FIRE pushes for a posthumous pardon: A symbolic act with a real-world wake-up message — First Amendment News 428

So what’s the point of a posthumous pardon? I mean, it sure as hell isn’t going to help the dead. They already paid the wrongful dues. It may help the living win favor (or attempt to win favor), as in the case of President Donald Trump’s ironic 2021 pardon of the feminist Susan B. Anthony, if only to curry favor with anti-abortionists who champion Anthony’s “pro-life” views. Sometimes such pardons are given to settle a factually contested set of circumstances: Did the rock singer Jim Morrison actually come on stage during a 1969 concert and expose himself? Thus in 2010, on the occasion of Morrison’s birthday, Florida Governor Charlie Crist granted a posthumous pardon for The Doors’ lead singer.

Sometimes posthumous pardons are granted to draw attention to egregious past violations of our free speech freedoms. Two notable examples of that are New York Gov. George Pataki’s 2003 posthumous pardon of Lenny Bruce, who had been convicted of obscenity, and Montana Gov. Brian Schweitzer’s 2006 posthumous pardon of 78 people convicted of sedition amid the anti-German hysteria of the First World War.

And sometimes a posthumous pardon is sought to both draw attention to a past First Amendment wrong and to alert people to the ongoing perils of an old law with modern-day potential for abridging our freedoms, which brings me to FIRE’s petition to President Joe Biden to posthumously pardon D.M. Bennett (1818-1882).

A symbolic gesture with real-world implications

To help set up the historical context and the contemporary threats posed by an old law, consider the following statement released by FIRE:

In 1879, newspaper publisher D.M. Bennett was arrested, convicted, and sentenced to thirteen months of hard labor in Albany prison for violating the Comstock Act. His crime? Officially, it was for mailing a copy of an anti-marriage tract titled “Cupid’s Yokes, or The Binding Forces of Conjugal Life,” which Anthony Comstock considered obscene. In reality, Bennett was targeted because he actively campaigned for the repeal of the Comstock Act in the pages of The Truth Seeker, the freethought magazine he had founded, and for which Roderick Bradford currently serves as chief editor.

We cannot allow the use of Victorian-Era laws to undermine the rights of American citizens. That’s why the Foundation for Individual Rights and Expression filed a petition on June 17 on behalf of freethought publisher Roderick Bradford, calling on President Joe Biden to posthumously pardon one of the Comstock Act’s prominent victims, D.M. Bennett.

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Here are a few excerpts from the petition to the President:

Pursuant to Article II, Section 2, Cl. 1 of the United States Constitution and 28 CFR § 1.1, Roderick Bradford, publisher of The Truth Seeker, respectfully requests a posthumous pardon for DeRobigne Mortimer Bennett (“D.M. Bennett”), the founder of The Truth Seeker, who was convicted in 1879 of violating the “Act for the Suppression of Trade in and Circulation of Obscene Literature and Articles of Immoral Use,” Act of March 3, 1873, ch. 258, § 2, 17 Stat. 599, commonly known as the Comstock Act. 

The Comstock Act has been much in the news of late because of efforts to revive its long-moribund provisions in ongoing debates over freedom of expression, abortion, and contraceptives. Although framed as an obscenity law, the Act was so broadly worded that it was used to prosecute literature, art, scientific and medical texts, and, in Bennett’s case, the publisher of a freethought journal. It was also wielded as a weapon against opponents of the Comstock Act who, like D.M. Bennett, advocated for its repeal. Developments in constitutional law through the twentieth century rendered the statute largely a dead letter, but recent events are threatening to breathe new life into this obsolete law. 

By granting this pardon, the President would help right the injustice resulting from D.M. Bennett’s wrongful prosecution and conviction, and at the same time send the important message that Victorian Era laws should not be revived to undermine Americans’ individual rights. As philosopher George Santayana warned, “those who cannot remember the past are condemned to repeat it.” In this regard, a posthumous pardon for D.M. Bennett would be an act of remembrance that may help forestall reliving a lamentable past. 

• See also Susanna Granieri, “Author Amy Werbel on the Parallels Between the Comstock Era and Modern-Day Censorship,” First Amendment Watch (June 12)

Why is this petition important today?

