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This is the twelfth in a series of interviews I’m conducting with lawyers and scholars who’ve made a mark on freedom of expression. Follow me @jonathanwpeters on Twitter.
For the past 27 years, William Bennett Turner has taught First Amendment courses at the University of California at Berkeley. In a legal career that spanned 45 years, he argued three cases at the U.S. Supreme Court, including two in the First Amendment area: Procunier v. Martinez, which invalidated regulations that allowed sweeping censorship of inmate mail in the California prison system, and Houchins v. KQED, which said the First Amendment does not guarantee the press a right of access to jails greater than that of other people. Turner also argued more than 40 cases in lower appellate courts and served as lead counsel in a variety of state and federal trials. He has published dozens of articles in newspapers and magazines, and he was the legal affairs correspondent for KQED. Turner is the author of “Figures of Speech: First Amendment Heroes and Villains.”
What’s the most serious threat today to free expression?
Ignorance—the indifference to how and why we protect civil liberties. The public is not well informed about why we protect free speech, and lawmakers, if not well informed, are not paying attention and are willing to sacrifice free speech principles for political purposes.
What can we do, if anything, to address that ignorance?
Justice O’Connor is trying to stir things up to get kids in school to learn the basics of how our system works and why it matters, including lessons in civil rights and civil liberties. Even people with college degrees and law degrees often don’t get it. They never learn or don’t remember why we protect free speech.
Is there an effective way to impart those lessons? Of course, effectiveness would depend on the audience, whether it’s young people or adults, but are some approaches better than others when you’re discussing the role of civil liberties in democracy?
I’m no expert on pedagogy and what makes people learn, but these days students expect you to be something of an entertainer. You don’t get their attention simply by lecturing or by putting up Power Point slides. You have to involve them in the learning process so they can relate to the material in a more personal way.
A recent study found that 13 percent of Americans believe the First Amendment goes too far. Do you think it goes too far in any regard?
No, not as interpreted by the Supreme Court—and what the Supreme Court says is what the First Amendment means.
Are there areas where the First Amendment does not go far enough?
Yes, three weaknesses in First Amendment protection come to mind. The first is Houchins v. KQED, which I argued at the Supreme Court, and the issue was whether there’s a First Amendment right of access to government information or facilities. The justices decided there was no such thing. That comes as a surprise to some people, because other countries, notably those in Scandinavia, have a right of access to government information enshrined in their constitution. All we have is the Freedom of Information Act, which is useful but also limited—and riddled by exemptions.
A second weakness is the failure to provide protection for reporters and their confidential sources. This stems from the Supreme Court’s decision in Branzburg v. Hayes, in which the justices said there was no First Amendment privilege for reporters to refuse to identify their confidential sources. That makes whistleblowing dangerous, and the public ends up deprived of information they ought to know.
The third area of concern is national security. The courts are sensitive—overly sensitive—to government arguments that if we allow certain things to be published, then national security will be threatened. A recent case that comes to mind is Holder v. Humanitarian Law Project, in which the justices upheld the “material support” provision of the PATRIOT Act. It prohibits giving “material support” to groups designated as terrorists. In that case, a group of scholars wanted to give a Kurdish organization advice about resolving disputes peacefully. Their advice had nothing to do with terrorism, but the Supreme Court said this pure speech violated the “material support” provision.
Some say the Roberts court is a friend of free speech, others say it’s a foe, and many say it’s somewhere between those extremes. What’s your take?
Mostly somewhere between those extremes. I was surprised and pleased that Roberts himself wrote two important First Amendment decisions that you might have expected him to decide the other way: Snyder v. Phelps, the funeral-protest case, and United States v. Stevens, the case about depictions of animal cruelty. And, meanwhile, Scalia authored Brown v. Entertainment Merchants Association, the case about violent video games. All three were important because of the free-speech principles they vindicated in quite sophisticated ways.
In addition, you can debate the merits and wisdom of Citizens United, and if all you care about in the world is the First Amendment, then Citizens United is a great decision. But we have other societal interests and values that received short shrift in the opinion, and I view Citizens United more as a pro-business case than a free-speech case.
Lawyers and judges have struggled to some degree to apply free-speech principles in the digital age—to determine for privilege purposes who qualifies as a journalist, to resolve jurisdiction issues in online libel cases, to evaluate the role of the hot-news doctrine in an ecosystem of aggregation. Do we need a new First Amendment for the 21st century?
No, we’ve got a Supreme Court that can interpret the First Amendment to accommodate new technologies and new situations. The courts, in general, have done a pretty good job of handling new technologies, and fundamentally the free-speech principles that apply to old technologies also apply to new ones. They are the same regardless of the medium of expression.
Shifting gears, you’ve published dozens of articles in newspapers and magazines, and you were the legal affairs correspondent for KQED. If you were to characterize the state of legal journalism and commentary, on a scale of good to bad, how would you characterize it?
What I read is good. I read the New York Times, and Adam Liptak does a fine job covering the Supreme Court. I read the San Francisco Chronicle, and Bob Egelko does a fine job covering the courts. I read Jeffrey Toobin—his books and New Yorker articles—and he does a fine job of painting a picture of the legal system. But every once in a while, you see an article that just doesn’t get it and mischaracterizes a decision for the public. I’m sure those problems are common in some publications, but I don’t read them.
What about the news coverage surrounding the healthcare decision last term? Even some of the noted legal correspondents struggled to report that decision in a breaking-news format. And at least two major outlets, CNN and Fox, misreported the outcome of the case.
A lot of them got it wrong, yes, but it was the deadline pressure, the pressure to be first. It’s both unusual and understandable that so many of them struggled. When I was a correspondent for KQED, I would get Supreme Court decisions on the wire in the late morning, and I would be on the air in the early evening. Even with that format, where I had more time than the correspondents who cover the Court today, I didn’t always have time to read the whole decision, much less make sense of it and get reactions to it from experts. Nowadays, that whole process is accelerated, and you have to do it within seconds or minutes. I admire the people who try.
You argued Procunier v. Martinez at the Supreme Court, a case that’s proven to be the high water mark of prisoners’ rights. It established a baseline for reviewing inmate First Amendment claims. Since then, that baseline has been curtailed, and the water seems to be receding, with courts giving a high level of deference to prison officials in cases involving inmate speech. To the extent the water is receding, why is it receding?
It’s partly a floodgate problem. The justices probably feared that unless they narrowed inmate protections, they would be flooded with inmate complaints and lawsuits, which would clutter the federal courts, about inmate correspondence, publications that inmates want to read, and so on. It’s regrettable that the justices have narrowed those protections, and it’s unnecessary, but it’s not fatal to our democracy.
The high level of deference that the courts have given to prison administrators—is it wise or proper?
No. Honest prison administrators will tell you that they want to run their own ship, but they also will tell you that prison administrators greatly exaggerate the security concerns that their lawyers have used to enlarge their power and discretion. They don’t need that much power and discretion.
I did a case 10 or 15 years ago involving the right to televise executions, and our main expert witness was Ray Procunier, the villain of the case we just discussed, Procunier v. Martinez. At the time, he was the former director of the California prison system, and he was strongly in favor of the death penalty. But he testified for us that prison officials who opposed the televising of executions had based their opposition on exaggerated and irrational fears. He said there was no security reason for prohibiting the televising of executions and that much of the deference prison officials receive is misplaced.
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