Free speech is strangled

Nearby Hargrave Military Academy and a pair of disgruntled parents settled a lawsuit this week, but nothing was settled about the court’s “right” to interfere with free speech.

Jerry and Melissa Guyles had started a Web site complaining about the academy’s decision to expel their son after the Honor Council found him guilty of stealing.

Hargrave President Wheeler M. Baker affirmed the decision.

The couple claimed that Hargrave “suffers from poor leadership due to their President, Wheeler Baker.” They also posted a letter they sent to other Hargrave parents saying Mr. Baker lacked professionalism and integrity.

Details of this week’s court settlement are secret, but the Web site was not back up and working.

Hargrave and Mr. Baker sued the Guyleses, claiming, among other things, that they launched their allegations with “reckless disregard for the truth.”

The resulting civil trial would have proved whether Hargrave and its president were right, or whether the Guyleses were justified in their criticism.

It should have been a straightforward case of cause and effect. The law requires each of us to take responsibility for what we say or write, post or broadcast.

If the Guyleses made a mistake, they would have to bear the consequences. That should have been decided at civil trial.

The problem is that a judge took the Web site offline before hearing all evidence. That’s called “prior restraint,” and it violates fundamental and long-established precedents in First Amendment cases.

Two issues are at stake: that the judge exercised prior restraint, before hearing all the evidence, and that he imposed an overly harsh penalty.

The Thomas Jefferson Center for the Protection of Free Expression, based in Charlottesville, and the American Civil Liberties Union of Virginia joined to argue against the censorship. They said the judge’s restraining order violated free speech when it was issued in May because it came before the parents had a chance to argue their side of the case.

“The court’s order is extraordinary, a bad sign of our times,” said Kent Willis, executive director of the Virginia ACLU. “Our freedom depends first and foremost on free speech. Judges are allowed to curb speech only as a last resort and then under the most carefully and narrowly controlled circumstances.

“Wiping out an entire Web site because one party doesn’t like what it says simply does not comport with our understanding of free expression in this country.”

“Wiping out an entire Web site” is the other half of the problem. Not only did the judge impose prior restraint, but he employed a draconian method of overkill.

After all, it wasn’t the Web site itself that was the alleged problem, it was the disputed words on the Web site.

If this sounds like nitpicking, consider long-time precedent. Even if a publisher or broadcaster is found liable for reckless disregard in one of its stories, the newspaper, magazine, radio or TV station is not ordered to shut down. There are responsibilities, there are consequences, there are penalties to face, but the publisher or broadcaster may continue to operate.

This precedent is such a well-established feature of First Amendment law that its violation is especially shocking. It is indeed a bad sign for our times.

There’s a reason our Founding Fathers put free speech (and freedom of religion) first in their list of protections. Democracy can’t exist without freedom of speech. We must be able to criticize those in authority. The Founders knew that even if the criticism was wrong, even if it were reckless, the risk was worth the benefits.

The Charlottesville Daily Progress