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Oct. 2, 2010
Uninhibited, Robust and Wide-Open
Stephen F. Rohde
Email: rohdevictr@aol.com
Stephen is a retired civil liberties lawyer and contributor to the Los Angeles Review of Books, is author of American Words for Freedom and Freedom of Assembly.
At the dawn of the 21st century, with the world more interconnected and interdependent than ever, with information circling the globe in an instant, will freedom of expression rise to the highly protected level enjoyed under American law, or descend into the censorship experienced in many other countries? This is the timely and vital question Lee Bollinger, president of Columbia University and a leading First Amendment scholar, asks in his new book. Bollinger shows how American law has developed extraordinarily broad protections against censorship based on an overarching judgment about the proper way to structure the national public forum, and how best to control and moderate the natural authoritarian human impulses that can undermine and even destroy a working democratic society. The extent to which our First Amendment jurisprudence protects an "uninhibited, robust, and wide-open" free press contrasts sharply with the approach taken in most of the world. Indeed, well-recognized and long-standing international treaties expressly recognize specific exceptions to their otherwise broad principles protecting freedom of expression. Article 19 of the International Covenant on Civil and Political Rights declares, "everyone shall have the right to freedom of expression." However, it also expressly limits this right by conditioning it on "special duties and responsibilities," which means that freedom of expression "may be subject to certain restrictions ... as are provided by law and are necessary," such as respect of the rights or reputations of others, national security, or public health. Restrictions of this kind have been outlawed or severely limited under American law for more than 50 years. (See Brandenburg v. Ohio (395 U.S. 444 (1969)), in which the U.S. Supreme Court ruled that even advocating the use of force or violation of the law cannot be punished or forbidden unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.") Consequently, Bollinger worries that without "a central, overriding system of constitutional protections, there is a risk of a collapse to the bottom, where jurisdictions that have the least degree of freedom will undermine the freedom of those that value it the most." In other words, "censorship anywhere can become censorship everywhere." Unfortunately, as eloquently as Bollinger frames this very serious problem, he does not bring his considerable knowledge and scholarship to bear to devise a comprehensive legal and intellectual strategy to forestall these dangers. Bollinger suggests only that international trade agreements could be conditioned on countries agreeing to abide by higher standards of press freedom (for example, in exchange for hosting the summer Olympics, China promised in 2002 to "be open in every respect," but it has since tried to censor Google). Sadly, what the author rightly identifies at the outset of his book as fundamental "risks" to the transcendent values of freedom of expression become in the end merely "secondary concerns," which he is willing to compromise for the greater good. Bollinger instead could have made the powerful case in the international context that for free and democratic societies to thrive the law must, in the words of Oliver Wendell Holmes Jr., protect "the principle of free thought - not free thought for those who agree with us but freedom for the thought that we hate." Stephen Rohde is a constitutional lawyer and chair of the ACLU Foundation of Southern California.
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Kari Santos
Daily Journal Staff Writer
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