If there’s a single-most-slippery trap in legislation, it may be the urge to specifically safeguard rights in ways that stealthily draw lines around them and interfere with the competing rights of others. By way of promoting them, former Providence Journal columnist Edward Fitzpatrick points to an excellent example in two bits of Rhode Island legislation purporting to protect the free expression rights of student journalists (S0600 and H5550).
The idea is to protect student journalists from reprisals for their journalistic work, but the warning sign comes with this justification from Frank LoMonte, executive director of the Student Press Law Center:
With the advent of social media, it is futile for schools to try to stop students from learning about and having conversations about controversial topics, LoMonte said. “You can’t hold back the flood of information,” he said. “It’s much better to manage it in a journalistically responsible way. I always tell people it’s their choice: The discussion of controversies will take place either in a supervised, accountable newsroom – or on social media. But it’s definitely going to take place.”
See how easily this supposed nod toward safeguarding rights can be sold as a way for authorities (like schools) to control speech? The legislation defines the “student journalists” to whom the protections apply, giving such students special privileges for the use of language. The bill does include a provision that prevents “sanction” against (without defining) “a student operating as an independent journalist,” but for the bill to have any meaning short of “all students,” a court would have to judge the students to be journalists by some criteria.
Implicitly, in other words, this legislation creates categories of speech that would not be protected because they do not count as journalism according to the government, in one of its faces or another.
Worse, the legislation would draw narrow restrictions on the rights of all schools — including private schools — to set limits on the content that it will publish in school-sponsored publications. In this way, the law would give the government authority over the speech and free association of students. Moreover, the exceptions, giving schools the ability to restrict speech that is “profane, harassing, threatening, or intimidating,” invite courts to interpret rules on a case-by-case basis.
Again, an undefined term like “profane” opens the door for uneven application of the law. “Profane” by whose standards? If it’s by the secular government’s standards, we may find that a Muslim-school student’s questioning of his faith is “Islamophobia,” which may be restricted, while a Catholic-school student’s doing the same is merely fulfilling the very purpose of journalism.
Rights are, by their nature, messy and in constant conflict. In order to feel like champions of rights, meddlers go about seeking to define them according to detailed rules. Inevitably, they do so in a way that conforms to their own biases, which means they’re doing the opposite of what they claim to be doing.