“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment of the Constitution is surprisingly short. It also applies only to restrictions against government actions. “Congress shall make no law…”
Over the years, courts have expanded the Free Speech interpretation of the First Amendment to apply against state and local governments in addition to the federal level. BUT – the First Amendment does not apply against companies, organizations or individuals.
In other words, CNN political analyst Kirsten Powers was correct when she noted that, “News organizations cannot violate a person’s First Amendment Rights”.
The First Amendment doesn’t apply to private actors.
That being said, free speech has attained a certain level in our national consciousness. Many people do not realize that only the government can violate free speech rights. Americans tend to take it very seriously whenever anyone impinges on free speech – even when it is legal to do so. Which makes CNN’s actions all the more baffling.
As most everyone knows, CNN threatened a Reddit gif maker with public exposure after his gif was used by President Trump to mock CNN. The full story from CNN can be found here. This is the core of CNN’s statement on the matter:
The apology came after CNN’s KFile identified the man behind “HanA**holeSolo.”
After posting his apology, “HanA**holeSolo” called CNN’s KFile and confirmed his identity. In the interview, “HanA**holeSolo” sounded nervous about his identity being revealed and asked to not be named out of fear for his personal safety and for the public embarrassment it would bring to him and his family.
CNN reserves the right to publish his identity should any of that change.
It’s that last bit that’s especially problematic. “CNN reserves the right to publish his identity should any of that change.”
I would not have agreed with the decision if CNN had decided to publish the gif maker’s name – but I also would have seen nothing legally wrong in doing so. I simply think it would have been a foolish corporate move.
But think on what CNN is implying by its qualifying statement. We won’t publish your name now – but we might in the future – if we decide that you engage in something we find offensive.
This becomes a problem on multiple levels.
First, the statement appears to be a fairly clear threat – it skirts the boundaries of blackmail and smacks of coercion. The apology certainly appears to have been coerced.
Secondly, CNN has now declared itself the arbiter of what offends.
Take this argument to an extreme. Assume that CNN actually decides to monitor this Reddit user going forward – looking over his postings. CNN gets to decide what is – and is not – offensive. The Reddit user doesn’t know in advance what might comprise offensive speech or writings – not unless he runs everything by CNN first. CNN becomes the judge of what is considered offensive. And uses their overhanging threat of public disclosure as a means to suppress this individual’s written and verbal actions into the future.
CNN issued a follow-up statement on Twitter in an attempt to clarify its position:
CNN decided not to publish the name of the Reddit user out of concern for his safety. Any assertion that the network blackmailed or coerced him is false,” the network said in the statement. “The user, who is an adult male, not a 15-year-old boy, apologized and deleted his account before ever speaking with our reporter. CNN never made any deal, of any kind, with the user. In fact, CNN included its decision to withhold the user’s identity in an effort to be completely transparent that there was no deal.
Note the first bit of that statement – “out of concern for his safety“.
Interestingly, CNN did not retract their threat in its earlier statement – “CNN reserves the right to publish his identity should any of that change” – while at the same time noting CNN believes they would be placing the Reddit user in danger if they were to do so.
To paraphrase CNN. We believe we might be placing the Reddit user in physical danger by the public release of his name. So we have not done so – yet. But we might do so if we find him to engage in anything we deem to be offensive in the future. But we won’t define what we deem to be offensive. We’ll let you know when we see it.
Stupidity like this leaves me speechless. Well, almost.
Keep in mind that all this noise surrounds the maker of a gif. A random guy who apparently posted some offensive things – CNN’s Andrew Kaczynski reported the Reddit user’s feed contained offensive content, “some of which included racist and anti-Semitic imagery”. And who made a gif that happened to be used by the President to mock CNN. The Reddit user posted nothing illegal.
In turn, CNN decides the appropriate action is to go after the gif maker – a guy who had zero idea his creation would be used in such a fashion.
It’s also been reported that the actual gif used by President Trump may have come from another source – the framing and aspect is supposedly different. So it’s possible CNN actually got the wrong guy on top of everything else.
The internet has erupted in full fury. #CNNBlackmail has been trending for two days – although Twitter appears to be doing their best to suppress it. Hilarious anti-CNN gifs abound. CNN viewership is tanking as I write. Re-runs of Yogi Bear literally beat out CNN. They have become a laughingstock. And I don’t think it’s going away. Although CNN ultimately might.
This story was never about the guy who made the gif. The story should have been about the President’s tweet. Some found it hilarious. Some were hugely offended. Many found it unbefitting a President.
CNN somehow managed to make it all about them. To their great regret.
Senator Ted Cruz took note and tweeted out that CNN may have violated at least one law:
Troubling. I assume CNN’s lawyers are examining GA § 16-8-16 Theft by extortion. If CNN constructively obtained the gif-maker’s IP…it’s a GA crime if they threatened to “Disseminate any information tending to subject any person to hatred, contempt, or ridicule….”
The specific Georgia statute cited by Cruz states it is a crime to “unlawfully obtains property of or from another person by threatening to… (3) disseminate any information tending to subject any person to hatred, contempt, or ridicule or to impair his credit or business repute.”
CNN is headquartered in Atlanta, Georgia.
I’m not so sure the statute actually applies – “unlawfully obtains property” – but it’s hardly the point. CNN has mismanaged this to a level that the whole affair may be studied at business schools in the future.
CNN didn’t violate anyone’s free speech rights – but they did engage in forms of intimidation and possibly coercion. And while they cannot violate any free speech laws they did manage to effectively stifle free speech. Hardly becoming of a news organization.
That’s just part of the reason CNN has become synonymous with the term ‘Fake News”.
For a bit of levity take a look at this hilarious video made by Brandon Morse of The Blaze. If you haven’t seen the video, the 1-1/2 minutes is utterly worth it:
Brandon Morse recognizes that he should have never made fun of the great and totally not fake news organization CNN, and would like to make an apology that is not forced in any way.
Posted by TheBlaze on Wednesday, July 5, 2017
For those interested, here is a solid and concise discussion of the Freedom of Speech section of the First Amendment – and where and how it applies – provided by the Heritage Foundation.
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