On December 21st, the faculty senate of the Massachusetts Institute of Technology voted to approve a “Free Expression Statement,” defending speech and expression at the university. The statement asserts that “learning from a diversity of viewpoints, and from the deliberation, debate, and dissent that accompany them, are essential ingredients of academic excellence.”
The Free Expression Statement was approved by a vote of 98 to 52, a sizable margin showing that respect for free expression is alive and well at MIT. Not only does the statement enshrine respect for free speech, viewpoint diversity, and debate as cornerstones of academic integrity, but so too does it defend the right to speech that may hurt or offend. “We cannot prohibit speech that some experience as offensive or injurious,” the statement reads.
The Free Expression Statement is the culmination of a year’s work by MIT’s Ad Hoc Working Group on Free Expression, and was incited by last year’s invitation for, and subsequent cancellation of, a speech by geophysicist Dorian Abbot. Abbot was invited to present 2021’s annual John Carlson Lecture, which “communicates exciting new results in climate science to the general public.” Protestors led a successful campaign to disinvite Abbot because of his critical views on the university’s Diversity, Equity, and Inclusion initiatives.
That the Free Expression Statement was adopted by the faculty senate goes a long way towards rectifying the mistakes of last year, but it still has further to go. “[MIT] President Kornbluth can set a strong example by endorsing the free expression statement herself, as well as by considering and implementing the thoughtful recommendations of the free expression working group,” said Peter Bonilla, Executive Director for the MIT Free Speech Alliance.
PT1 strongly supports the passage of the Free Expression Statement by the faculty senate at MIT. We look forward to further efforts to preserve and protect free speech at MIT and at universities across the country.
How wrong does a journalist have to be in her reporting to be held liable for a false statement about a public figure?
The baseline for libel of a public figure traces back to the 1964 New York Times v. Sullivan opinion, in which the U.S. Supreme Court held that a city public safety commissioner could not win a liable suit against a newspaper over minor misstatements in an ad. That case set a lasting precedent that in order to prevail a public figure must prove actual “malice” – a statement made knowing that it is false or with reckless disregard to its truth or falsity – to win a libel case.
The limits of protected speech and the definition of a public figure were expanded when Hustler publisher Larry Flynt was sued by The Rev. Jerry Falwell after producing a fictional and pornographic “interview” with him in the 1980s. The Court ruled against Falwell, holding that the prominent minister was a public figure for First Amendment purposes.
Recent years, however, have seen fine-tuning in the direction of the plaintiffs. In 2017, Rolling Stone magazine agreed to pay $1.65 million to the University of Virginia chapter of a fraternity after falsely portraying its members as brutal gang rapists. The magazine capitulated because the reporter in this case was demonstrated to have practiced a degree of carelessness that could easily be judged as “malice.”
An ongoing, high-profile case will once again demonstrate the courts’ application of the “malice” standard and the rights of public figures in a libel suit. A federal court will allow former Rep. Devin Nunes to proceed on one claim made by MSNBC commentator Rachel Maddow on her eponymous TV show in 2021. Maddow’s statements concerned a mysterious package delivered to the House Permanent Select Committee on Intelligence more than a year before. Addressed to Nunes, the package had come from a Ukrainian politician believed to be close to the Putin government. Nunes’ staff delivered the package unopened to the FBI, while Rep. Nunes sent a letter to the attorney general notifying him of the receipt of the package.
In July 2020, Rep. Sean Maloney publicly asked Rep. Nunes if he had ever received materials from this individual, Andriy Derkach, suspected by U.S. intelligence of operating on behalf of the Kremlin. And if so, would Nunes share what he had received with the committee? Nunes declined to answer.
On her show, Maddow said that the mailer “is singled out by name by the Director of National Intelligence as someone under Vladimir Putin’s direct purview who helped run this organization targeting our election last year. Congressman Nunes accepted a package from him. What was in it?”
Maddow’s next made more problematic statements: “Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent.”
The U.S. District Court for the Southern District of New York refused to allow Rep. Nunes to sue over the statements that he had refused to answer questions, or that he had refused show the contents of the package to other members of the intelligence community. These statements are true (or true enough), the federal court reasoned, because to the average viewer the “intelligence community” would certainly cover the House intelligence oversight committee.
