Many Americans voiced their outrage at the recent Casey Anthony verdict. Some thought she was guilty and wondered what in the world was going through the minds of the 12 jurors. Some jurors are talking, and some may be willing to share their thoughts in a book. However, Florida Representative Scott Randolph (D-Orlando) wants to put legislative duct tape over the mouth of the jurors or at least their word processors. He says that the jurors are free to talk about their experience, they just can’t publish it until he says so. What makes Mr. Randolph think he has such authority? Does he not understand that free speech is a right of the individual and not a privilege doled out by government? Will the First Amendment be another victim of the Casey Anthony saga?
The First Amendment is not the first one by accident. Our founders believed the rights protected by this monumental Amendment were foundational to Liberty. Daniel Webster, one of the greatest orators of our time and extraordinary founding father said, “If all my possessions were taken from me with one exception, I would choose to keep the power of communication, for by it I would soon regain all the rest.” So why, is Representative Scott Randolph attempting to weaken the First Amendment?
The First Amendment actually charges the government to protect five rights held by the people:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble and to petition the Government for a redress of grievances.
The right to speech and press are fundamental to the concepts of Liberty. Where would we be without the pen of Thomas Paine and his pamphlet “Common Sense,” which helped stir the people to throw off the bonds of a tyrannical government? John Adams reportedly said of Paine “Without the pen of the author of ‘Common Sense,’ the sword of Washington would have been raised in vain.” Such writings were suppressed under the dictatorship of Adolf Hitler. Joseph Goebbels’ Ministry of Public Enlightenment and Propaganda acted as a central control point for all media, private and public, issuing orders as to what could and could not be printed. Anyone who crossed Goebbels’ ministry were routinely imprisoned or shot as traitors. Our Constitution stands as a sentinel to protect Americans against such extreme tyranny.
Besides the ignorance of Constitutional principles and Constitutional history, the primary problem here is reactionary legislation. In the aftermath of the Casey Anthony trial we were immediately bombarded with reactionary legislation. First came the proposition for Caylee’s law; a law that makes it a felony offense to not report a child missing within 24 hours of the child’s disappearance. Sounds like a great idea, I’m sure, but trust me, creating laws based upon reactions to social injustice is never a sound legislative practice. Good legislation takes an informed and reasoned process. Imagine you were the parent of a rebellious teenager who frequently makes himself “unaccountable”. Does the parent have to suffer the embarrassment of dealing with a private family issue publicly, under the threat of felony prosecution? What if the parent has been told by the teen that he is staying the night at a friend’s house, when in fact, he is actually engaging in dangerous behavior that results in his death at the hand of another? Suppose further that the parent believes the child to be on a weekend trip with friends and it is later determined that he has been murdered. Do we now prosecute this parent for not reporting the child missing because under the law the parent “should have known” the child was missing? Now, if we want to create a law that makes it a crime to not report your child’s known death (more in line with the facts of this case), I can understand the foundation for that law.
Now Rep. Scott Randolph is proposing more reactionary legislation in the wake of the Casey Anthony trial. Only this legislation is a direct attack on the very fundamental principles of the First Amendment. Randolph proposes legislation that allows jurors to speak of their experience in the trial process but prevents them from contracting with publishers to write about it. The premise is that jurors should not be able to profit from their experience as a juror. Some might ask, “What is wrong with that?” First it is illogical. Mr. Randolph suggests a cooling off period of 270 days will prevent jurors from profiting from their experience. The desire to profit and the thirst for drama will not end after 270 days. It will only delay the inevitable. What then? Does Mr. Randolph then readdress the issue and make legislation to extend that “cooling off” period, or worse yet a permanent gag order? Where does this legislation stop? What else must I not write about or profit from?
The First Amendment is clear; the Government shall make no law abridging the freedom of speech or press. That word “abridge” means “to lesson, diminish, deprive, or cut off”. From a Constitutional perspective Rep. Randolph has no right to push legislation that would diminish any person’s right to free speech or press. I am certain Mr. Randolph would argue that he is not interfering with the First Amendment; he is interfering with the profiting from that form of speech. In the article outlining the plan for this legislation, Randolph states, “The purpose of this legislation is to preserve the integrity of the jury process. It balances the First Amendment freedom of speech with the Sixth Amendment guarantee to a fair trial.” Is Mr. Randolph suggesting that jurors are somehow manipulating the verdicts in order to create situations where they will optimize their profits? If so, then book deals are not the problem, the problem goes much deeper than that. The solution is not limiting the Constitutional rights of the people. You will not prevent profiteering by “cooling off” periods, you will however succeed in “lessoning, diminishing, depriving, and cutting off” the First Amendment rights of the people. Removing or altering Constitutional Rights is NEVER the solution to a moral deficiency.
Alexander Hamilton stated in the debate over the incorporation of the Bill of Rights in our Constitution, that enumerating the rights inherently held by the people would be dangerous. In Federalist Paper 84, Hamilton states, “What is the liberty of press? Who can give it any definition which would not leave the utmost latitude for evasion?” Hamilton was afraid that by including an enumeration for the protection of speech and press would inevitably serve as a handle “which would be given to the doctrine of constructive powers” and would furnish to “men disposed to usurp, a plausible pretense for claiming power.” What power would be claimed? The power to regulate a right and “balance” that right with another in the name of fairness, equality, safety… Any legislation, according to Supreme Court precedent, that is a prior restraint on free speech and creates “chilling effect” on speech is unconstitutional.
Reactionary legislation is often bad. Reactionary legislation that interferes with a Constitutional Right is worse. The fact that we have become unmoored from or Constitutional principles and are ignorant of its history is why I wrote my book and created the DVD seminar; perhaps I should forward them to Mr. Randolph.