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First Amendment Options

This might be an odd thing for me to post in my literati lawyer page, but I simply must have somewhere to say it – this will be a spoken word post.

Last month I read Aeschylus’ the Oresteia although I have not yet gotten around to posting about it.  Suffice to say this written word was made in approximately 500 B.C., about 2500 years ago, and has outlasted the pillars of stone carved at the same time.  (For the record, the fourth installment – the comedic denouement- has been lost, and I am immensely sad that the guardians of the word were not able to preserve it).  In all truth though these plays have been preserved because it took an act of effort and the sense that there was something worthwhile to preserve.  I salute the unnamed guardians of the written word, rushing to save these oeuvres from burning libraries through the centuries. 

But now there’s the Internet, where in the words of my late Uncle: “The Internet never forgets.”

I write this article because I am working to save a young man from the unforeseen consequences of his words.  I believe that over-connection is the 21st Century Issue, as important as Civil Rights in the 20th.  To prove my point, I point to the early Benghazi media reports: At least initially, the attacks on the Libyan embassy were reported concurrently with Middle Eastern protests concerning the trailer of the “Innocence of Muslims” – not even a film I say – which was posted on You Tube, accessed in the Muslim world immediately, and caused its own crisis. 

That is unprecedented history.  This is massive change in motion.  This means that not only culturally but legally the protections of the First Amendment – which only counts when people are hotly offended by the statements – reach across borders simultaneously to places where those words are fighting words – i.e. not constitutionally protected but also immediate grounds for vendetta, retribution, prosecution and persecution under the laws of those places.  Sometimes in your own places, such as Stubenville Ohio.

The comforting  news to me in this digital hyper-sensitive space, is that Salmon Rushdie knows what that is, Jyllands-Postens knows it, and our own founding fathers knew it – news of treason in the form of our founding Declaration of Independence spread pretty fast, even in the day of news-by-schooner.

I myself am pretty media shy – I always give my clients a social media gag order on pending cases except the pleadings.  They can post the pleadings wherever they want.  I do not allow my clients to go the media, for reasons that shall obliquely be referred to as “The McDonalds Coffee Lady” effect.  Daniel Kahneman studied snap judgments (heuristics and intuitive thinking, for those whose intellectual courage leads them that way) and received a Nobel Prize in Economic Sciences for explaining snap, hasty judgments.  Assume this: assume your audience will hear three words of what you say.  Assume that those three words are only the most provocative words in the story.  Assume that from those three words they will build an image of what you most resemble.  Before you hit send, what say we re-think that? 

I can honestly say that I didn’t learn start to learn discretion until I was almost thirty.  Indeed, there are some professional colleagues who will say I still don’t, although the difference is now I truly agonize over every provocative word I write – and I admittedly write some truly provocative things – not here of course, you’d have to read some of my briefing – and every time I do, I weight the dangers of “going there” against the consequences of “not going there.”  In the case of a young man I recently submitted into evidence the definitions of Tupac Shakur’s distinction between an N-Er and the casual youth N-A (yes seriously) to attempt to show that how to a young man of color was not racist in the use of his N-A word, but that it was a generational gap and a significant event of linguistic reclamation.  And I truly believe that I angered the Judge by submitting these words.  And yet I stand by my rational analysis: had I not “gone there” my client would have been hosed on the basis of the words.  

In the words of my friend via text: “OG.”

I’m posting the link to story by the woman of the Manti Te’o catfishing story: she’s smart.  She’s right.  She points out that lives are ruined over on-line material.  She states what  should be done: we need to be more self-protective.  Online and I would add in real life.   My next post will discuss the concept of self-protection.  Please remember: E = Evidence.


One response »

  1. I really like reading through an article that will
    make people think. Also, thanks for allowing me to comment!


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