In this excerpt from his front-page article from the most recent Freedom to Read Foundation News, attorney Michael A. Bamberger gives his thoughts on the state of free speech in 2013. FTRF members can read the entire article online at http://www.ftrf.org/?current_newsletter. FTRF News is issued quarterly to all members of the Freedom to Read Foundation and to newsletter subscribers.
The beginning of a new calendar year following both
presidential and local elections is a good time for all of us engaged in the
regular day-to-day protection of First Amendment rights in individual
situations to step back and consider, more broadly, where we are and where
attacks on free speech rights are likely to occur in 2013.
Looking back at the 2012 party platforms, it is interesting
that, while the 2008 Democratic platform spoke of enabling parents to block
content objectionable to them on TV and online, and of increasing enforcement
resources to counter child predators on the Internet, the 2012 Democratic
platform mentioned neither of these matters. The 2012 Republican platform called
for vigorous enforcement of all forms of pornography and obscenity statutes,
but it is notable that First Amendment issues were not central to the campaign
of either candidate. Perhaps this reflects the fact that recently there has
been less pressure at the federal level to pass censorial legislation. Thus, it
is likely that, at the federal level, during 2013, there will not be extensions
of laws directly criminalizing speech.
However the continuing unnecessary classification, as
"secret,” of federal governmental speech and extensions of the scope of privacy
laws also constitute restrictions on free speech. In each case there is a
countervailing interest, but both classification and privacy laws can be used
to limit communication and discussion of matters of public interest and
concern. Those of us concerned with free speech must be alert to the dangers of
With respect to Internet freedom, all this is complicated by
the global nature of the medium. The First Amendment does not apply to those
outside our borders. Governmental restrictions elsewhere in the world,
particularly restrictions not obviously censorious (such as privacy
restrictions, which are broader in other parts of the world including the UK
and the EU), can have significant chilling effects on US-based speakers on the
Internet, especially speakers who have a presence in the relevant foreign
Michael Bamberger is General Counsel of the Media Coalition. Among his many cases, he served as counsel in Hudnut v. American Booksellers Association, a challenge to an overly restrictive Indianapolis anti-pornography ordinance. In 1985, the Supreme Court affirmed the lower courts’ decisions to strike down the ordinance as unconstitutional.
Bamberger was the recipient of FTRF’s Roll of Honor Award in 2012.