‘Law & Order’: lights, camera, First Amendment

Monday, June 7, 2010

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Throughout its 20-year run, the hit television series “Law & Order” was known for its ripped-from-the-headlines style. Often, however, its topics came from a much older source — the U.S. Constitution.

The long-running series, which aired its final episode on NBC on May 24, frequently featured detectives and prosecutors grappling with difficult First Amendment questions.

In the 1999 episode “Hate,” police believe that a neo-fascist youth organization is responsible for the brutal death of a high school student, found savagely beaten and tied to a tree in Central Park.

Detectives think they have identified the perpetrators of the crime, but should the district attorney try to prosecute the white supremacist who incited the violent crime?

Executive Assistant District Attorney Jack McCoy argues the state should charge the racist leader who incited others to violence with his speech.

“Utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force,” McCoy argues, quoting Justice Felix Frankfurter’s 1941 opinion in the U.S. Supreme Court case Milk Wagon Drivers Union v. Meadowmoor Dairies.

“His hate just breeds more hate,” McCoy says. “It doesn’t serve any other purpose.”

To which McCoy’s colleague Abbie Carmichael responds: “As officers of the court, our constitutional obligation is to protect — not stop — even the most controversial speaker.”

Unpersuaded, McCoy tells Carmichael that the neo-fascist leader “thrives by exploiting these gray areas in the First Amendment.”

Carmichael rejoins that the leader is “not worth gutting the First Amendment over.”

That exchange may have been one of the most direct treatments of the First Amendment in the show’s history, but it is not the only implication of First Amendment issues in the long-running series.

Even in its 20th and final season, the show featured an episode about whether anonymous online comments calling for violent action against an individual constitute free speech.

In “Human Flesh Search Engine,” an online forum posts the home address and building access code of a man caught sending a text message while driving, leading an insane woman to enter the man’s home and kill him in an extreme act of vigilante justice.

The state initially tries to argue in the case that the Web site directly incited violence, analogous to the First Amendment’s famous “fire in a crowded theater” exception, but the judge rules that exceptions to the First Amendment must be granted only in the most narrow circumstances, forcing the district attorney’s office to resculpt its case against the Web site.

The judge is “living in the 20th century,” prosecutor Michael Cutter tells now-District Attorney McCoy. “Words on the Internet have consequences.”

“Actually,” McCoy replies, “she’s living in the 18th century, when the Bill of Rights was written, which on balance is a good thing.”

The premise for the episode, online-driven vigilantism, may sound like something only Hollywood could conjure, but it is actually based on a phenomenon in China in which criminal justice is outsourced online. “The goal is to get the targets of a search fired from their jobs, shamed in front of their neighbors, run out of town,” according to a March feature in The New York Times Magazine on the trend.

The question of Internet free speech is raised in another 2009 episode when an online gossip columnist, citing the First Amendment and its freedom of the press, refuses to disclose a source who e-mailed him racy pictures of a news anchor who has been murdered.

For all “Law & Order” did to raise public awareness of the First Amendment, however, the program — like all television shows — did not always get the facts exactly right. In a 1997 episode, a character purports to recite the First Amendment but omits two of its five freedoms: “Congress shall make no law abridging the freedom of speech or the right of the people to assemble and petition the government for a redress of grievances.”

So much for the freedoms of religion and the press.

Despite mentioning only three of the First Amendment’s freedoms, the character still displayed a better knowledge of the First Amendment than most Americans, naming the two rights least frequently identified by participants in the First Amendment Center’s annual State of the First Amendment survey: assembly, named by 14% in 2009, and petition, mentioned by 4%.

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