The print media has had a rough time recently. In addition to massive layoffs and cutbacks for many old stalwarts of the Fourth Estate, the government has been trying to take advantage of our weakness by limiting our ability to distribute content.This story appeared on page B1 of the Lexington Herald-Leader this morning; the gist is that a Lexington city councilman, Dick DeCamp, took a break from ritually burning copies of the Herald-Leader and murdering kittens (I can only assume) to propose a strict limitation on news racks located downtown.
If I'm reading the article correctly, the new newspaper containers would be confined to five government-sanctioned boxes in 25 government-sanctioned locations. Oh yeah, and the media outlets would have to pay for the new stands. The rationale for this project? Why, public safety and "beautifying" downtown, of course!
Naturally, I couldn't agree more. News racks have always been a immense source of casualties for pedestrians, cyclists and motorists. (I can't even count the number of times I've been injured by a rogue USA Today stand, and who among us can bear to look at "Apartment Finder" boxes after that horrific incident in '89?) Moreover, I've always thought the most beautiful cities are the ones that show no life at all. In the ideal metropolis, everything is standardized and sanitized, slick and sober, government-inspected and -approved. Character? Who needs it?
Needless to say, no valid First Amendment claims are at play here. If we regulate all media the same way, it's content-neutral, and we're in the clear, right? In fact, while we're at it, let's just ban the public sale of newspapers or distribution of any information in loose-bound print form. This would solve all the problems addressed by Mr. DeCamp's propitious proposal, plus a plethora of others. Paper waste in all its forms detracts from the beauty of our nation's cities, and we'd save trees by the truckload (we'd also decimate the danger of death by discarded daily). As long as we ban all printed newspapers, we're totally within constitutional limits. Hey, they can still post and advertise online! Let them have their free speech there!
Bottom line: I know where Mr. DeCamp can stick his proposal, and it ain't in the law books.
[Here's the text of the ordinance in PDF format, and the disclaimer that the Herald-Leader is my current employer. For some reason, they are not fighting any part of the plan except the bit that would require the boxes to be a standard color. Sad to say, but it's weakness like that gives the government the (correct) impression that they can walk all over us. How about a little backbone, people?]
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23 comments:
Free speech is right to say what you want and have it heard by anyone willing to listen, not a guarantee that everyone will hear what you say everywhere you want.
You can still publish and distribute by any number of other means including the remaining racks, and no one is being kept from getting papers from the remaining racks, so no foul; it's a city planning issue, not a speech issue.
No one complains about their inability to put billboards up in national parks, and it is a valid argument that urban shared space can and should be treated similarly, at least as far as more concrete development such as the placement of buildings, ads and other fixtures is concerned.
Lance, I took Bob Dunne's classes too, and as usual your facts are technically indisputable. I think, however, you're arguing the wrong point.
This is borderline prior restraint, and some local publishers are making that very case. The biggest problem is not that people won't be able to access the materials they want, but that this proposed restriction on distribution is utterly unnecessary and leads to an obvious slippery-slope problem. If we can't stand up to something like this, wherein the value to society doesn't justify the cost, what happens to our argument when they do decide to take away all the newsstands because they're "ugly"? My feeling is, let's nip this in the bud and stop the encroachment of these clueless local politicians on our rights while we still can.
You're arguing from the point of view that as long as there is any public forum, no matter how small, free speech is protected. In this way of thinking, the default for a city is that speech is restricted, and you have to seek out a space where speech is unrestricted in order to, e.g., sell a newspaper. I'd rather our cities have freedom as a default, with certain areas marked off where, say, billboards are prohibited, such as a national park.
Certainly, city planning is a complicated issue, and I'm not going to dispute that sensible zoning laws are invaluable and that certain downtown-beautification projects are worthwhile. But a plan like this, whose only goal is to limit the media, is not a good use of government power.
I love run-ons.
A public forum is not "small" if there is unfettered access, which there is. In fact, trying to "size" public forums for discourse is a horribly flawed approach. There's no gradient on level of restriction; either speech is restricted or it isn't, and in this case it isn't. No one is being kept from the papers, no one is restricting the content of the papers, and the only limitation being placed is not only neutral to the content of the paper, but is not even an absolute restriction on a single means of distribution, only a regulation of that means.
I can't walk into Central Park with some speakers and start acoustically heating the place with my political views for the same reason why there's nothing wrong with keeping people from placing news boxes willy nilly all over the city. Complaining that I've been suppressed by such a regulation is akin to screaming about a closed door when there's no wall around it.