Where Maddow and her employer are at risk is the statement that Nunes refused to hand the package over to the FBI. The court found this statement “does not fall within the fair report privilege” because “it is not substantially true.” Thus, the court dismissed all of Nunes’ claims except this one.
Will Maddow’s false statement amount to “malice” in the eyes of the court? Would a loss by her lead to more careful reporting, or would it have a chilling effect on journalism? Once Maddow’s statement is litigated, the outcome will sharpen our understanding of how courts today judge a factual error, how they continue to apply libel law to public figures, and the implications of these judgments for the First Amendment.
This is a case to watch.
Doxing Donors in Arizona
The threats to donor privacy keep coming. In 2021, the U.S. Supreme Court ruled 6-3 in Americans for Prosperity v. Bonta against a California law that would have forced non-profit organizations to report the identities of their donors to the state. That bad idea has now wafted across the Colorado River to find new life.
Arizona’s Proposition 211, “The Voters’ Right to Know Act,” would require organizations that promote, support, attack, or oppose a candidate within six months of an election – or mounts any public communication that refers to a candidate within 90 days of a primary – to disclose the identities of donors who give more than $5,000.
Former Arizona Attorney General Terry Goddard has said that there is no evidence harassment of donors would be a problem. Does he not watch the news? To dismiss the danger of donors being “doxxed” is to ignore a pile of evidence as high as Camelback Mountain. A few years ago, Mozilla CEO Brendan Eich was forced out of his job when the California Attorney General mandated the disclosure of donors in support of Proposition 8, which supported traditional marriage. Small donors received death threats and envelopes containing white powder. Their names and ZIP codes were helpfully overlaid on a Google Map.
And don’t overlook the tense state of our political culture, one in which Rep. Steve Scalise received multiple gunshots and the husband of House Speaker Nancy Pelosi had his skull fractured by a hammer. In both instances, disturbed men acted on political impulses.
A chilling effect on the free exercise of one’s First Amendment rights need not come from violence. Exposure can heighten donors’ fear that they, or their businesses, will be singled out by vengeful regulators with political motivations or by activist boycotts. Whispered threats of cancellation can be just as effective as the cancellations themselves.
Tellingly, the group behind this measure – the Voters’ Right to Know Committee – discloses the names of small donors, but does not disclose in its most recent official campaign report the corporations and out-of-state PACs behind this ballot initiative.
Perhaps this committee’s “dark money” donors appreciate the words of Justice John Marshall Harlan II, who wrote in the NAACP v. Alabama decision that immunity from state scrutiny supports the rights of Americans “to pursue their lawful private interests privately and to associate freely with others.”
The Violent Threat to Free Expression
This month’s brutal assault on Indian-born British-American novelist Salman Rushdie was not just a violent attack on a prominent author. It was an attack on free expression itself.
In response to The Satanic Verses, a book Rushdie wrote in 1988, the supreme leader of Iran, Ruhollah Khomeini, issued a fatwa against the author. Since then, there have been numerous attempts on Rushdie’s life. This latest attack is just the most successful of them.
There has been no shortage of commentators who have stated in the same breath that, while the fatwa and assassination attempts were wrong, Rushdie should not have published a book that would offend millions of Muslims around the world. Any attempt to balance the interests of free expression with death threats will only cede territory to violence.
This month’s attack only further proves that speech rights around the world are increasingly threatened by political violence. If someone like Rushdie, who has had to flee his home and receive security, can still be targeted, so can anyone who says the wrong thing. Citizens of free societies should be able to disagree with one another, even stridently, without demonizing their opponents.
In 2020, Rushdie, along with other prominent figures, signed an open letter published in Harper’s Magazine slamming the spread of censorship and intolerance. The letter read: “The way to defeat bad ideas is by exposure, argument, and persuasion, not by trying to silence or wish them away.” Now, more than ever, the right to free expression around the world requires even greater defense.
Our senior policy advisors and former congressmen, Bob Goodlatte and Rick Boucher, wrote an important piece on the need for federal law to protect journalists.
Should the government be free to dig into the records, notes, phone logs and emails of journalists or subpoena them into federal court to catch a leaker?