The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.

--Supreme Court Justice Oliver Wendell Holmes/March 3, 1919[1]

I shall not today attempt further to define [hard core pornography], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

--Justice Potter Stewart/June 22, 1964[2]

(T)he principle of the constitutional guarantees of free speech and free press do not permit a State to forbid or prosecute advocacy of the use of force of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

--Unanimous unsigned Supreme Court order/June 9, 1969[3]

 

If it sounds as if the Supreme Court has trouble defining the boundaries balancing protected free speech against violent hate rhetoric, disgusting pornography, vicious online attacks and fake news that doesn’t directly advocate but does harm real people, imagine our poor state lawmakers.

Most are not lawyers, but in this session alone they are dealing with bills designed to, among other things:

• Curb “abusive or offensive online behavior” on or off the job by all government employees from the state level to the most local political subdivisions.[4]

• Make all outdoor areas of state colleges and universities open so students are free to engage in civil debate there without fear of official restrictions or sanctions. Prohibit “free speech zones” which prohibit such activities on other areas of the campus. Such activities can only be regulated for valid safety, security or other valid, non-content-based reasons and only with specific written rules and guidelines outlining any such restrictions in details and the reasons for them.[5]

• Perhaps have to deal with the legal fallout from a court decision last week demolishing the Oklahoma Highway Patrol’s longtime exemption from the state Open Records Act for any information on its vehicle pursuit policies and procedures. The decision came during a murder trial in which the defendant was the car eluding police but the Highway Patrol officer killed was a mile away from the chase when his vehicle was hit by another OHP unit and crushed by his own car while picking up stop sticks that had failed to slow the fleeing car a brief time earlier.[6]

Senator Rob Standridge has simplified his effort to deal with abusive social media posts from government employees at all levels by presenting a slimmed-down version March 4 that cuts a 9-line summary to 3 lines and eliminates this potentially ill-defined section with explosive potential. It would have “discouraged…intentionally dishonest conduct that could potentially result in harm to a citizen of this state” by providing and enforcing written policies applying to all government employees at all levels, state and local.

“Dishonest,” and “potentially result in harm” are not defined in any way, leaving that to the discretion of each agency official designation to write and enforce its policy.

Left in place are requirements for policies to “discourage”:

• Actual or links to “obscene sexual content”;

•  Abusive behavior and bullying language or tone;

•  Conduct or encouragement of illegal activity, and;

•  Improper disclosure of confidential information accessible to the agency or employee.

But there’s also a new section that as written appears to give targets of such discouragement no recourse:

“The state or a political subdivision shall not be liable if a loss or claim results from any action undertaken in their discretion pursuant to the provisions of this act,” which would take effect Nov. 1.

The Bill is now awaiting floor debate with the amended bill proposal as the first item for discussion.

Oklahoma Press Association Executive Director Mark Thomas and Senate Minority Leader Kay Floyd both expressed First Amendment and other legal concerns about the measure to the Tulsa World.

But Thomas said he understood Standridge’s concern, saying his “heart is in the right place. But the bill will probably face some First amendment and employment law hurdles.

“It’s sad we even need a bill to instruct adults to behave appropriately when using social media.”

Making public campus outdoor space open to free civil debate appears to be going much more smoothly than trying to curb public employee’s obnoxious or worse online behavior.

State Senator Susan Daniels is the prime mover[7] and she cut her political teeth where the rubber meets the road by listening to ordinary people, first during eight years on the Bartlesville City Council and then as Mayor. She also served the state as a member of both the Tourism and Recreation and the Centennial Commemorative Commission.

She’s also an attorney[8] and thus sensitive to the legal and constitutional pitfalls surrounding anything with words such as freedom or restriction and expression or speech in the same sentence.

Thus her measure is carefully drawn, so definitions are precise. Basically, it provides that public outdoor places on campuses are open for free expression of ideas as long as the discussion is civil, does not cause harassment of others, disrupt legitimate campus operations, result in fighting, violent or other unlawful behavior, or physically blocking or using threats of violence to prevent others from being present at or listening to the exercise of free expression.

Campus rules must be set forth in writing available to all students by multiple means and must comply with the definitions in the law.

As originally written, the law would have imposed a $5,000 minimum fine on any institution violating it, and forced it to waive sovereign immunity from civil action in federal court by anyone aggrieved by an alleged violation.

However, Daniels filed a floor amendment this week to strike both clauses.

In a widely-published op-ed last week, she[9] wrote, “For centuries, institutions of higher education existed as places of critical thinking. Individuals are exposed to new ideas and new notions, and pushed to defend their beliefs. This free and open exchange of ideas is not only accepted, but celebrated.

