press are a nonpartisan issue. While I’d like to think that I helped a few people to think about the First Amendment as embodying a principle over and above the rancor of this particular moment, it was dispiriting how often the response was an instinct from both the left and the right to propose limitations on speech as a method for curing the ills of the nation.

Unfortunately, this urge toward censorship is more than the subject of a few pre-flight chats; my colleagues and I have also seen it in the course of our day-to-day work, which entails surveying developments and emerging trends in media law. It is a fact, though perhaps not an obvious one, that political polarization automatically presents potential threats to freedom of expression. After all, what is polarization if not the failure of debate—a rising intolerance for statements with which you do not agree, a refusal to listen, and a desire for the silence of opposing voices? As the divide widens, those on either side start to view free speech less as a vital principle and more as a tool for the battleground of the moment.

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