TALDF CASE STUDY: SPRINGFIELD, NJ-Part II
Last month, the Springfield Free Public Library bravely withstood pressure from Armenian American organizations to censor a program held in one of its public meeting rooms. Many felt that this was the end of the matter – free speech had carried the day. However, the TALDF was soon notified that some of the original protestors sought to keep the matter alive in two ways: by requesting an apology from the library’s board for having removed from the public meeting room a photograph that was part of a Holocaust exhibit then being displayed at the library (which had been deemed inconsistent with the April 20 program), and more critically, by requesting that the library reconsider its policy to make its meeting rooms public forums.
A special meeting of the library’s trustees was then scheduled for May 5.
The TALDF contacted the library’s director and explained that of course no apology would ever be needed for upholding free speech. Afterward TALDF addressed a letter to the trustees [pasted at the end, Hakan please make a link to it] emphasizing the important role played by American libraries as public forums and describing several important Supreme Court precedents preventing content-based discrimination in such public forums. Mr. Bruce Fein appeared on behalf of the TALDF and the May 5 meeting and conveyed these arguments in summary to the board.
Following the meeting, the board released the following statement:
The Board of Trustees of the Springfield Free Public Library wishes to affirm its policy that the First Amendment protects the right of any group to use the library meeting room(s) regardless of the content of the program or viewpoint expressed. The program “The Armenian Revolt” held at the library on Sunday, April 20th, 2008 was presented under private sponsorship and a fee was paid for the use of the room. The library did not and does not endorse or promote any viewpoint by any presenter.
Thus, a complete victory for free speech was achieved in Springfield. No apology was offered or even discussed by the board, as certainly none was needed. Further, the library has affirmed both the importance of its role as a public forum and its support for First Amendment principles that protect from censorship the content presented and discussed there.
Turkish American Legal Defense Fund
May 5, 2008
Cheryl Mullman, President
RE: Legal Landscape for Discussion of Public Forum Status
Dear Ms. President and Members of the Board of Trustees:
I am writing to communicate the legal landscape that would confront any proposal to terminate the Springfield Free Public Library’s public forum meeting room in favor of a crabbed free speech policy that might censor controversial ideas from the Library’s debate or educational agenda. To state the obvious, the issue has surfaced because of the shrill disgruntlements of some over the expression of viewpoints at the Library that disputed the Armenian genocide claim. The detractors are unsatisfied with their equal opportunity to voice their pro-genocide arguments.
The First Amendment’s protection of free speech would be violated if the Board sounded the death knell for its public forum policy; and, a significant motivating factor was to suppress controversial views about the Armenian genocide question. The United States Supreme Court has been adamant that state action whose purpose is to suppress particular viewpoints or controversial subjects is unconstitutional. In Grosjean .v American Press Co., 297 U.S. 233 (1936), the Court invalidated a gross receipts tax on advertising targeted on publications with weekly circulations exceeding 20,000 that was patently designed as retaliation for their hostility towards certain Louisiana government officials in the Huey Long era. The Court amplified: “The form in which the tax is imposed is suspicious. It is not measured or limited by the volume of advertisements. It is measured alone by the extent of circulation of the publication in which the advertisements are carried, with the plain purpose of penalizing the publishers and curtailing the circulation of a selected group of newspapers.” In Consolidated Edison Co. v. Public Service Commission of New York, 447 U.S. 530 (1980), the Court nullified a New York decree that muzzled electric utilities from discussing controversial issues of public policy. Writing for the majority, Justice Lewis Powell explained: “The First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic. As a general matter,"the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department of Chicago v. Mosley, supra at 408 U. S. 95; see Cox v. Louisiana, 379 U. S. 536, 379 U. S. 580-581 (1965) (opinion of Black, J.). In Mosley, we held that a municipality could not exempt labor picketing from a general prohibition on picketing at a school even though the ban would have reached both pro- and anti-union demonstrations. If the marketplace of ideas is to remain free and open, governments must not be allowed to choose "which issues are worth discussing or debating. . . ." 408 U.S. at 408 U. S. 96. See also Erznoznik v. City of Jacksonville, supra at 422 U. S. 214-215; Tinker v. Des Moines School District, 393 U. S. 503, 393 U. S. 510-511 (1969). To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.”
Any effort by the Springfield Free Public Library to place certain controversial topics off limits from its meeting room or public forum policy would raise serious First Amendment concerns. The Amendment would not tolerate a modern version of the Index Liborum Prohibitorum. It would not accept a library policy that would have denied a controversial debate between Ptolemy and Copernicus over the geocentric vs. heliocentric theory of the universe. The United States Supreme Court has repeatedly affirmed that the purpose of free speech is to provoke and to challenge orthodoxies in recognition both that time has upset many fighting faiths, and, that nine tenths of what we believe consists of knowing why alternative beliefs to which we are exposed are unpersuasive.
A dear friend of mine named Jim Warner is a Vietnam veteran. Yet he was an outspoken opponent of an amendment to the United States Constitution that would authorize criminal prosecutions for burning the American flag. He repeatedly instructed me in high octaves that he was fighting for freedom of speech—even speech that many might hate—in the jungles of Vietnam. That is the signature of the United States, and inspires men and women to risk that last full measure of devotion on the battlefield. There is never any time for summer soldiers or sunshine patriots in defense of free speech—especially among those who govern public libraries and are sworn to uphold and defend the United States Constitution.
In any First Amendment lawsuit that might successfully challenge an abandonment of the Springfield Free Public Library’s public forum policy, attorneys’ fees and costs would presumptively be awarded to the plaintiffs under the Civil Rights Attorneys’ Fees Award Act of 1988.
Armenian genocide proponents fret that contra-genocide viewpoints will dupe the audience into wrongful beliefs. Thus, the viewpoints must be suppressed to save the people from their own folly. But United States Supreme Court held in Linmark Associates v. Willingboro, 431 U.S. 85 (1977), that the First Amendment forbids government from denying citizens access to information because it fears the recipients will act irrationally. That paternalistic conception of government is alien to the United States Constitution.
Even if the First Amendment would not condemn any alteration in the Library’s public forum policy to appease Armenian American and other scourges of contra-genocide viewpoints or persons hostile to speech they hate, Article I, paragraphs 6 and 18 of the New Jersey Constitution would. In State v. Schmid, 84 N.J. 535 (1980), the New Jersey Supreme Court interpreted those twin provisions to saddle both private and public institutions with greater free speech obligations than does the United States Constitution. Pertinent to the free speech inquiry under the state constitution are: the nature, purposes, and primary use of such property, generally, its ‘normal’ use; the extent and nature of the public’s invitation to use that property; and, the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property.
Applying the benchmarks of State v. Schmid, it seems clear that under the New Jersey Constitution the Springfield Free Public Library was obligated to host the showing of “The Armenian Revolt” and Guenter Lewy’s lecture. The Library’s purpose is to promote intellectual inquiry and learning. The general public is invited to use the Library to receive new ideas and viewpoints. And the purpose of the film and lecture fit the purpose of the Library like a glove: to promote learning and exposure to contrasting viewpoints. Among other eminent scholars, Bernard Lewis of Princeton and Stanford Shaw of U.C.L.A. have denied the Armenian genocide claim. It is highly suspicious that Armenian organizations and the Armenian government refuse to open their archives. What are they intent on hiding? Controversial questions are best addressed by more speech, not enforced silence.