To answer that question, let me draw from what is set out in the petition itself:

A pardon of D.M. Bennett would serve as a reminder of what happens when laws to enforce public morality override constitutional protections for freedom of expression. Bennett’s prosecution starkly illustrates what can go wrong when enforcement of the law becomes politicized to crush political opponents. Admittedly, a posthumous pardon, by definition, cannot alter the plight of the deceased. In that narrow sense, such a pardon comes too late to save a living person from the acknowledged wrongs committed by the government. But a posthumous pardon does have other important and socially beneficial effects: 

• It corrects the institutional record by publicly expunging the guilt associated with the unlawful or unconstitutional actions of the government. 
• It has precedential value as an official declaration that such unlawful or unconstitutional action will not be repeated in the future. 
• It corrects the reputational memory of the deceased person by clearing his or her name in the historical record. 
• It serves as a public apology — an admission by the government that it once exerted its powers in ways that cannot be reconciled with the supreme law of the land. 
• And, finally, it benefits the pardoner by placing him on the right side of history in proclaiming and upholding essential First Amendment freedoms. 

This petition is important because no battle to preserve our rights is ever truly won, as Bennett’s case so well illustrates. Even under the undeveloped constitutional protections of the late nineteenth century, Bennett’s prosecution was a miscarriage of justice, and the evolution of First Amendment and constitutional law through the twentieth century rendered prosecutions like Bennett’s entirely unthinkable now. A December 2022 opinion of the Office of Legal Counsel described the law in question as “the handiwork of Anthony Comstock — ‘a prominent anti-vice crusader who believed anything remotely touching upon sex was . . . obscene’ — who successfully lobbied Congress and state legislatures in the nineteenth century to enact expansive laws ‘to prevent the mails from being used to corrupt the public morals.’” Office of Legal Counsel Opinion, Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions, 46 Op. O.L.C. __ , slip op. at 3 (Dec. 23, 2022) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 70 n.19 (1983)). The OLC opinion observed the Comstock Act “is perhaps best known for having prohibited the distribution of a wide range of writings until courts and the Executive Branch determined that the Free Speech Clause of the First Amendment significantly limited the permissible reach of the law.” Id. 

The lawyer behind the petition 

Given the importance of correcting a historical wrong and the need to draw attention to the modern dangers posed by the Comstock Act, FIRE enlisted the perfect person to draft the petition: First Amendment lawyer and author Robert Corn-Revere, the same lawyer I enlisted 20 some years to present a petition to posthumously pardon the uninhibited comedian Lenny Bruce.

Corn-Revere joined FIRE from the law firm of Davis Wright Tremaine where he was a partner for 20 years specializing in freedom of expression and communications law. Before his time at DWT, he was a partner at Hogan & Hartson and served as legal advisor and later chief counsel to Federal Communications Commission Chairman James H. Quello.

In 2021, Cambridge University Press published his book, “The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma,” which explores how free expression became a part of America’s identity. He also co-authored the three-volume treatise, “Modern Communication Law” published by West Group.

Related

• Corn-Revere’s 2003 petition to posthumously pardon Lenny Bruce

Justices unanimous in First Amendment trademark case — but differ on reasoning 

• Ronald Mann, “Supreme Court rejects ‘Trump too small’ trademark,” SCOTUSblog (June 13)

The court on Thursday unanimously rejected an attempt to force the Patent and Trademark Office to accept the registration “Trump too small” as a trademark for T-shirts mocking the former president. Steve Elster had argued that the provision of the Lanham Act that directs the PTO to refuse to register any mark that identifies “a particular living individual” violated his First Amendment rights. Although the justices splintered sharply on their reasoning, all agreed that the First Amendment permits the PTO to refuse to register the mark.