“When public universities embrace free expression, everyone benefits, including scholars, students and their local communities.”

The measure, which has an emergency clause that if approved would allow it to take effect immediately, is now pending floor debate in the Senate. No widely publicized opposition has been seen so far.

Secrecy of OHP pursuit policies

Mention the treatment of the Oklahoma Highway Patrol’s special exemption from public disclosure, including the Open Records Act, for its 12-page policy on high-speed vehicle pursuits[10] and you’ll see red flags fly and smoke pouring from noses, mouths and ears of First Amendment advocates.

No other police agency has such protection from public view. The issue has bubbled to the surface many times over the years.

But it exploded after a police chase reaching 110 mph on I-35 in Moore, just outside Oklahoma City in Cleveland County on July 17, 2017. One pursuing trooper hit the parked car of an OHP lieutenant, who was out picking up stop sticks at a roadblock the fleeing driver had just evaded.

The trooper, driving 97 mph when he saw the other cruiser, had slowed to 59 mph five seconds later when he slammed into it. The lieutenant was struck and died 10 days later.

The eluding driver, D’Angelo Burgess, was more than a mile away but was charged with first degree murder on the basis that his illegal act of eluding officers triggered the crash. The pursuit began when he was seen following another car too closely, not wearing a seat belt, and having an expired license.

A jury convicted him Monday evening after deliberating about 2-1/2 hours. It recommended a sentence of life in prison with parole possible at the earliest when he is 66 years old. He was acquitted of marijuana and drug paraphernalia possession.

After considerable wrangling, a defense expert was allowed to testify about the policy, which he said the chase violated. He also said he had reviewed or helped write hundreds of such documents and called the Oklahoma version outdated, saying it used language from the 1980s.[11]

          The explosion over the confidentiality of the pursuit policy began Sept. 24, when a World reporter was excluded from a court hearing when its admissibility was discussed.

          When the World learned from motions that another hearing was coming up on the issue, it hired legal counsel to insist that the courtroom remain open.

          “The public, and the press as a surrogate for the public, have a qualified right of access to criminal proceedings. The right of access was recognized in a series of United States Supreme Court cases. In these cases, the press on its own behalf and as a surrogate for the public was granted access to court proceedings and court records…

          “The most vague and generic of the excuses/reasons for the vehicle pursuit policy to be confidential is that disclosure of certain provisions would encourage fleeing suspects to greatly exceed their speed and as a result present a dangerous hazard to the patrolman and to the general public,” argued the World attorney, Barry G. Reynolds.

          He didn’t say so in his filing, but he didn’t have to: The policy was secret in the Burgess case but the feared result happened anyway, as it had countless times before. Deaths had resulted before.

          After the verdict was returned, OHP Chief Michael Harrell told KFOR-TV in an exclusive interview[12]that, “Over the last eight months, I’ve put together a policy committee, and what they look at is keeping the public safe. It’s always a balancing act. I know they talked about it several times during the trial. It is really a balancing act of is it worth it?’

          Asked Tuesday to clarify whether the policy committee would review and possibly recommend changing the secrecy provision blocking disclosure of the vehicle pursuit policy, the agency’s Director of Media Operations Sarah Stewart replied, “The secrecy provision is part of state statute and not something that we could change through policy. That would have to be done at the legislature. We do not have any plans to ask them to change that.”

          World Executive Editor Susan Ellerbach responded, “We continue to think this is an important issue for Oklahomans. Our Open Records Requests on obtaining the Oklahoma Highway Patrol’s pursuit policy stand. While other law enforcement agencies in this state and throughout the country are open with their policies, we do not understand why OHP is not.”

“The World also will continue to file Open Records Requests in pursuit of information, data and documentation regarding OHP pursuits, not just its policy.”

So lawmakers may dodge this bullet at least for this session, since the deadline for new legislation has passed. But it certainly won’t go away. And given the life and death impact—and equally strong feelings on both sides—it is likely to make the other two issues look like child’s play.

