By Marc Randazza.
Censorship often comes along with a side order of good intentions — or at least that is in the marketing materials for the proposed censorship. You want a world without racism? Lets ban racist speech! But, the problem is that censorship almost always turns into a tool to seize or maintain a grip on power. (What We Risk When We Ban Racist Speech)
A Kentucky legislator recently proposed a narrow restriction on free expression — and it seems that it came from reasonable and logical intentions. Unfortunately, when you consider this idea while keeping the First Amendment in mind, the implications are no longer acceptable. They are intolerable.
Representative John Carney introduced a bill to prohibit anyone who witnesses "an event that could reasonably result in a serious physical injury" from publishing information about that event on the internet for at least an hour if their posting could identify potential victims.
I see where he is coming from. Do you want to hear about your loved one being killed in a car accident from Facebook? Do you want to wake up from an accident and find your traumatic and personal experience all over Twitter? I get it. In short, we have significant social media privacy issue – and the United States seems to be forgetting all about privacy issues as we steam forward into the Internet's adolescence.
What the East German Stasi used to do to its citizens, we all now do to each other. We all live under constant crowdsourced surveillance, and instantaneous broadcasts of traumatic events are commonplace. As a policy consideration, I am happy that someone is at least willing to take a shot at changing this. But, despite the good intentions behind the bill, I can’t get behind it. A law like this can not likely withstand First Amendment scrutiny.
A law like this is what is known as a “prior restraint” – a rule that attempts to prevent speech from occurring. As Justice Blackstone eloquently wrote: The liberty of the press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publications…” Or, as Walter Sobchak shouted, “THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!” Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998). See also, How to Cite to Walter Sobchak.
That rejection is rounder than you can spin me like a record. Rounder than Ken's noggin.
It has been that way since Near vs. Minnesota. So, you've had 85 years to get with the program.
Prior Restraints are permissible under the U.S. Constitution. However, they are restricted to situations with which there is an immediate, clear and present danger that something awful will happen if the speech gets out there.
No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. Near v. Minnesota, 283 U.S. 697 (1931).
For example, if Popehat found out about a troop movement in Afghanistan and wanted to publish that information, thus essentially broadcasting a secret mission to the enemy, the government could likely get a Prior Restraint. This would keep that information from being published until after it no longer causes harm to the operation, but it would have to dissolve once the necessity for it passed.
We certainly don't want to lose a war because we are afraid of delaying a news article by twenty- four hours. On the other hand, we do not allow Prior Restraints simply to protect feelings or privacy.
I can philosophically agree with Representative Carney’s proposal. I get it. But, how do we think that such a prior restraint would be used in the future — when someone wants to use it to seize or wield power in an undemocratic manner? I'm not sure either, but I think that when we see a possible prior restraint, we should consider that to be a "nuclear option." We don't need to ask ourselves how bad the damage will be. Unleashing a prior restraint is damage in itself.
I'm not saying that I wouldn't be able to agree to any future notions of new justifications for prior restraints. In fact, a recent 7th Circuit decision raises some interesting issues. I'm not even 100% committed to the long-settled notion that equity can not enjoin libel — as it is at least worth discussing whether that still makes sense in 2016 (even if only to reject any change – but lets not be lazy in the name of absolutism). (UPDATE: "equity can not enjoin libel" means that you can't get a court order stopping someone from defaming you before a trial on the merits of the defamation claim — and sometimes, not even afterward).
But, we need to recognize that prior restraints are very dangerous, very sticky, very dirty, and very difficult to manage effectively. Any time you think about unleashing one, you need to have a very clear discussion about what it could mean, once you let that gimp out of the basement.
In this particular situation, I would very much like to see Carney's vision come to pass. I would love it if every time you fucking dipshits drive past a car accident, you just look at the road ahead of you and keep driving. I'd love it if society got to a point of civilization that nobody whipped out a cell phone to take a picture of someone lying on the ground after an accident.
But, do I want to live in a place where we can't photograph the police murdering citizens? Do I want to live in a place where we can't immediately broadcast genuinely newsworthy events? Do I want to live in a place where the cops can arrest me for publishing a picture?
Fortunately, Carney realized that too, and withdrew the proposed bill after catching hell for it. Good. The intention might have been noble, but the medicine was too damn dangerous to take.
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