All nine justices agreed on the basic framework of analysis, which appears early in the principal opinion, written by Justice Clarence Thomas. Writing in that part of his opinion for six justices (all but Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson), Thomas explained that the restriction is viewpoint-neutral but not content-neutral. As he observed, the justices “have twice concluded that trademark restrictions that discriminate based on viewpoint violate the First Amendment.” The earlier restrictions were viewpoint based because they “prohibited trademarks based only on one viewpoint, while permitting trademarks based on other viewpoints.” The ban here, by contrast, is viewpoint neutral — Thomas pointed to the PTO’s refusal of trademarks such as “Welcome President Biden,” “I Stump for Trump,” and “Obama Pajama” — rejections that doubtless disappointed a broad range of political viewpoints. Having said that, Thomas explained that the restriction still is content-based, because it implements a ban based on the content of the trademark: “The names clause turns on the content of the proposed trademark — whether it contains a person’s name. If the trademark does contain a person’s name, and the registrant lacks that person’s consent, then the names clause prohibits registration.”

The separate opinions show much less devotion to the historical approach. First, Justice Brett Kavanaugh and Chief Justice John Roberts joined most of Thomas’s opinion, but Kavanaugh wrote a brief concurrence explaining that the two of them were open to the possibility that “a viewpoint-neutral, content-based trademark restriction might well be constitutional even absent such historical pedigree.”

Second, and more pointedly, Justice Amy Coney Barrett (joined in large part by Sotomayor, Kagan, and Jackson) wrote to explain her position that it was “wrong twice over” to argue that “history and tradition” alone can “settle the constitutionality of the names clause.”

Related

• “Supreme Court Upholds Prohibition On Registration Of Trademarks That Incorporate Personal Names Without Consent,” Gibson Dunn (June 13)

Today, the Supreme Court held that the Lanham Act’s prohibition on registration of trademarks that include a living person’s name without that person’s consent does not violate the First Amendment.

[ . . . ] 

Although the Court’s judgment was unanimous, the fractured opinions demonstrate the Court’s disagreement about how to assess the constitutionality of content-based trademark registration requirements. The majority focused on history and tradition. 

Justice Barrett in a separate opinion (joined by Justice Kagan in full and by Justices Sotomayor and Jackson in part) expressed the view that content-based restrictions should be upheld “so long as they are reasonable in light of the trademark system’s purpose of facilitating source identification.” 

Justice Sotomayor in a concurring opinion (joined by Justices Kagan and Jackson) said the Court should look to the “well-trodden terrain” of “trademark law and settled First Amendment precedent.”

Today’s ruling distinguished other recent Supreme Court decisions holding that restrictions on trademark registrations do violate the First Amendment when they discriminate based on viewpoint.

First Amendment Watch interview with BLM activist

• Susanna Granieri, “BLM Activist DeRay Mckesson on Protecting His Right to Protest,” First Amendment Watch (June 4)

Black Lives Matter activist DeRay Mckesson has been involved in litigation for nearly eight years since a Louisiana police officer was reportedly struck in the head by a rock during a protest in Baton Rouge in July 2016. The officer sued Mckesson, claiming his involvement as an organizer in the protest made him liable.

The lawsuit against Mckesson, who told First Amendment Watch that he was not the organizer of the July 2016 protest, was filed in November 2016 by the officer, who was initially known as John Doe in court records but has since been identified as Officer John Ford.

The protest, which began outside of the Baton Rouge Police Department on July 9, 2016, arose after the killing of Alton Sterling, a 37-year-old Black man, by a white police officer in Baton Rouge days earlier. 

Ford’s lawsuit claimed that Black Lives Matter and Mckesson were responsible for his injury because Mckesson, according to the lawsuit, “incited the violence” and “was in charge of the protest.”

But a federal judge dismissed the lawsuit, stating that Black Lives Matter was not an entity that could be sued, and found that Mckesson “solely engaged in protected speech” during the protest. The U.S. Court of Appeals for the Fifth Circuit reversed that decision, and Mckesson appealed to the Supreme Court which sent the case back to the Fifth Circuit for review if Mckesson, under state law, could be sued. 

The Fifth Circuit then ruled in June 2023 that Mckesson’s involvement in organizing the protest meant that it’s “plausible that Mckesson knew or should have known” that a police response to the protest could lead to violence and injuries. It also rejected Mckesson’s claims that the First Amendment protects him from liability under state law. 

