[NYTr] Krassner - The First Amendment: a Dialogue

[All the News That Doesn't Fit]

Counterpunch - Nov 20, 2007
http://www.counterpunch.org/krassner11202007.html


The 1st Amendment: A Dialogue

By PAUL KRASSNER

The following correspondence relates to my previous blog titled 
"Don Imus Meets Michael Richards."

    Dear Mr. Krassner:

    I congratulate you on writing an interesting piece. However, your
article contains the following quote: "[Michael] Richards' lawyer,
Douglas Mirell, said that while Richards' comments were 'inappropriate,
they are not legally actionable' and that, if Richards faced mediation
or a lawsuit, he intended to oppose a cash settlement under his
constitutional right to free speech -- an incorrect claim, since the
1st Amendment applies only to censorship by the government." [Emphasis
added.]

    In point of fact, whenever anyone invokes the power of the
judiciary (an arm of government) to try to enjoin or seek monetary
damages for speech they find disagreeable, the First Amendment presents
itself as a viable defense. It is why, for instance, defamation (libel
or slander) actions can be defeated on constitutional grounds (think
New York Times v. Sullivan). It is also why even when one tries to
skirt the rules of defamation (by, for instance, claiming intentional
infliction of emotional distress, as the late Jerry Falwell did when he
sued Hustler magazine), the First Amendment can likewise be
successfully interposed as a defense.

    Sincerely,
    Doug Mirell

Dear Doug Mirell,

Of course I apologize, both as a defender/practitioner of the 1st
Amendment plus having a deep respect for free-speech attorneys.
Basically, though, I believe we are actually in agreement: I meant that
If Michael Richards were to make a cash settlement, it would not be for
censorship, it would be because he hurt the feelings of the heckler,
publicly humiliated him, caused emotional distress, etc.; and when
Hustler ran a full-page parody--identified as such--of the Drewer's
Whiskey ad, with Jerry Falwell confessing to having sex with his mother
in an outhouse, Falwell sued Larry Flynt, not for libel, but rather for
hurt feelings, etc. The Supreme Court ruled unanimously for the
defendant. Is this spitting hairs or is it nit picking?

Cordially,
Paul Krassner

    Paul,

    The claim by Falwell against Flynt was for infliction of emotional
distress. And this is precisely the same claim that Gloria Allred
publicly asserted against Mr. Richards on behalf of her then-clients.
Both claims were -- and are -- equally specious.

    Doug

And, recommended by my attorney friend, Bob Bloom:

1. Apologize to the First Amendment.

2. Don't apologize to any lawyer, any time.

3. Whenever you do have to apologize (to any amendment, especially the
Fifth or the Sixth), be sure to say that you take full responsibility,
even if you don't. It works. It's like Reagan saying, "mistakes were
made", as if he had nothing to do with it.

4. Continue to find it impossible to watch Seinfeld re-runs because
it's so unpleasant to look at Richards' face any more.


[Paul Krassner is the editor of The Realist. His books include: Pot
Stories for the Soul, One Hand Jerking and Murder at the Conspiracy
Convention. He can be reached through his website:
http://paulkrassner.com/ ]