by Dave Kopel
Rocky Mountain News. July 12, 2008
Media coverage of an anti- John McCain protest in Denver on Monday raised important free speech issues - but failed to provide a full picture of the speech suppression problem.
Former Denver Post reporter Carol Kreck received a ticket from the Denver police when she carried a large sign in the Galleria walkway outside the building at the Denver Center for the Performing Arts, where John McCain was inside taking questions from a town hall meeting.
The Post's Web site on Tuesday featured a video of the incident filmed by ProgressNowAction, an organization created to promote pro-Democrat, anti-Republican activism. The source of the film was not identified until near the end of the film, and it would have been better had the Web site noted the source immediately.
MSNBC television featured a slightly different version of the same video on a segment in its nightly opinion program Countdown with Keith Olbermann, in a segment hosted by Rachel Maddow. MSNBC, like the ProgressNow Web page touting the Kreck case, created the false impression that the elderly librarian was acting on her own. They neglected to mention that Kreck was participating in a group demonstration organized by ProgressNow, and was carrying a sign which she had been given by the organization. (This latter fact was brought out in a sympathetically pro-Kreck column by Bill Johnson of the Rocky.)
On Wednesday, the Post provided perspective from legal experts. Precedent from the 10th U.S. Circuit Court of Appeals has specifically held that, even though the DCPA Galleria was partly built with tax dollars, it is not a public forum where speech cannot be limited.
The Post also quoted Kreck's attorney David Lane, who pointed to a Colorado Supreme Court precedent saying that private shopping malls were, despite being privately owned, required to allow some free speech activities on their property. For the benefit of readers who are not First Amendment experts, the Post should have explained that the 10th Circuit decision about the Galleria involved the U.S. Constitution's First Amendment, whereas Lane is arguing for a more pro-speech rule pursuant to the Colorado Constitution's free speech provision.
Kreck is identified by the media as a 60- (or, sometimes 61-) year-old part-time librarian, and sometimes the articles say that she is a librarian for an education think tank. It would be interesting to know which one.
Most media coverage has very closely followed the framing created by ProgressNow's edited video, focusing exclusively on Kreck. A more complete picture was provided by the Colorado Independent Web site, which on Monday reported that Kreck was one of several ProgressNow protesters who were told to desist. Among them was a man dressed as a peapod, who was making the point that McCain and Bush are two peas in a pod.
Thus far untouched by the Colorado media is any report on the Obama campaign's policy regarding the bringing of anti-Obama signs into places where Obama is speaking. Although ProgressNow has no obligation to put things in perspective, the mainstream media do. While MSNBC's host and guest expert from the left-wing Huffington Post Web site mused about the McCain/Bush hostility to protests, a more serious journalistic approach would note that the Obama campaign is also guilty of suppressing protests.
For example, according to the venerable left-wing magazine The Progressive (Dec. 12, 2007), police acting at the behest of the Obama campaign expelled three peaceful anti-nuclear waste protesters from the area outside a University of South Carolina stadium where Obama was scheduled to speak.
Post columnist Susan Greene made a start at examining the Obama side of Colorado speech control. On Thursday, she wrote that "Kreck's citation came the same day Englewood's police chief convinced the City Council to pass an anti-picketing ordinance meant to control protesters in August. A note written by the city's attorney's office inexplicably says the language of the measure was 'recommended by the DNC' " (Democratic National Committee.)
The Colorado media should follow up by asking the Obama campaign (or its proxy, the DNC) whether they intend to allow anti-Obama signs inside or outside Invesco Field when Obama gives his acceptance speech in August.
Instead of just accepting the "librarian" frame of ProgressNow, the Colorado and national media should have - after four days of covering the same story - gone further in examining the anti-free speech inclinations of both major-party presidential candidates. Although Keith Olbermann would never tell you, the evidence suggests that when it comes to squashing protesters, McCain and Obama are two peas in a pod.