Destroying print run of a newspaper as free expression

Michael Curtis mcurtis at LAW.WFU.EDU
Tue Mar 20 14:42:00 PST 2001


The idea that destroying all copies of a newspaper (even if distributed
free) because one dislikes its ideas is somehow speech and at any rate
there is no reason for concern because the suppression is private
strikes me as an attack on the basic idea of freedom of expression.  It
is heartening to learn that these views are endorsed both on the right
and the left.  It shows that basic mistakes span the ideological
spectrum.

The historical analogy I recall is the suppression of abolitionists and
later Republican speech in the years before the Civil War--by mobs
breaking up meetings; destroying presses and throwing them in the river;
seizing and destroying abolitionist or Republican publications.  The
defenders of free speech at the time did not regard these as exercises
of free speech.  They saw them as an attack on the precious right of all
Americans to exercise free speech.  The view was functional, rather than
technical and legalistic.  Chapters 5-12 of my book, Free Speech, The
People's Darling Privilege deals with these controversies.

Basically to destroy all copies of a newspaper given out for free is to
suppress ideas and it is no more attractive if done by private parties.
To buy all copies with the intent of suppressing the paper is not much
more attractive, but it is a different case.    As with any concept, of
course, the paradigm case is clear (at least for me) which others are
less clear.

If one takes a functional instead of a technical legal view, mobs can be
every bit as much or more an enemy of free speech than government.  That
some of these acts may also be petty or not so petty crime does not mean
they are not also an affront to free speech.
    If someone on the list in his youth used to plaster over others
notices instead of posting next to them, then the most charitable
interpretation is that all of us did unfortunate things in our youth
that on mature reflection we would or should disavow.  These lapses of
judgment and rejection of the basic idea of a broadly free exchange of
ideas are not a standard to emulate.

If heckling is free speech, shouting down a speaker to prevent any
communication is something else.  Destroying copies of the newspaper is
more like silencing speakers than it is like occasional heckling.

      Admittedly some lines become fuzzy.  I assume that there is a
first amendment right to boycott as a form of protest. If you don't like
the ideas in the newspaper or want more balance, you can boycott and it
is true that the boycott may suppress some ideas.  But to me it is far
more troubling to seize and destroy copies of the magazine.  This is a
road we should not go down again.  It also leads to worse lawlessness.
What if the publisher seeks to protect the extra copies of her paper?
In the short run at least the issue will be decided by who has the
greatest physical power.  Elijah Lovejoy was killed while defending his
press from an anti abolition mob.

Michael Curtis

"Volokh, Eugene" wrote:

>
>
>         Before we get into the technical details, let me just make
> sure that I understand the claims on the other side:  Let's say that a
> conservative student organization is outraged at the anti-American,
> anti-patriotic, anti-religious material that some left-wing newspapers
> -- college papers or other free papers -- are putting out, and it
> decides to just gather the newspapers as soon as they're printed and
> throw them in the trash.
>
>         Is the claim that (1) there's nothing improper about this, and
> (2) it would be unconstitutional (or otherwise a violation of academic
> freedom) for the university to prohibit this?
>
>         Eugene
>
>      -----Original Message-----
>      From:   gayle binion [SMTP:binion at ALISHAW.SSCF.UCSB.EDU]
>      Sent:   Tuesday, March 20, 2001 9:25 AM
>      To:     CONLAWPROF at listserv.ucla.edu
>      Subject:        Re: Brown University newspaper advertisement
>
>      A long tradition in support of free speech similarly values the
>      heckler's speech.  I wonder if there should not also be
>      recognition that the conduct of protesting a message by openly
>      removing the vehicle of the message isn't also a form of protest
>      speech...  Had the behavior made the message inaudible it might
>      be seen differently from an act of expressive protest that if
>      anything has drawn more attention to the content of this ad and
>      perhaps may be intended and/or have the effect of making people
>      think more about the ad and its meaning for African-Americans...
>      I am not sure that this kind of event inhibits free speech..
>
>      gayle binion
>
>
>      -----Original Message-----
>      From:   Bill Funk [SMTP:funk at LCLARK.EDU]
>      Sent:   Tuesday, March 20, 2001 9:51 AM
>      To:     CONLAWPROF at listserv.ucla.edu
>      Subject:        Re: Brown University newspaper advertisement
>
>      "Volokh, Eugene" wrote:
>                   But setting aside the criminal law questions, isn't
>           it clear that this sort of conduct is highly reprehensible
>           -- [clip]  Surely a respect for the marketplace of ideas
>           means that you don't physically destroy anothers' speech
>           products, if you might have the legal right to do so.
>      I'm not sure why this is reprehensible.  Assume the school paper
>      in fact charged for each copy.  Would it be "reprehensible" for
>      someone to buy all the copies and then destroy them?  If not, and
>      if the paper is free, what is the difference?  Book publishers
>      (and law reviews) "physically destroy another's speech products"
>      every day, after sending out rejection slips, despite the earnest
>      desires of the authors to have their works widely read.  Nor do I
>      see anything reprehensible with organizing economic boycotts of
>      stores that carry Playboy and Hustler (or Playgirl), even though
>      the purpose is to take certain publications out of the
>      "marketplace of ideas."  In short, I see all the difference in
>      the world between private censorship and government censorship.
>      But then I was someone who in college would follow the SDS
>      members who were posting notices of rallies on telephone poles
>      and then would cover them with a notice publicizing a Young
>      Republicans rally.  However, even I would have rallied in support
>      of the SDS's right to post their notices.
>
>      Bill Funk
>      Lewis & Clark Law School
>
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