Last week, amid the usual tsunami of grim news about inflation, mass shootings, the pandemic and war, news emerged that the New York Court of Appeals was considering whether the Bronx Zoo violated human rights. Happy, an Asian elephant who had lived there for more than four decades, confining her to part of a one-acre exhibit.
The Nonhuman Rights Project, which represents Happy, argues that she wants to make her own decisions about things like where to go and what to do, and that she is being illegally detained. They are asking for his release (into a sanctuary) through habeas corpus proceedings. Habeas corpus is a procedure that allows “persons” to challenge a detention. The first thing the court will have to decide is whether Happy – his 5,800 pounds – qualifies as a person.
Meanwhile, in the sordid and conveniently live-streamed wreckage of a libel lawsuit Johnny Depp is waging against his ex-wife Amber Heard, his lawyers argue that the Washington Post the op-ed she wrote about being a victim of domestic violence is free speech, protected by the First Amendment.
The First Amendment, ratified 231 years ago as part of the original Bill of Rights, is responsible for some of our most cherished freedoms. It’s also quite concise. Here it is, in full: “Congress shall make no law respecting the establishment of a religion or prohibiting the free exercise; or restricting freedom of speech or of the press; or the right of the people to assemble peacefully and seek redress from the government for their grievances.
An important point to remember about this is that it only applies to government actions, not those of private individuals or companies. It can be a bit confusing. Like, how does that apply then to the Depp/Heard thing, cut finger, bottle, rape, poo in bed? As it happens, PEN America, the venerable national literary organization, was in town last week at the American Writers Museum, launching a year-long traveling discussion series on this very topic: “Flashpoints: Free Speech in American History, Culture , and Society. ”
The PEN panel was moderated by Professor Brett Gadsden of Northwestern University and included University of Chicago Law School professor and First Amendment expert Geoffrey R. Stone, who received a lesson on the limits of the word of his own students in 2019 that ended with a vow never again to illustrate the doctrine of battle words by telling a story that used the N-word. (“It’s not about censorship, or someone telling me what to do or what not to do,” Stone said. Inside Higher Education then. “That’s something the students enlightened me on.”)
During the panel, Stone noted that the First Amendment had been around for 150 years before it came to the attention of the Supreme Court. And that only happened because President Woodrow Wilson, who had won the election promising to stay out of World War I, turned around and went to war, then wanted to suppress the opposition. Congress cooperated by passing the Espionage Act of 1917, which Stone said “made it a crime for anyone to criticize the government, the war, the conscription, or the military in any way likely to undermine support at war”.
It was a very large broom.
Convictions under the Espionage Act brought the first First Amendment cases to the Supreme Court, and the first (including the conviction of Socialist Party leader and former presidential candidate Eugene Debs) were upheld in unanimity. But, after a brooding summer break, two legendary members of the court, Oliver Wendell Holmes and Louis Brandeis, returned with different positions. They had become convinced that freedom of speech is fundamental to American democracy and that people should have the opportunity to criticize the government unless “such criticism creates a clear and present danger of grave harm to the nation”, he said. Stone said.
From then on, Holmes and Brandeis dissented on all convictions under the Espionage Act. It took until the 1960s for the rest of the court to follow suit, but since then, Stone said, “the court has never affirmed the conviction of an individual for engaging in a discourse on the theory according to that this speech could induce others to engage in illegal acts”. conduct.”
We are now at a turning point, however, with the most conservative court we have seen in a century, Stone said. “Given the makeup of this tribunal and the length of their tenure, we can expect revisions in the interpretation of women’s rights, individual rights, sexual freedom and the definition of obscenity that will transform this nation into much more of what it was in the 1950s than what it is today.
“One thing we can do is pass state laws that recognize those rights,” Stone said. But if, for example, the court decides to extend constitutional rights to the unborn child, even state laws may be of limited protection. What they would do is buy time.
What about Johnny Depp and Happy? In a post-panel follow-up, Stone said he was unfamiliar with these cases, but “defamation is, by definition, a matter of free speech. This is because the government sets the rules that determine whether someone can sue, and the First Amendment determines whether those rules are constitutional or not. Happy, however, may be out of luck: “If they’re essentially claiming that Happy has constitutional rights, that’s a no-start.”
“Animals have no constitutional rights.”