...and defaulting on the side of restriction or freedom will always be trumped by thoughtful policy and planning. In this case, they are neither removing all the boxes nor giving you free reign to set up shop everywhere. "Erring on the side of freedom" doesn't apply here.
Several things.
First, you can go to Central Park and protest or espouse political views or whatever, as long as you have a permit. In the same way, you need a permit to sell anything on the street. That is not a question. (See, for example, "Settlement on Use of Central Park’s Great Lawn," NY Times, Jan. 8, 2008.)
Second, size (and location and time) totally does matter, and you offer nothing to justify saying taking it into account is "horribly flawed." Allow me to give you an example, albeit an extreme one: Let's say a certain city has a law prohibiting citizens to question the ruling party's ordinances except at one particular table in one particular park for an hour a day. The party in charge is not very popular, so the waiting list for space at the table goes five years into the future. In your analysis, speech in that city is unfettered because it is unfettered at one particular spot and anyone can stand around and listen to what is being said at the table. I would argue that speech in the city is still unconstitutionally fettered because of the magnitude of the restrictions (regardless of whether they actually restrict particular content). This is obviously not analogous to Lexington's situation—it's just to show that size does matter.
Third, the notion of freedom of speech as just a binary that can be only "fettered" or "unfettered" is ludicrous. If I recall correctly, a not insignificant amount of time was spent in Bob Dunne's seminars discussing the various shades of freedom for different situations (one may never incite immediate violence, remember?) and the various corresponding standards the courts use in their analyses (strict scrutiny, intermediate scrutiny, rational review, with differences for content-based and content-neutral, etc. etc.).
Fourth, your statement that "defaulting on the side of restriction or freedom will always be trumped by thoughtful policy and planning" scares me. Part of the point of the Bill of Rights is that we're not supposed to trust our government—these freedoms are our safeguard. You can take away the safeguard and implement the best, most efficient, most benign policies ever, but I still wouldn't want to live in your country. (What happens when you change your mind?)
Finally, I understand that they're not trying to take away all the boxes. They're trying to fix a problem that doesn't exist. (I walked down Main Street today, and trust me, there's no problem with news racks in the heart of downtown.) Impinging even a tiny bit on our most important rights, regardless of whether content is an issue, to fix imaginary problems does not sit well with me.
1. Central park argument: the permit would be the regulation, with the idea being that I understand that limitations placed on me are reasonable for reasons unrelated to the content of the speech. Same with news racks. Unless they're singling out which papers go in the racks, the argument stands. Whether or not you think that particular reason is valid is irrelevant; it falls outside the bounds of being a speech issue.
2. Sizing: your analogy is flawed. It presupposes that the table is the only means of expression, or is one that is significant to the point of being central to the people's ability to express grievance. Nobody's being gagged; at worst they are being told to keep their voices down in certain parts of the city. If your telling me that this is going to lead to a slippery slope that will lead to the closure of every single avenue of expression for you paper, then I'm afraid that there wasn't much hope to begin with.
3. Unrestricted is unrestricted, and restricted is restricted. You don't slip it in and still call her a virgin, even if it is just the tip. It's not. Bob Dunne's shades of grey concern whether there are instances where actual restriction of speech may in fact be justified. Only within the subset of restricted speech can you talk about gradients. I don't think this case even comes near that line, because nothing is getting regulated to the point of stifling speech. Not even close.
4. Sorry, I'm not a fan of values for the sake of values; if you're not willing to weight the utility of policy options because some principals are so infallible that even beginning to question their their appropriateness in a given situation becomes anathema, then allahu ackbar to you too ^^. Safeguards are a last resort; in most cases, the best way to move forward with any policy are facts, and nothing more. Government or individual, one does not rely on heuristics like "erring on the side of freedom" when the answer is clearly visible; you only do it when you, you know, "err." With that in mind, you can certainly make the argument that removing the racks isn't justified in that not enough utiles are derived from the aesthetics that accompany their loss, but guess what? That's not a speech issue.
btw.
i can't say i really care about the issue, really. it's just fun to think this stuff through.
I do care, but you're right—I'd imagine this kind of argument is good practice for law school.
For the record, I have not used the phrase "err on the side of freedom" in this discussion, nor did I intend to. It is impossible to err while on the side of freedom.
