The Washington Times: Opinion: The First Amendment Rights shouldn’t be just for America’s legal system

By Pat DeWine–Tuesday, April 13, 2021

When it comes to freedom of expression, ours is a world of strange dichotomies.

Prevailing doctrine in our federal and state courts provides greater protections against governmental restrictions on speech than at any point in our history. Yet at the same time, the values that underlie these legal protections are increasingly being rejected by powerful societal actors.

As U.S. Supreme Court Justice Clarence Thomas noted just last week, a small number of private actors possess historically unprecedented power to cut off widely-used avenues of communication. So despite First Amendment protections being at their apex, the actual ability of citizens to express themselves is in many ways diminished.

Our tradition of protecting speech from government interference traces to our founding and the adoption of a U.S. Constitution that in its very First Amendment guaranteed that Congress would make no law “abridging the freedom of speech, or the press.”

But a constitutional command, by itself, wasn’t enough to get us to our modern free speech protections. Just ask James Callender, sentenced to nine months in jail in 1800 for violation of the Sedition Act after writing a book that labeled John Adams “a repulsive pendant, a gross hypocrite and an unprincipled oppressor.”

Or Jacob Abrams whose conviction for violation of the Espionage Act was affirmed by the U.S. Supreme Court in 1919. Abrams’ crime? Authoring a leaflet thrown from a window of a New York building that denounced the U.S. government for assisting efforts to resist the Russian Revolution.

The promise of the First Amendment was not fully realized until the 1960s when the Supreme Court read the amendment to provide broad protections to citizens who criticized their government. The court’s chosen metaphor to explain the right was the “marketplace of ideas,” an idea first popularized by Justice Oliver Wendell Holmes’ dissent in the Abrams case.

As Holmes explained, if one is certain in their beliefs, then persecution of others for contrary opinions is perfectly logical. But when one realizes “that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas.”

In this view, the “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” And the answer to speech we don’t like is not to stifle that speech but to allow for more speech so that the best — the truest — ideas will ultimately prevail.

The Supreme Court rarely acts in a vacuum. And in adopting a conception of free speech centered around the marketplace of ideas, the court acted in accord with the prevailing views of other influential institutions, particularly academia and the news media.

Colleges had long been considered bastions of free speech, but in the 1960s student activists — think the Berkley Free Speech movement — sought and achieved even greater protection for speech on campus. And in the era of the Pentagon Papers and New York Times v. Sullivan, the establishment news media were strong proponents of free speech protections centered on a marketplace of ideas.

Consider The New York Times editorial of June 25, 1978, the day that Nazis had planned to march in predominantly-Jewish Skokie, Illinois: “As for the Nazis let the march, nothing they will do or say is likely to win them the affection of any number of Americans. But the fact that they are permitted to rally confirms the strength of the constitutional government which they would, if they could, destroy.”

Fair to say, the development of our modern conception of free speech rights rested on a three-legged stool: the courts, the media and academia. While it was ultimately the Supreme Court that interpreted the First Amendment to provide our modern robust speech protections, it acted against a backdrop of widespread support in academia and the media.

Fast-forward to today. When universities come to court, it is most typically because they want more authority to restrict speech. The prevailing view in academia is not that we should allow competing ideas to flourish, but that we must do more to protect students from speech that might offend them.

No one has a bigger stake in robust free speech protections than the media, but increasingly even some of the press seems less than comfortable with the implications of a true marketplace of ideas. Look at what happened this summer when The New York Times published an op-ed written by U.S. Sen. Tom Cotton calling for the mobilization of troops to protect against rioters.

At the same New York Times that celebrated the right of Nazis to march in Skokie, the backlash to the publication of a U.S. senator’s opinion was so strong that the opinion editor felt compelled to resign.

We hear a lot about “cancel culture” today. And it is worth noting that much of the “cancelling” that takes place has nothing to do with the First Amendment because it does not involve governmental restriction on speech. But even though it involves private conduct, the idea that we should shut down speech we don’t like rather than simply encourage more speech and trust that truth will ultimately prevail runs counter to the basic assumption that animates our First Amendment jurisprudence.

