Exceptions to the Rule

Chapter six of the book “Freedom for the Thought We Hate” by Anthony Lewis describes to what extent journalists are protected from having to name their sources before a grand jury.  Most conversation surrounding the first amendment pertains to who gets to talk about what in society. This chapter presented an interesting question about who doesn’t have to talk.  The main idea behind allowing reporters to keep their sources anonymous is to allow them to gain valuable information without having to do so at the expense of a source or whistleblower.  If sources of highly sought out information were left with no protection for anonymity then it is possible they would never come forward. This is known as a “chilling effect” and the same thing interestingly comes up a lot around the topic of libel, parody, and satire and the first amendment.

In contrast to shield laws that protect people from having to speak, the supreme court case “Hustler Magazine v. Falwell”  revolves around an important question about who is able to talk about whom and in what manner?  Caricature, parody, and satire are all forms of speech protected by the first amendment under certain terms that have evolved over time.  President Donald Trump has publicly criticised a number of satirical news outlets for parody and satirical news about him and his administration.  The most significant example of this has been Trump’s fury with SNL since his campaign really began to pick up in 2015. Since SNL, specifically Alec Baldwin, has been doing using parody and satire to do skits impersonating Trump, he has expressed his personal outrage about these “attacks” publicly on Twitter.

While this example is from Twitter it is not a stand alone “call out.”  Trump has spent his entire campaign and presidency calling out “the media”, identifying mainstream, and left-wing media outlets as primary contributors to the causal root of dissatisfaction his base has with their lives and the country. The reason this current example of Trump is so pertinent to the Supreme Court case “Hustler Magazine v. Falwell”  is that without the president of the courts 8-0 ruling in favor of the Hustler Magazine publication, there would be a heightened level of uncertainty surrounding entertainment programs and publications rights and protections from direct Presidential “retribution” or other formal legal punishment.  

What the ruling of “Hustler Magazine v. Falwell” did was establish a protection for — without this president and a public figure as powerful and outspoken as President Donald Trump, any one who offends a public leader by making fun of them could face legal consequences and effectively be silenced.  Arguably, the court ruled unanimously in the case of Hustler v. Falwell for this exact reason: to protect public conversation about public figures from a potential “chilling effect” that a vengeful public figure such as President Trump could elicit.  

Both Branzburg v. Hayes (1972) and Hustler Magazine (1983) influenced ways the “underdogs” of society are protected to be able to speak up and also how the first amendment extends to protect people who might be vulnerable from having to reveal how and from whom their information came from.  It is fascinating to think about all of the ways in which the first amendment serves as a powerful equalizing force in our democracy on an everyday basis we might take for granted.