When can a newspaper be closed?

Although I'll not shed a tear if I hear something unfortunate happens to anti-American Shiite cleric Moqtada al-Sadr, someone must look at the actual facts surrounding the newspaper closure and the immediate escalation of violence in Iraq. Judging from the facts available, the CPA's and therefore the U.S. government’s actions appear misguided at best.

What al-Sadr advocated, said and did after the newspaper closure and arrest of his deputy definitely falls into the unlawful category. No doubt. No problem.

However, there are some problems. There are also some disturbing parallels. This newspaper closure doesn’t look fair or as legal as I had anticipated.

I plan to share some media law relating to the situation and cover some legalities of concern to journalists. I'll primarily reference a 10-year-old text. I wouldn’t expect a landmark overturning of the final few cases, but it could have happened (I never expected the USA PATRIOT Act to pass or Congress to hand the keys of the military to the president – these are unusual times). If there is a specific case which makes the following moot, please send me a note so I can be accurate and up to date.

I've seen a lot of grumbling on both sides of the closure of al-Hawza, the radical, anti-American Shiite weekly Iraqi newspaper linked to al-Sadr.

When I started writing this entry, I expected to briefly explain some landmark Supreme Court cases about how any U.S. newspaper could be legally closed. I (mis)understood al-Hawza had published one particular story calling for the death of so-and-so or some other act of violence - as would warrant a newspaper closure (it's unlawful to call for violence).

I hunted around the Web to find a translation of the actual story which lead to the closure of al-Hawza. I even have a literal in-house translator. Instead, I find the paper was closed because it reported falsely, didn't have correct facts, lied, whatever.

Hopefully everyone knows the majority of the Middle Eastern media make American supermarket tabloid publications appear legitimate. Additionally, this particular publication is widely portrayed as exceedingly intolerant.

However, I'm concerned when international news agencies accept the CPA explanation and didn't ask for the specific story which caused the closure of a newspaper.

Most publications state something similar to a UPI story, which states, “The CPA said the newspaper was closed for 60 days because it advocated violence against the coalition.”

This is not the primary source. The UPI story didn't give a translation of the original text or explain the nature of the original text. It truthfully reports the CPA "said" something, but it didn't check the underlying facts. This may be precisely the problem that caused the closure of al-Hawza. They quoted someone without independently investigating the facts.

According to an Associated Press story, "the chief U.S. administrator in Iraq, L. Paul Bremer, ordered Al-Hawza closed for two months on Sunday because its articles ‘form a serious threat of violence’ against coalition forces and Iraqi citizens working with them."

He used CPA order No. 14 as his legal basis. He wrote the order, therefore he should darn well know the order's terms. It clearly states "incite" violence or disorderly conduct. This is not the U.S. standard set to halt a press.

In the U.S., there must be a specific story making a specific and actionable call for violence against the government – not an implied threat to possibly make this call. By definition, Bremer didn't even adhere to the order he wrote.

Common Dreams News Center, a less-than-neutral-source, reports “the incident that precipitated this whole round of violence was the closing of his newspaper, al-Hawza, a blatantly undemocratic act. In fact, the paper was not closed for directly advocating violence, but simply for reporting one eyewitness claim that a supposed car bombing that killed numerous volunteers for the New Iraqi defense forces was actually done by plane (and therefore by the United States).”

U.S. Standard to close a newspaper
In short, a newspaper – any newspaper in the United States – can be closed by the government. However, the government can ONLY order a closure once the paper has already called for the violent overthrow of the government.

Furthermore, the government isn't allowed to exercise "prior restraint" (censorship). Rather, it must pursue "subsequent punishment" for dissemination of an unlawful form of communication. Meaning, the government can't close or censor a publication because it thinks it might call for some violent action. The publication must have already called for a violent action against the United States government.

This is a tough standard.

Luckily for the CPA administrators, they're not acting in America. Otherwise, they would need to deal with the First Amendment to the United States Constitution.

Legal precedents
The First Amendment states, "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."

This Amendment allows newspapers to exist relatively unfettered by the government. If Congress can't make laws prohibiting someone from running a press, nobody else can impose rules, laws or ordinances against this same press.

Other media – specifically radio and television – are transmitted on public airwaves and can be regulated by the Federal Communications Commission (FCC). So, I'll only address press-based media (newspapers, magazines, journals, handbills, and {possibly} Web-based publications) for this entry.

This protection allows for a free exchange of ideas in the public arena. Since the written word – and photographs by association – require the active participation of the reader, the same reader has the right not to read anything they wish not to read. Again, other media are different because of their passive nature. Right Miss Jackson?

Although this is a critical entitlement in America, it's balanced against other protected rights. For example, the right to live is more important than freedom of religion, speech or press. This explains why newspapers are prohibited from publishing certain names in some specific instances (i.e. court "gag orders").

However, there are some exceptions. Evince the 1919 Supreme Court decision in Schenck v. U.S. (249 U.S. 47). The case resulted from the Espionage Act of 1917, which was expanded in 1918 by the Sedition Act. Congress passed the act shortly after the start of World War I. It was designed to stop anti-war activists.

According to "Major Principles of Media Law" (1993 edition), anti-war activists (specifically socialists) distributed 15,000 leaflets for military recruits and draftees. The textbook states, "They urged the draftees not to serve and called the war a cold-blooded venture for the profit of big business."

Hmmmm….

Anyway, the socialists' First Amendment argument for the legality of the leaflets was rejected. Justice Oliver Wendell Holmes Jr. stated:

• "We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." (emphasis added)

Holmes also made the analogy: "free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

If the legal precedents ended here, then the CPA would be justified in its actions. However it doesn't, and they aren't.

Holmes eased up his minority views in later sedition cases, but most cases were upheld during the war.

The 1940 Alien Registration Act, known as the Smith Act, was attached to an unrelated bill and passed under the radar of most free speech advocates for several months. This new law not only prohibited advocating the forceful overthrow of the government (with little or no proof of ability to do so), but it also made it a crime to participate in or advocate any such group (i.e. communists). Furthermore, this new law applied during peacetime as well as during war. Meanwhile, politicians invented the term "Cold War" for additional rump coverage.

This law was continually upheld at the Supreme Court and led to McCarthyism through the 1950s. In 1957 a newer Supreme Court member, Chief Justice Earl Warren, helped curb the Red Scare and restore freedom of speech.

In Yates v. U.S. (354 U.S. 298), the court reversed convictions by focusing on "the advocacy and teaching of concrete action for the forcible overthrow of the Government, and not of principles divorced from action." Consequently, proof was required to convict.

Then came the Vietnam War and millions of vocal protesters. Most wanted to change the government and were allowed to voice their opinions because the way was cleared by the Supreme Court.

Believe it or not, the freaking Ku Klux Klan then expanded free speech further in Brandenburg v. Ohio (395 U.S. 444). The court ruled the First Amendment should not permit sanctions for political speech unless it threatens to provoke imminent lawless action.

This decision created the need for later "hate speech" laws.

Recap
Let's recap: The socialists, the communists and even the KKK secured the speech freedoms extended to all Americans. These aren't loved groups. American democracy is hard to live with. It means we must protect the rights of extremely dislikable people to ensure our own rights. During this unusual time, American resolve is being tested. Let us not fail.

Enough for now,