New HBO documentary spotlights First Amendment

Monday, June 22, 2009

WASHINGTON — Hundreds of First Amendment supporters gathered at the Newseum June 18 to watch an upcoming HBO documentary, “Shouting Fire: Stories from the Edge of Free Speech,” by Oscar nominee and filmmaker Liz Garbus.

The film, to debut June 29, includes testimonies from people who were fired from government jobs, suspended from school or arrested while exercising their First Amendment rights to protest at the 2004 Republican National Convention.
In a short panel discussion after the viewing, Garbus joined First Amendment lawyers Paul Smith, her father Martin Garbus, and moderator Adam Liptak, Supreme Court correspondent for The New York Times, for a discussion with the audience about the documentary and the state of the First Amendment.

Liz Garbus said “Shouting Fire” shed light on, among other things, the pressures exerted on minority communities to be silent. In the documentary, Debbie Almontaser described her struggles with the New York City School Board of Education to keep her job at a dual-language public school after giving an interview to the New York Post in which she discussed “intifada,” meaning an uprising in the Palestinian territories. Ms. Garbus said the free speech of Arab-Americans such as Almontaser was hampered in a post-9/11 world because there’s a risk they will be confused with extremists.

The film is “about where these boundaries are tested,” Liz Garbus said. “You can’t talk about intifada and keep your job.”

Echoing his daughter’s ardent belief in the First Amendment, Martin Garbus expressed his disappointment in the Obama administration’s decision to withhold photos of Guantanamo detainees. He called it “a terrible mistake.” He said one either has an “abstract commitment to the First Amendment or you actually believe in it.” Garbus said he believed the photos would trickle out and become public anyway, and that “there is a price that’s going to be paid” as a result.

Although a majority of the public doesn't always support First Amendment rights, Martin Garbus said, it's crucial to preserve them for the sake of an open government and individual free expression.

Paul Smith, a noted First Amendment and gay-rights attorney who successfully argued Lawrence v. Texas (2003), raised questions about the documentary’s portrayal of the San Diego student, Chase Harper, who was disciplined for wearing a T-shirt proclaiming “homosexuality is shameful.” Smith argued the facts of the case were more complex in that there had been an ongoing pattern of harassment against gays at the high school.

Also during the discussion, Liptak asked Martin Garbus about an exchange between Justice Potter Stewart and Alexander Bickel during the oral arguments in the Pentagon Papers case (1971). “Let us assume,” asked Justice Stewart, “that when the members of the Court go back and open up this sealed record we find something there that absolutely convinces us that its disclosure would result in the sentencing to death of 100 young men whose only offense had been that they were 19 years old and had low draft numbers.  What should we do?” Bickel tried his best to avoid answering the hypothetical question, but Stewart persisted: “Would you say the Constitution requires that it be published, and that these men die, is that it?” Bickel replied: “No. I am afraid that my inclinations to humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort.”

Liptak asked Mr. Garbus if he would have handled the case the same way. Garbus suggested he might not have made that concession because, being more familiar with the top-secret documents (a copy of which had been at his home for weeks), he was confident that the release of the papers would not have posed any danger to national or troop security.

“Shouting Fire: Stories from the Edge of Free Speech” will air June 29 on HBO from 9-10:15 p.m. ET/PT.

Rachel Seeman Collins is an intern at the First Amendment Center. She holds a bachelor's degree in journalism and is working on her master's in mass communication at Miami University in Ohio.

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