Last month, the Supreme Court rejected another appeal from Mckesson in which Justice Sonia Sotomayor noted that the court’s “denial today expresses no view about the merits of Mckesson’s claim.”

The issue before the court was whether a protest leader or organizer could be held liable for any illegal or violent actions committed by protest attendees, despite a leader’s possible lack of knowledge of such actions. 

First Amendment Watch spoke with Mckesson about the legal dispute. He described the day of the protest, rejected claims that he was an organizer of the demonstration, and expressed concern over the impact of his case on the right to protest.

New scholarly article on fiction and defamation

• Collin O’Neil, “Fiction, Defamation, and Freedom of Speech,” Journal of Free Speech Law (June 10)

Speech damages someone's reputation when it leads others to believe that that person has done something that reflects poorly on their character. When that belief is also false the reputational damage is undeserved, and it is the point of American defamation law to protect individuals from suffering such undeserved reputational damage.

It is easy to understand why individuals would need protection from false and derogatory claims made about them in works of nonfiction, such as journalism, documentaries, and biographies. But it is not immediately clear why individuals would also need protection from fiction. Although authors of fiction often base their fictional characters on real people, they do not typically make real people characters in their stories. Even when they do put real people in their stories and depict them as doing bad things, the audience is still usually meant only to imagine the real people doing those bad things.

Nevertheless, some works of fiction are not only about real people but also do real and undeserved damage to their reputations. It may not be true, as has often been alleged, that Aristophanes's comedy The Clouds gave Socrates the reputation for rejecting the gods and corrupting the young that later led to his execution. But readers of parodies of news articles published on sites like The Onion and The Babylon Bee are sometimes duped, especially when they are already inclined to think poorly of the public figure that is being ridiculed.

Of course parodies are believed only when they are not recognized as parodies. But there are other genres of fiction that mix facts into the story, such as biofiction, biopics, and docudramas, and it is not always easy for audiences to distinguish what the author is making up from what the author is, or ought to be, trying to get right.

The biographical drama Amadeus suggested that Salieri poisoned Mozart, re-popularizing an old rumor about Salieri that the filmmakers must have at least strongly suspected was false. Salieri, being dead, is in no position to bring a lawsuit. But the villain of the docudrama When They See Us, Linda Fairstein, is alive and is suing Netflix and Ava DuVernay, the director, for defamation.

Fairstein was chief of Sex Crimes Prosecution during the investigation and prosecution of the "Central Park Five," five Black and Latino teenagers who were convicted of the beating and rape of a jogger in Central Park but who were exonerated years later after a serial rapist whose DNA was found at the scene confessed to the crime and said that he had acted alone. Fairstein alleges that she was defamed in several scenes in the docudrama, including in a scene where she is depicted as concealing potentially exculpatory evidence from the defense and a scene where she is depicted as instructing officers to use harsh interrogation techniques. As a result of her depiction in When They See Us, Fairstein's publishing contract was canceled (she had become a best-selling mystery writer since leaving the DA's office), her literary agents dropped her, #cancellindafairstein trended on Twitter, and Glamour magazine expressed regret they had named her Woman of the Year in 1993.

As the docudrama When They See Us makes clear, fiction about real people can do serious damage to their reputations. It is another question whether it is ever appropriate to hold an author of fiction legally liable for that damage. One aim of defamation law may be to reflect our pre-legal moral duties of care to avoid damaging others' reputations. If so, one important consideration for determining how defamation law should handle fiction is whether and when an author of fiction would count, morally speaking, as having wrongfully damaged someone's reputation.

But defamation law is also answerable to another moral value, namely, freedom of speech, that may be in tension with these pre-legal duties of care. Even when it is plausible that an author of fiction has wrongfully damaged someone's reputation, there might still be a reason of freedom of speech, even an overriding reason, to shield such an author from liability.

This Article will address the question of what limits, if any, freedom of speech would place on holding authors liable for the reputational damage they cause with fiction. By “freedom of speech” I will not be referring to the First Amendment but rather to one conception of the moral idea underlying it. According to this conception, the limits that freedom of speech places on the scope of authors' liability for causing false and defamatory beliefs are whatever limits are necessary to adequately protect our interests as potential authors and audiences, and whose costs are acceptable in terms of other interests. To apply this conception, it will be necessary to identify our interests as potential authors of and audiences for fiction about real people, and to assess how these interests would be affected by different limits.