One has to wonder, what happens to a legal doctrine premised on a marketplace of ideas when large swaths of society stop accepting the doctrine’s premise?

Let’s hope nothing. Though the marketplace of ideas may be under attack, it still offers a far-superior means to obtain truth than the imposition of some chosen orthodoxy in thought from on high. The values that underlie the First Amendment apply equally to private conduct — be it a social networking platform, academia or a newspaper editorial page.

We can only hope that our institutions come to learn what our legal system has — that there is no guarantee that any one of us is right, so it is worth putting up with voices we don’t like in order to ensure that we live in a world where there is a free trade of ideas.

But to the extent that doesn’t happen, and our institutions succumb to the temptation to shut down unpopular voices in favor of the prevailing sentiment, it will be even more important that our courts continue to protect the rights of those who would otherwise be silenced.

  • Pat DeWine is a justice on the Ohio Supreme Court

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Cincinnati’s 2001 riots offer lessons for today: Pat DeWine Posted Jun 12, 2020 By Guest Columnist,

Cincinnati’s 2001 riots offer lessons for today: Pat DeWine
Posted Jun 12, 2020
By Guest Columnist,

CINCINNATI — On April 9, 2001, I sat in Cincinnati City Council chambers as a group of irate citizens pressed in demanding answers following the shooting of an unarmed man by a police officer. It was the latest in a series of 15 deaths of black males in Cincinnati police encounters over the past six years. Council provided few answers — certainly not the ones the audience was looking for.

After the group left City Hall, riots broke out that continued for another four days. Ultimately, a curfew was instituted and the National Guard called in. It was, at the time, the largest urban disturbance in the United States since the 1992 Los Angeles riots.

Of course, today all this sounds unsettlingly familiar — some might even see it as a reminder of our country’s lack of progress in the area of police-community relations.

But the reality is that Cincinnati did take steps following the riots — many of which worked a real improvement. At the same time, it made mistakes that had unfortunate consequences.

What worked: increased accountability, transparency and collaboration.
After the riots, there was a huge push for reform — certainly from those who had been protesting but also from corporate types and others who had previously shied away from the messy world of city politics. It wasn’t easy, but Cincinnati made some lasting reforms.

A longstanding criticism of the police force was that it was too insular, that it was led by a small clique that fostered a culture often at odds with the city it protected, and that it was unaccountable. Part of the problem were rigid civil service rules, which mandated that promotions to the upper echelons of the police force, including the chief, could only come from within.

To remedy this, we placed a charter amendment on the ballot that reformed civil service rules to allow the best person to be hired for top city positions. The police union and chief waged a vigorous campaign against the measure — but, ultimately, it passed. As a result, the city has hired chiefs from outside the city, the culture inside the force has improved, and the level of accountability has increased.

At the same time, the city entered into a Collaborative Agreement with the Fraternal Order of Police, the ACLU, and the Black United Front. The agreement forced the police and longtime critics of the department to work together to develop strategies to protect public safety. This led to a significant revamping of use-of-force policies, greater transparency and accountability for police conduct, and a more community-oriented policing philosophy.

What didn’t work: not enforcing the law.
But there was a downside. The period following the riots was an incredibly contentious time. Police officers, who were risking their lives every day, often felt unsupported by the politicians. Not surprisingly, law enforcement activities dropped dramatically after the riots; arrests fell by over 50%. City leaders were reluctant to do, or say, anything. Crime soared. In a two-year period, Cincinnati’s homicide rate leapt from below the national average to three times the national average.

And as crime spiked, the neighborhoods that were hit hardest by the riots were victimized again. The historic Over-the-Rhine neighborhood was at the center of the unrest. Before the riots, that neighborhood was revitalizing itself with new businesses and homeowners. But the damage done first by the riots and then by the crime surge brought that renaissance to an abrupt stop.

The Cincinnati experience offers obvious lessons. Smart city leaders will focus on collaborative efforts that increase accountability and transparency. But the objective has to be better policing, not less policing. To succeed, our cities must master the difficult task of creating an environment in which citizens both trust their police and live and work in safe neighborhoods.

