This is a fraught time for freedom of speech in the United States.
The presumptive Republican candidate for president, who enjoys the support of tens of millions of his fellow citizens, has drafted plans to invoke the Insurrection Act on his first day in office, thereby enabling him to deploy the military on U.S. soil to suppress protests. He has also spoken openly and with relish of using the tools of government to retaliate against his political opponents and the news media.
Meanwhile, there has been growing pressure on the U.S. Supreme Court to revisit New York Times v. Sullivan, the landmark 1964 decision that established that the doctrine of seditious libel, under which criticism of the government is treated as defamation, has no place in U.S. law.
These two situations do not present the sorts of knotty issues that inevitably arise at the frontiers of permissible expression. They are threats that strike at the core of the First Amendment: the freedom to criticize government and government officials without fear of retaliation.
Against this background, a local case demands attention. Two University of Chicago students — Harley Pomper and Ethan Ostrow — have filed a lawsuit in federal court against Cook County Sheriff Tom Dart claiming that he violated their First Amendment rights by retaliating against them for publishing an opinion piece critical of policies he had instituted at Cook County Jail.
Pomper and Ostrow are participants in a program sponsored by the U. of C.’s Institute of Politics that conducts writing workshops at the jail. They learned from inmates that Dart, concerned that drug-saturated paper smuggled into the facility had contributed to a spike in overdose deaths, had imposed sweeping restrictions on inmates’ access to books, mail and legal documents.
Believing that the restrictions were overly broad and that they violated the rights of those detained in the jail, Pomper and Ostrow published an op-ed in the Sun-Times under the headline “Cook County Jail’s paper ban infringes on intellectual freedom.” In so doing, they joined a larger public debate in jurisdictions across the country about how best to prevent overdose deaths, while respecting the rights of the incarcerated.
“A ban on paper products,” they wrote, “is a ban on education, expression and exploration — harms that far outweigh the protection against drug abuse officials hope to provide.”
On May 30, Dart published an op-ed in the Sun-Times titled “Drug-laced paper secretly brought into Cook County Jail is dangerous for inmates.” Although he did not mention Pomper and Ostrow by name, his piece was clearly a response to theirs.
He wrote that restrictions on paper were necessary because jail staffers were finding “powerful synthetic cannabinoids mixed with nail polish remover, rat poison or pesticides — sprayed and dried on children’s drawings, Bible pages, store-bought cards from sweethearts, legal files, and pictures of friends and loved ones.”
The exchange was an exemplary instance of the First Amendment in action. It enlarged one’s understanding of the issue, illuminated the competing values involved, focused attention on questions of fact requiring dependent verification, and prompted further reporting and discussion by others.
That is how public discourse is supposed to work in an open society. The sheriff’s department apparently does not see it that way, however. This fall, Pomper and Ostrow were informed that Cook County Jail had denied them security clearances and so they would not be allowed to participate in the writing program they help lead. They were the only students in the program denied clearance.
A spokesperson for Dart’s office made it clear in a statement to the Hyde Park Herald that the denial was in response to the students’ criticism of jail policies: “The jail cannot allow individuals access when they have previously demonstrated a clear intent to use that access to spread disinformation in a way that undermines the safety of staff and individuals in custody.”
It’s striking that the spokesperson characterized the students’ measured criticisms as “disinformation.” While the dangers to democratic discourse posed by organized disinformation campaigns are grave, we also need to be alert to the danger that public officials will label speech they don’t like “disinformation,” thereby creating a new rationale for sanctioning criticism of government.
Although Pomper and Ostrow are the sole plaintiffs in the pending lawsuit, the retaliation against them for exercising their First Amendment rights has ramifications that extend beyond them. It has — and is clearly intended to have — a chilling effect on other participants in the writing program and in kindred programs in the jail. It sends the message that access to the jail is contingent on their silence about the conditions they observe there.
Above all, it violates the rights of inmates, deepening their isolation and denying them the means to communicate with the larger society.
Jamie Kalven is the founding executive director of the Invisible Institute and the editor of “A Worthy Tradition: Freedom of Speech in America by Harry Kalven, Jr.”
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