Ultimately, I will argue that freedom of speech is consistent with holding authors liable for reputational damage caused by their violations of fiction’s “veracity rules” and for reputational damage caused by mistakes that their target audience would be expected to make. But liability for beliefs that are traceable to mistakes that only an author’s incidental audience would be expected to make is, I will argue, prohibited by freedom of speech, so long as the costs of that protection remain acceptable.

More in the news

• Eugene Volokh, “Is Promotion of Free Services ‘Commercial Speech’ for First Amendment Purposes?,” The Volokh Conspiracy (June 17)
• “NY Governor’s Subway Mask Ban Proposal Sparks Debate Over Right to Anonymous Protest,” First Amendment Watch (June 17)
• Caity Coyne, “ACLU Urges Six WV Schools to Review Student Policies Violating First Amendment,” The 74 (June 17) 
• Dan McCaleb, “Tennessee Star editor heads to court to defend 1st Amendment rights in Covenant School shootings case,” The Center Square (June 16)
• Leyi Huang, “Saratoga Springs violated BLM protesters First Amendment rights, Attorney General says,” CBS 6 Albany (June 14)

2023-2024 SCOTUS term: Free expression and related cases

Cases Decided

• O’Connor-Ratcliff v. Garnier 
• Speech First, Inc. v. Sands (certiorari granted, judgment re the bias policy claims vacated, and case remanded to the Court of Appeals for the 4th Circuit with instructions to dismiss those claims as moot) (Thomas & Alito, dissenting)
• National Rifle Association of America v. Vullo 
• Vidal v. Elster

Review granted

• Vidal v. Elster (argued Nov. 1)
• O’Connor-Ratcliff v. Garnier (decided March 15, see below under “State action”)
• Moody v. NetChoice, LLC & NetChoice, LLC v. Paxton  (argued: Feb. 26)
• National Rifle Association of America v. Vullo (argument: March 18)
• Murthy v Missouri (argument: March 18)
• Gonzalez v. Trevino (argued March 20)

Pending petitions

• Murphy v. Schmitt
• Villarreal v. Alaniz 
• In Re First Choice Women's Resource Centers, Inc.
• Pierre v. Attorney Grievance Commission of Maryland
• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu
• Pierre v. Attorney Grievance Commission of Maryland
• O’Handley v. Weber

State action

• Lindke v. Freed (Barrett, J., 9-0: “The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.”)
• O’Connor-Ratcliff v. Garnier (Per Curiam: 9-0: “We granted certiorari in this case and in Lindke v. Freed (2024), to resolve a Circuit split about how to identify state action in the context of public officials using social media. Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.”)

Review denied

• Frank v. Lee
• Mckesson v. Doe (Separate statement by Sotomayor, J.)
• Brokamp v. James
• Griffin v. HM Florida-ORL (application for stay denied)
• M. C. v. Indiana Department of Child Services
• Spectrum et al v. Wendler
• Porter v. Martinez
• Molina v. Book
• Porter v. Board of Trustees of North Carolina State University
• NetChoice, LLC v. Moody
• Alaska v. Alaska State Employees Association
• X Corp. v. Garland
• Tingley v. Ferguson (Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (separate opinion) Justice Alito, dissenting from the denial of certiorari. (separate opinion)
• Jarrett v. Service Employees International Union Local 503, et al
• Sharpe v. Winterville Police Dept.
• Winterville Police Department v. Sharpe
• Stein v. People for the Ethical Treatment of Animals, Inc., et al.
• Blankenship v. NBCUniversal, LLC
• Center for Medical Progress v. National Abortion Federation
• Frese v. Formella
• Mazo v. Way

Free speech related

• Miller v. United States (pending) (statutory interpretation of 18 U.S.C. § 1512(c) advocacy, lobbying and protest in connection with congressional proceedings) // See also Fischer v. United States (argued April 16)

Last scheduled FAN

FAN 427: “Comedy in the time of cancel culture”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.