Footnotes

[1] U.S. v. Schenck, 249 U.S. 47

[2] Jacobellis v. Ohio, 278 U.S. 184

[3] Brandenburg v. Ohio, 345 U.S. 444. The case was decided per curiam by 8 justices, with one court seat vacant due to the recent resignation of Abe Fortas. It involved a speaker at a Ku Klux Klan rally on a farm with about a dozen robed, hooded members some of whom—but not Brandenburg—carried firearms. It was filmed and broadcast by an invited television crew, including a cross burning and a speech in which he boasted of the size of the Klan membership in Ohio, said, “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” He then vowed a protest march on Congress July 4 of 400,000 members, who would then split into two equal groups with one to protest in St. Augustine, Fla., and the other in Mississippi. In a subsequent speech, also taped, he gave a similar speech omitting the references to “revengeance” and adding the sentence, “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” He was convicted of violating the Ohio Criminal Syndicalism Statute, which carries a prison term up to 10 years, but the high court overturned the conviction on appeal.

[4] SB 198 by Senator Rob Standridge (R-Norman) which cleared the Senate Committee on General Government but with the title stricken. Standridge agreed in interviews that the definitions in the measure required work to meet First Amendment concerns. Rep. Kevin McDugle (R-Wagoner County) is being added as principal House co-author, and a revised version of the bill has been offered as a floor amendment and is discussed later.

[5] SB 361Principal Author Senator Julie Daniels (R-Bartlesville)—[full disclosure, my state senator] and House Author Ben Lepak (R-Claremore).

[6] In the District Court of Cleveland County, Okla., State v. Burgess, Case No. CF-2017-1084.

[7] SB 361, (House author Rep. Tom Gann R-Inola), covers state colleges and universities and facilities of the state-authorized technology center schools operated under the State Board of Career and Technology Education.

[8] JD, University of Tulsa, 1979

[9] Co-author was John Tidwell, Oklahoma state director of the national organization Americans for Prosperity.

[10] Open Records Act, 51 OS 24A.8(F)(1)a,b; In the District Court of  Cleveland County, Okla., State v. Burgess, Case No. CF-2017-1084. While entire case file is relevant to this discussion, the documents on point are the Response Brief and Motion filed Sept. 28, 2018 by Tulsa World Media Co. answering a Department of Public Safety Combined Motion and Supporting Brief filed Sept. 13.

[11] The author did not attend the trial and transcripts were not yet finished. However, detailed news accounts were available from KFOR-TV in Oklahoma City and the Tulsa World and many details of testimony jibed with information in the case file, which was reviewed. The account of testimony is based n those sources.

[12] Its accuracy was confirmed to the author by the agency’s Director of Media Operations Sarah Stewart in writing March 12.

About the Author

This post was authored by guest contributor John M. Wylie II, who has spent five decades as a journalist and First Amendment advocate. The Oklahoma Hall of Fame Class of 2012 inductee started his career at The Grinnell College Scarlet & Black as a freshman and a month into the year was named news editor. He was managing editor his sophomore year, editor in chief as a junior and news director of KDIC-FM as a senior. He had a thriving freelance business covering multiple counties for The Des Moines Register and The Des Moines Tribune as well as UPI with occasional articles for Newsweek. He also filed about 50 stories a month with AP for member station KDIC while serving as president of the SPJ chapter and starting work at the national level to build the SPJ Freedom of Information national State-by-State FOI emergency network under the direction of Bob Lewis, Washington Bureau Chief for Newhouse News. He continued that work as president of the Kansas City Pro chapter while working at The Kansas City Star where he was part of the team that won the 1982 Pulitzer Prize for coverage of the Hyatt Regency Hotel Skywalk Collapse--until the Murrah Bombing the largest and most deadly pancake building collapse in US History. He was the newspaper's energy/environment writer (one f the first such specialists at any major US newspaper) and formed a new bureau to publish a weekly newspaper and upgrade daily coverage a fast growing Missouri suburban area south of Kansas City, before moving to Oklahoma in 1984 to buy the Oologah Lake Leader. He and his wife Faith built it into the state's most honored community newspaper, earning hundreds of state, national and international honors and serving two terms as president of his third SPJ chapter, Eastern Oklahoma. He was an early board member of FOI Oklahoma and a hated nemesis of public officials who believed the public should stay out of their "private" business. The couple retired from the Leader in 2017 and now he writes long-form articles on a wide range of topics for national client publications and edits novels written by wife under the name FL Wylie. They live with their cat Frank Sinatra on land once part of the Dog Iron Ranch where Will Rogers learned to ranch, ride and rope and literally next door across a cover from the White House on the Verdigris where Will was born in 1879. Two pairs of bald eagles have taken up year 'round residence outside his home office windows. He jokes that they are trained to pick up those who violate the Open Meeting and Open Records acts, fly 2+ miles to the center of the lake where the old river channel makes it several hundred feet deep and unceremoniously drop them 100 feet to their doom. The eagles employ their Fifth Amendment rights against self-incrimination.