I'd also like to point out that FREEDOM ISN'T FREE THESE COLORS DON'T RUN GO AMERICA W00T!!!1
Favoring speech by default is erring on the side of freedom, though the term was admittedly used the most in my terrorism class, and noted for being ineffectual. Default is what you fall back on when you don't have any better information to make a decision on, but too often fuzzy-ass values are placed on the forefront instead of reality.
If one wants to truly be open minded and question everything, they should also be prepared to question their own open-mindedness and willingness to question everything.
mu
Categorically describing my principles as "erring" is a value judgment. Don't talk to me about values if you don't have any. BTW, compromise can be a virtue, but basically admitting you have no principles is not something I would recommend.
And I might have said this before, but I'll say it again: Freedom of speech is a prerequisite to openmindedness. In order to consider every aspect of and alternative to a given policy, one must be allowed to do so. Just as math and science have basic truths as fundamental building blocks (hey, now the discussion is relevant to everyone else!), this is a fundamental building block of policymaking, and no amount of clever philosophical trickery will convince me otherwise.
equating pragmatism and a policy grounded in fact to a lack of values is a notch above saying that evolution promotes pornography, but just a notch.
values are a tie-breaker, the last resort in decision making when actual knowledge of outcomes murky. it's the difference between a clear solution and a "close enough" heuristic. you start using your worst metrics for making decisions right off the bat, then, well, I guess that's why we are where we are. don't even begin to talk about the foundations of empiricism when you place ideology before reality.
if you are so unquestionably dead set in any value that critically and objectively evaluating its merits is out of the question, you're placing something on the pedestal either out of blind faith or simply for the sake of itself. it's a fine foundation for a religious belief system (which is, after all, based on belief), but for policy, it's a catalyst for unbelievable human disaster.
instead of screaming that the sky is falling, maybe some level-headed examination of just how the repositioning of news racks is going to impact readership (if at all) would be in order, and then an analysis into whether any such change would constitute prior restraint compared to previous cases (doubt it).
but that's unprincipled, i guess. keep your "values." I'll take my facts, and when one day when they finally do not suffice, then maybe faith in general principal would be a useful guide.
back to the issue at hand.
So x number of racks at x locations with y color. How does that compare to the status quo? Do you even know where all the racks are currently? Do people utilize them? Would they be missed? What was the policy on the racks before? Could you just stick one anywhere, or were there already regulations in place? Were THOSE regulations stifling to free speech? Why or why not?
Or does none of that matter, because it's all about free speech no ifs ands or butts? You better make a more compelling case than "it just is" that this is a speech issue, because the current fact pattern shows it clearly isn't considering the narrowness of the scope of change, its magnitude, and the fact that it's content neutral.
Let me rein this in a bit and put it as concisely as I possibly can.
If this proposed ordinance is challenged in court, it would be subject to intermediate scrutiny because it is content-neutral.
(From the National Coalition Against Censorship:) "Under this test the government must show [1] an important government interest in the regulation; and [2] the regulation is substantially related to achieving that interest."
If I were a judge, it would fail this test and be struck down. That is all.
...provided that the ordnance is sufficiently disruptive to even reach that test. What you quoted already presupposes the fact that some significant level of restriction on speech is already occurring in the regulation, an assumption that is actually at the heart of the issue. The qualification of content neutrality you describe for intermediate scrutiny is an upper limit on where this sort of test applies, above which I'd assume speech considerations are weighed much more heavily, but what are the lower bounds for determining whether a regulation can be considered a speech issue at all? Not every regulation even touches the bounds of speech limitation, and while this one arguably straddles the line, whether it actually crosses it is what matters in the debate. My take on that is that it either doesn't, or you haven't provided sufficient evidence that it does. Again, numbers on usage, placement and what the current policy is matters here.
Stepping back, if it chalks up to being fundamentally weighing the benefit of the ordinance in terms of metrics like city beautification, versus the potential harm of the loss of power of expression derived from having a few newsracks relocated, the judge would basically be overseeing a battle of the midgets that would not be nearly as one sided as you make it out to be.
See, the whole debate now makes a lot more sense once you step off the soap box and start actually taking facts on the ground into account.
Of course, you could argue from the point of view that any regulation that even remotely displays the possibility of being a limitation on free expression should be scrutinized as if it were a limitation on free expression, which I get the feeling is pretty close to the context from which you are arguing.