Justice Pat DeWine is currently a member of the Ohio Supreme Court. Prior to becoming a judge, he served as a member of Cincinnati City Council from 1999 to 2005 and was chairman of council’s law committee following the Cincinnati riots.

COVID-19 crisis presents opportunities for our courts The Columbus Dispatch | by Justice Pat DeWine Opinion

COVID-19 crisis presents opportunities for our courts

The Columbus Dispatch | by Justice Pat DeWine

There is no sugarcoating it. This is a tough time for our court system.

Our work at the Ohio Supreme Court goes on — we have been able to hold oral arguments via video conferencing with attorneys and justices at remote locations. And because most of our other work involves reading briefs, researching legal issues and writing opinions, we have been able to function fairly efficiently with justices and staff working from home.

But at the trial court level, it is a different story. Jury trials have pretty much come to a halt. Many hearings have been delayed for months. Understandably, litigants are frustrated by their inability to get disputes resolved. Things will certainly get better as our society begins to reopen. But even when our courts are fully back to business, they will struggle to catch up with backlogs. And most likely, they will have to do so with fewer resources because of budget challenges at the state and local level.

It is not all bad news, though. During this strange time, many courts across the state have embraced technology and come up with innovative ways to continue to provide justice. Going forward, we need to look at what has worked and figure out how to incorporate what we have learned into our court system.

Start with remote technology. Across the state, judges are conducting hearings remotely. In Hamilton County, for example, Probate Judge Ted Winkler is finalizing adoptions and Domestic Relations Judge Amy Searcy is offering family mediation services through remote technology. Since the crisis started, the Ohio Supreme Court has awarded $6 million in remote technology grants to 277 courts in 87 counties.

This technology ought to be a permanent part of our judicial system. The average civil or criminal case includes numerous preliminary hearings and conferences before final disposition. As a practicing attorney, I often traveled to courthouses for status conferences that lasted only 5-10 minutes. Think of the savings in litigation costs that could be achieved by doing such conferences remotely.

And not only these kinds of routine matters could benefit from remote technology. Rather than fly in witnesses for hearings, why not consider whether remote testimony would be just as effective? Oftentimes, prisoners are transported across the state to attend hearings that last only a few minutes. How many of these could be conducted just as effectively via videoconference?

Certainly, in many cases there is great value to in-person testimony and interaction. But judges and lawyers need to think about when such in-person proceedings are worth the cost and efforts and whether remote technology might allow for a preferable substitute.

The possibilities for improvement go beyond remote conferencing. Although many Ohio courts already allowed for the e-filing of documents, the crisis has led to the expansion of e-filing. Every court should develop the capability to allow litigants to file pleadings without a trip to the courthouse.

The crisis has also led to increased use of other types of online services that help make our system more efficient. Last year the General Assembly passed legislation allowing for the electronic notarization of documents — a service that has proven to be of great benefit in recent weeks.

Finally, concerns about the virus have led judges in many counties to work with their local sheriffs to determine who really needs to be in jail and who could safely be confined in a different setting, for example via in-home monitoring with GPS technology. Jail beds are much more expensive than the alternatives, and it only makes sense for judges and sheriffs to continue to work together to make sure that jail spaces are assigned to those who truly need to be there.

Our legal system — indeed the entire idea of the rule of law — is built upon tradition and precedent. This is a strength of our system. But sometimes it can also be a weakness; as judges and lawyers we are not always the first to embrace innovation and technology.

We should look at this unprecedented time as an opportunity. When this all ends, we will have some tough times ahead in our court system. But we also have a chance to take some of what we have learned during this crisis and use it to improve our system in a way that benefits litigants and taxpayers.

Justice DeWine Addresses New Attorneys in Ohio Theatre Ceremony

Justice DeWine addressed over 600 new attorneys  welcomed to the Ohio bar on November 14, 2017.

Read more about his remarks and the ceremony held at the Ohio Theatre from Court News Ohio.

Justice DeWine Participates in Q&A Session with Teen Leaders

Justice DeWine met with teen leaders who were participating in the Ohio Attorney General’s Teen Ambassador Program.

Read more about the Q&A session.