By Frank Gibson
Tolerance is in short supply nowadays.
That is obvious in two situations where the First Amendment is under assault in Tennessee. Basic freedom of speech and expression and the right to publish are in a crossfire and face threats of prior restraint.
One was taking place at press time in a Knox County criminal court. Attorneys for four defendants in a gruesome murder case are trying to stop the News Sentinel from posting public comments on its Web site about their clients. The sometimes harsh and somewhat uncivil commentary also has been aimed at members of the legal team.
It’s the First Amendment rights of press and speech against the Sixth Amendment right to a fair trial, with a twist. Defense attorneys are challenging the paper’s practice of not requiring that Web commentators identify themselves as clearly as letter writers.
Editor Jack McElroy and his attorney, Rick Hollow, are fighting the defense motion as is WBIR, the local Gannett TV station.
McElroy, in a recent column, tried to explain the difference in standards. One is a guest commentary selected for publication. He likened the posting of comments using only the writer’s screen names to early commentary, including the Federalist Papers, which appeared under the name “Publius.” McElroy explained the newspaper’s Web sites receive 50,000-60,000 comments a month and said any effort to verify the identity of everyone would keep many comments out of the public conversation and community bulletin board.
The other controversy was playing out at press time in the halls of the General Assembly. No fewer than 10 bills were filed to close all contents of 220,000 state gun carry permits. Most would punish the “unauthorized publication” of permit information with a misdemeanor fine up to $2,500.
One bill to made publication a felony, punishable by jail time, was withdrawn by the sponsor, but it showed the emotion and anger of gun rights advocates.
The felony bill, a holdover from last year, represented a new wrinkle in previous, longstanding efforts to close the records. It got some steam from The Tennessean’s decision to post the gun carry database, even though the data was taken down hours after it went up. That bill died in a House subcommittee in 2008.
The state attorney general issued an opinion during the last legislative session, pointing out that the penalty provision could make the legislation “vulnerable” to legal challenge as an unconstitutional prior restraint under the 1971 Pentagon Papers case.
The legislation was filed again this year and another firestorm erupted when the shooting death of a Memphis man drew attention to a database The Commercial Appeal had posted two months earlier.
One motorist, a permit holder, was charged with second-degree murder in a road rage argument with someone who parked too close to his SUV outside a Cordova restaurant. The victim’s three children witnessed the shooting, a Memphis TV station reported.
When the presence of the database came to light, the newspaper and its Web site were bombarded with calls and Web postings. One editorial on the topic generated more than 300 reader comments after the National Rifle Association posted a release on its Web site.
Gun rights advocates argued that posting their name, town of residence, year of birth, dates of issue and renewal violated their right to privacy and interfered with their Second Amendment right to bear arms. That was an odd claim, given the fact all permit applications clearly state the information becomes a public record upon submission.
Speaking of tolerance, one editorialist at a newspaper near Memphis opined that the legislation was a “direct response to the blatantly irresponsible use of handgun permit information” by the Memphis paper. At least one other editorial piled on, despite the lack of any evidence to support NRA claims that the information would cause harm. In a Valentine’s Day editorial, The CA argued for keeping the records open: “The public, for any number of reasons, simply has a right to know who has been issued a permit to carry a handgun in public, just as it has a right to know who’s licensed to practice medicine and who knows enough about the law to represent clients in court.”
The newspaper later used to the database to show that dozens of Shelby Countians had been given permits or allowed to keep them despite long criminal records for robbery, assault and domestic violence. The state revoked some permits based on the paper’s reporting.
Most of the problem was caused by courts not reporting felony convictions and domestic orders of protection to the state and because the state lost access to the FBI crime database for 18 months in 2006-2008, making complete background checks difficult if not impossible.
Now, back to this shortage of tolerance. It’s hard to image any state with two cases of this magnitude going on at the same time.
That sent my mind flashing back to my year of First Amendment study at the University of Michigan Law School under Professor Lee C. Bollinger. It was the same year he published his book The Tolerant Society. Some may remember Bollinger, who as the president of Columbia University caught a lot of flak for inviting the head of Iran to speak at Columbia a year or so ago.
Bollinger used as a framework in one course a 1978 free speech case called Village of Skokie v. National Socialist Party of America. It involved efforts by a neo-Nazi group to get a permit to march through the predominantly Jewish Chicago suburb and home to several Holocaust survivors with their swastikas.
The Supreme Court upheld the “constitutional validity” of restrictions on prior restraint. Making the case even more fascinating was the irony that the American Civil Liberties Union successfully represented the Nazis despite the loss of millions of Jews in the Holocaust.
The cases also sent me back to the writings of my friend, Dr. Dwight L. Teeter, the former UT dean and co-author of the widely-used communications law text subtitled Freedom and Control of Print and Broadcast Media.
One of the most profound observations in Teeter’s book states: “The Pentagon Papers case underlines the important truth that no freedom is ever won, once and for all.” “Each freedom has to be re-won by each succeeding generation.”
Teeter quotes senior federal Circuit Court Judge Harold R. Medina: “Some people may think that leaders of the free press would perhaps accomplish more if their claims of constitutional right were less expansive. I do not agree with this. I say it is their duty to fight like tigers right down to the line and not give an inch. This is the way our freedoms have been preserved in the past, and it is the way they will be preserved in the future.”
These two Tennessee examples may not rise to the national level of national judicial import as Skokie or the Pentagon Papers cases, but they are serious threats.
I don’t mean to suggest that anyone should do anything just because it is legal and they can. That sort of arrogance only invites trouble.
One of my favorite historical figures, certainly the most quotable, was Benjamin Franklin, who died the year before the Bill of Rights was ratified in December 1791. Some of his words of wisdom are relevant in the current circumstances, even if completely out of context.
“A small leak can sink a great ship.”
“We must, indeed, all hang together or, most assuredly, we shall all hang separately.”
And, perhaps the most appropriate: “Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”
There are many ways to protect the Sixth Amendment rights of the four people facing murder charges without infringing on the free speech rights of citizens to comment and the News Sentinel’s right to publish. Hopefully the judge is balancing those interests and recognizing the possibilities of a change of venue or picking jurors who have not read the comments on the News Sentinel Web site.
We have tried to show members of the General Assembly there are better alternatives than closing gun permit files from public and press oversight of that program. There are certainly better ways to balance the concerns of gun owners and the public without trying to punish disclosures that might show that permits are going to some people who shouldn’t have them.
Those solutions will take some balance and more tolerance than we’ve seen lately.
FRANK GIBSON is executive director of the Tennessee Coalition for Open Government. He can be reached at (615) 202-2685 or at firstname.lastname@example.org.