It's not unreasonable on a high level, although I doubt that's the way it actually plays out in courts for load purposes (you can argue x ways to Sunday about how doing various things represent speech, but that doesn't mean the law treats it as such); there has to be some metric to determining whether a regulation does in fact limit speech, and in this case, I'd say magnitude of the harm and content neutrality are about as good standards as any.
Facts do matter. But because of our deep philosophical differences, you and I have a very different concept of what facts are the most pressing, and how those facts interact with constitutional principles (not my individual values/principles, mind you, but those set forth in the Bill of Rights).
Much of this is, as you imply, subjective, so a judge would have to decide on pretty much everything, including whether to hear the case. My experience with the judicial system is limited, but here's my understanding of how this would work in the real world: If I'm a publisher and I call this prior restraint, I sue on the grounds that this is a speech issue, and the judge can either agree or disagree with me. If he disagrees, the case is gone and I'm SOL. If he agrees, he gathers the facts and applies intermediate scrutiny to determine whether the government has an important interest and if so whether the new rule is substantially related and furthers that interest. (I believe that if the judge takes the case based on content-neutral speech-regulation issues, intermediate scrutiny automatically applies.)
A lawyer for the state would no doubt argue the exact same points that you are making, i.e., that there is little risk of a chilling effect on speech because the change in actual distribution might be small and thus unimportant. This is certainly a valid argument, and there's no reason to believe it couldn't prevail.
For my part, I would argue that the government's interest is simply not important enough to justify even the possibility of chilling speech by forcing media outlets to pay for government-sanctioned and -limited boxes. "Fixing" a problem that doesn't exist by means of regulating distribution of media (even in a small way) does not constitute an "important interest."
The judge would weigh both of these sound and legitimate arguments, and if he sticks to constitutional principles, he'll pick mine. But in the end, it's all subjective, and both sides have merit. Good thing we have arbitrators to decide these things for us, and that we have a Constitution to guide those arbitrators.
"For my part, I would argue that the government's interest is simply not important enough to justify even the possibility of chilling speech by forcing media outlets to pay for government-sanctioned and -limited boxes."
There's the problem. At what point does something cross the line from being not a possibility to even the slightest possibility? You essentially open the door for any number of regulations to be challenged on speech grounds simply because the plaintiff says they are. We agree that it doesn't work that way, that the judge ultimately makes the call on whether the issue is even constitutionally or speech related in the first place. There must be a threshold for examining issues like this, and to suggest that there is none, that even the possibility of something being speech related somehow makes it speech related, would nuke the legal system.
Again, there's a difference between arguing for the magnitude and virtue of regulation that limits speech, and arguing whether a regulation limits speech in the first place. You focus on the latter while assuming the former, while it is the former issue that is where the real debate is.
If I believed that this was in fact a limitation on free expression, I'd agree with you that the virtues of the regulation don't come close to outweighing the limitation. But I don't believe that this is, in fact a limitation, and thus none of the legal tests for the harm of such limitations or presumptions in favor of the constitution apply here.
Lawsuits don't just appear out of thin air, and judges can't rule on constitutionality without a challenge (i.e., a lawsuit). Therefore, if I have reasonable standing and I decide there's a problem, I make the decision to bring it before a judge, and the judge decides whether I have an actual problem.
And yes, any number of regulations can be challenged just because a plaintiff says they're limitations on free speech. That's how laws get struck down. The responsibility for determining the threshold lies with the judge, not with the plaintiff. I can challenge whatever I damn well please, and a judge determines whether I have standing and my claims have merit, thus establishing a (dynamic, not static) threshold. Pretty simple concept.
You're right: This openness has nuked the legal system. Judges' backlogs are incredible, and nothing can get resolved quickly. But that's a topic for an entirely different debate.
And BTW, saying the debate is just about a regulation's magnitude and virtue doesn't make it so. That's just what you would focus on as a government attorney or a judge. Fine. It's a consideration, and such a consideration would probably play out just as I outlined in my last comment.
1. Obvii. No one is arguing against the way such cases may be brought, it's their merit that matters.
2. You said what I just said, except it's completely different from what you just said before. Plaintiff's challenge does not make it fact. What you implied before would have it that merely bringing the case forth with the belief that it is a speech issue makes it a speech issue, with no challenge involved. Challenge doesn't equal fact, it's up to the judge to decide using objective criteria. Thanks for clearing that up for you. Now maybe we can actually talk about what those criteria might be, which would be useful for a change.
