There’s been a disturbing national trend as of late: authorities dusting off obscure laws, or conjuring up far-fetched legal theories, to try to criminalize speech they don’t like.
It looked like more of the same when news broke this week that the Cook County state’s attorney had charged two Northwestern University students with a crime after they distributed parody flyers objecting to the school’s response to the Israel-Gaza war. The students designed the flyers to resemble the front page of The Daily Northwestern, the school’s student newspaper, and placed them over copies of the paper.
The Daily Northwestern’s editorial board members understandably didn’t appreciate their newspapers being tampered with. But they put their grievances aside to stand up for free expression and object to their parent company’s ill-advised decision to report the matter to law enforcement. Their actions may have prevented yet another anti-speech prosecution.
After the parent organization, Students Publishing Company, reported the incident to police, investigators identified two students responsible for the flyers. Prosecutors decided to comb through the criminal code for an excuse to throw the book at them, settling on charges under a law against theft of advertising services. One former public defender told The Intercept that they’d never heard of anyone being prosecuted under the little-known law.
The students, of course, didn’t steal any newspapers or advertising services (whatever that means) by placing their obviously fake front page over the newspapers. The real content of the papers, ads included, remained available for all to see. No one with any sense could have mistaken the flyer for the actual front page. And there’s no way the students could’ve expected to face up to a year behind bars over their relatively tame act of civil disobedience.
The Daily Northwestern used the best weapon it has — news ink — to help the students fight back. The editorial board called SPC out on its overreaction, publishing an editorial demanding it ask the state’s attorney to drop the case. Despite their objections to the students’ choice of protest tactics, they recognized that involving the criminal justice system was a drastic and entirely unnecessary escalation.
After all, newspapers are often the victims of the same kind of overreach the students are facing. Police in Marion, Kansas, raided the Marion County Record last August, purportedly to investigate whether reporters somehow committed identity theft by confirming a news tip on a government website. In October, authorities charged a reporter and publisher in Alabama with violating a grand jury secrecy law — plainly inapplicable to journalists — by reporting on a criminal investigation of a local school board. Six months before that, an Arizona state senator got a restraining order against a reporter for knocking on her door.
There’s more. A citizen journalist in Texas is hoping to go to the Supreme Court with her lawsuit over an arrest for violating an archaic law against soliciting “nonpublic information.” The City of Los Angeles last week sued a journalist for publishing information that the city itself gave him. And the mayor of Calumet City, Illinois, had citations issued to a journalist in October for asking public employees too many questions. The list, unfortunately, goes on and on.
This time, a newspaper was the “victim” rather than the accused. But the Daily Northwestern’s editorial board had the foresight and moral clarity to oppose similar antics even when the shoe was on the other foot. Searching for novel legal bases to lock college kids up for speaking their minds about one of the most important issues of our times is as un-American as it gets. The First Amendment instead demands prosecutors search for any available reason to not punish speech, including -– in fact, especially — controversial speech that some people find upsetting.
And the SPC responded to the editorial (as well as a change.org petition that received thousands of signatures), announcing it would hire lawyers to encourage the state’s attorney to resolve the matter without a prosecution. SPC’s board of directors claimed they didn’t realize that reporting a “crime” to law enforcement might lead to criminal proceedings it wouldn’t be able to control. That’s hard to believe.
And you’d hope that a newspaper publisher would have had more respect for freedom of expression and the breathing room it needs to thrive, or at least the business sense not to undermine its own interests by encouraging anti-speech prosecutions. But at least they worked to clean up the mess they initiated.
And then yesterday, prosecutors from Cook County State’s Attorney Kim Foxx’s office dropped the case. They deserve little credit for that — they should’ve known better than to bring the charges in the first place. But the student journalists at the Daily Northwestern deserve plenty of credit for overlooking their personal feelings about the students behind the flyers and showing what an editorial board willing to stand up for free speech can accomplish.
Professional journalists should take note. For example, those who can’t put aside their gripes with Julian Assange to cover the threat his prosecution poses to their own rights. If more newspapers published editorials like the Daily Northwestern’s, maybe the U.S. Department of Justice, like the Cook County State’s Attorney, would reverse course.
