Free speech under fire all around the nation

It’s been a rough week for free speech.

In Nevada, Colorado and the nation’s capital, that most fundamental of liberties came under assault from a surprising array of antagonists acting out of depressingly similar motives.

At the close of her concert last Saturday night at Las Vegas’ Aladdin hotel, singer Linda Ronstadt dedicated an encore rendition of “Desperado” to documentary filmmaker Michael Moore and his new movie, “Fahrenheit 9/11,” which is, to put it blandly, critical of President Bush. The pop diva described Moore as “a great American patriot ... someone who is trying to spread the truth ... someone who cares about this country deeply and is trying to help.”

A significant portion of the 4,500 people in attendance disagreed. They booed and some stormed out of the theater, throwing drinks in the air and defacing concert posters on their way out. Bill Timmins, the hotel’s British-born manager, had Ronstadt’s belongings removed from her suite, sent security guards to escort her to her tour bus and ordered her off the grounds.

“A situation like that can easily turn ugly,” Timmins told the Las Vegas Sun. “There were a lot of angry people there after she started talking.”

Actually, there are those who might think that when a drunken mob attempts to howl a performer off the stage and successfully intimidates an already timid innkeeper, the situation already is ugly.

Meanwhile, in Colorado, a deeply divided state Supreme Court upheld a district judge’s right to impose a prior restraint order on seven news organizations covering the trial of Laker star Kobe Bryant, who is accused of raping an Eagle, Colo., hotel employee.

Last month an Eagle court clerk apparently mistakenly e-mailed the news organizations, including the Los Angeles Times, transcripts of two closed hearings on the admissibility of evidence concerning the alleged victim’s sexual history. Bryant’s lawyers contend that abrasions observed on the accuser after she reported the incident may have been the result of multiple sexual encounters she had at about the same time. That, the defense argues, makes her sexual history relevant. Prosecutors say that, under Colorado’s rape-shield law, the admission of such evidence would constitute an illegal intrusion on the woman’s privacy.

The trial court judge has yet to rule on the issue, and, three weeks ago, he ordered the media organizations not to publish any of the material they’d been mistakenly sent and, in fact, to destroy their copies. The Colorado Supreme Court vacated the latter part of his order but upheld the prior restraint on publication.

The U.S. Supreme Court never has upheld a prior restraint on the press’ ability to publish or broadcast what it deems newsworthy, even when the information contained in the report had been obtained illegally. On Wednesday, the news organizations -- now joined by the New York Times -- filed an emergency application asking the high court to strike down the Colorado ruling.

First Amendment specialist Floyd Abrams, who frequently represents the news media, called the Colorado ruling “disturbing. One of the clearest bodies of law we’ve had is the law that says prior restraints on the press are all but totally unconstitutional.”

The Colorado jurist’s rationale for overturning what surely is the most settled issue in 1st Amendment law was indeed novel -- essentially, an attempt to create what might be termed a “celebrity exception.” Writing for the 4-3 majority in the case, Justice Gregory J. Hobbs noted, “The defendant Bryant is an internationally recognized professional basketball star. The press has been covering every minute detail of this case and most of this coverage has been published or broadcast nationwide.” Hence, the majority reasoned, an enhanced obligation to protect the accuser’s privacy.

Thirty-three years ago, in its landmark decision on the Pentagon Papers case, the U.S. Supreme Court explicitly rejected the notion that considerations of national security could be used to fashion an exception to the constitutional prohibition on prior restraint. Can the Colorado court seriously propose that celebrity creates a necessity that national security does not?

Moreover, as the dissenting jurists argued, most of the information contained in the contested transcripts already is in the public record and the seven news organizations did nothing wrong to obtain it. “These two factors alone,” Justice Michael Bender wrote for the minority, “require this court to direct the district court to vacate its order immediately.” Bender and his two colleagues also wrote, “Prior restraints are not meant to mitigate harms that have already occurred” and that the trial court cannot “require the media to do what the state failed to -- give the alleged victim the protection afforded by statute.”

Not according to attorney Claudia Bayliff, who works for Legal Momentum, a national organization concerned with women’s rights. She told the Denver Post that it would be “an absolute travesty of justice if the court had allowed the press to publish those transcripts. The 1st Amendment is not absolute.”

Apparently, though, an alleged victim’s right to privacy is.

Finally, in Washington, the liberal advocacy group MoveOn.org and political watchdog Common Cause filed a formal complaint with the Federal Trade Commission alleging that the Fox News Channel’s slogan, “fair and balanced,” constitutes deceptive advertising.

Slogans notwithstanding, Fox News is the most unapologetically biased major American news operation since the era of yellow journalism. It tilts right and Republican and makes only the most cursory pretense otherwise. MoveOn.org and the Center for American Progress already have made that case by sponsoring the release of Robert Greenwald’s compellingly bare-knuckled documentary, “Outfoxed: Rupert Murdoch’s War on Journalism.”

It may be the complaint is nothing but a tactical political maneuver, an attempt to light a liberal backfire against the conservative’s habitual election-year denunciations of the mainstream media’s bias. If so, it’s a lousy and unconsciously risky gambit. Does anyone really want the FTC rummaging around in the editorial decisions of any news organization, including Fox, which is what adjudicating this complaint would require?

As Timothy Muris, the commission’s chairman, said in a statement: “There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the 1st Amendment leaves to the American people, not a government agency.”

Out of the mouths of bureaucrats ...

At some point over the last decade the words “I think you’re wrong about that” were replaced by the dismissive “you can’t say that.” The opponents of free speech always have a higher value that must be maintained by silencing somebody else -- patriotism for the Las Vegas louts; a woman’s right to sexual privacy in Colorado; a distaste for politicized airwaves in Washington.

But this isn’t a discussion that admits a distinction between regrettable means and a desirable end. Speech is free for everyone or it’s free for no one. There is a long and painful history to teach us that when liberty of expression is suppressed, the public square does not become a silent place but one where the only sound is the voice of authority.