3. See above. You presuppose that much of the initial criteria for taking a case within a speech context in the first place be taken as a matter of fact simply by virtue of the fact that it is brought forth. This would remove a significant filter for cases currently in place, and fun times would ensue. It's not so much "openness" as it is not having any criteria for properly classifying cases, cheapening the importance of defense based on speech violation by opening it up to pretty much any case that walks through the door. You seem to be on this bent that my arguments somehow run contrary to the spirit of the constitution. Aside from the fact that that spirit, by its own nature, is up for interpretation, I believe that unless you draw a clear line for what constitutes a speech issue and what does not-a line based on more than the challenge of the plaintiff-you are not only opening the door to an abuse of speech criteria as a means of challenging regulations, but you are diluting the speech framework as a protection against regulations that are infinitely more intrusive than relocating newsracks.
4. Again, you're putting my words into your mouth. The one thing I'm not doing to is weighing vice and virtue of regulation, as you seem to think, because I believe that the prerequisite for even looking at the regulation under that context is not met. These issues are sequential, not parallel in nature. First establish that the regulation is indeed a restriction on speech in the first place, and then conduct the test that you mentioned before weighing the utility of the regulation against its restriction on speech. I argue that you can't even get your foot in the door on that first issue for previously mentioned reasons, so arguing on the basis of the second simultaneously is moot. If it's not a speech issue, you can't argue on it as if it were one.
The question is whether this is, in fact, a speech issue. Why or why not? Hint: it's not just because the plaintiff says so.
I think things have been muddled, so here's a flow I've kept of what I think would be a normative flow of dealing with such an issue:
1. Plaintiff challenges ordnance on the basis that it is a speech violation. *Judge decides whether this is a speech violation before moving forward.* <-What are the criteria for this judgement? Hopefully a bit more than the fact that the plaintiff is upset about it.
2. Assuming the judge agrees with the plaintiff that it is indeed a speech issue. NOW we can talk about whether such a restriction is justified, safe in the knowledge that it is, in fact, a restriction. The judge then proceeds to do all the deliberating based on the sanctity of the constitution, utility of the ordnance, the degree to which speech is limited, etc. etc. and then makes a decision that we both agree would likely be that the ordnance is not justified in light of the benefits and harms.
You don't move to step 2 until step 1 is established, you don't use the criteria for step 2 to decide whether the issue passes step 1, and you most certainly do not pass set 1 by default because the plaintiff believes there is even the remotest possibility that it does meet the criteria for moving on to step 2.
You can argue step 2 all you want, but without a more compelling reason for why this is a speech issue, that this is indeed a limitation on speech, etc., no judge would even take the case that far. Funny thing is that in this case, you really could build such a compelling case against this ordnance, but instead of describing one, all you've done is argue that free speech is really really important, so important in fact, that you don't even need to argue about whether issue even falls under the aegis of free speech because it's just that important.
Now you're just deliberately misinterpreting or stretching what I've been saying. Not much I can do about that. This is now past the point of being interesting or useful. We've both made clear where we stand, and we're not going to outargue each other without mediation, so enough is enough. (Not to mention that I'm way behind on actual work.)
And please wait until you're a teacher before you ever write that last paragraph again. I know this wasn't your intention, but it comes across as pretty insulting to someone of equal education and qualification (which is to say, not as much as needed)—especially given the civility and depth (IMHO) of the debate we've been having. Kthx.
(My last comment responds to the 12:27 one, obvii.)
then what exactly HAVE you been saying?
so, seriously. if I'm misinterpreting, I must have lost track of you about three or four posts ago, right around when you accused me of having no values.
is this a speech issue? me: no, you: yes.
is this ordinance justified assuming it's a speech issue? you: yes, me: if it were, yes, but it's not, so it's irrelevant.
this isn't the general pattern? In my view, you blew the door wide open with the 11:29 post. whether that was a misunderstanding of my argument or a result of my misunderstanding yours, that's really when I went to town. I had a feeling something was amiss, so I made a second post to step back and describe the whole argument I'm building up. and if you didn't like the last paragraph of that, then, well, this ain't touch football. I took your accusation at my lack of values and ran with it, and I'm certainly not keeping you from rectifying my apparently mistaken assumptions there.
it's a shame if things were to end here, like some bad debate round from high school. if you think I'm wrong, don't walk away-kick my ass. the data warehouse here is now only slow, but in england as well, and I could use a distraction other than LSAT problems.
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