A NEW GENERATION OF YELLOW JOURNALISM: New Media, Censorship, and the First Amendment Part I

Over the past few months I have not been able to go a single day without hearing about fake news; Facebook’s and Google’s confirmation bias bubble; and the polarization that these have created in the wake of the election of President Donald Trump.   However, this is not anything new. We have heard stories recently about how a fake news story about the Clintons led a person to shoot up a pizza parlor in Washington D.C.; how fake news stories about both candidates potentially affected the outcome of the election.

Yet, in the late 19th century fake news was at the heart of a fierce competition for readership between two New York papers: Joseph Pulitzer’s New York World and William Randolph Hearst’s New York Journal. Both would use fantastical headlines and patently fake news stories to try and out sell the other. This came at time when tensions with Spain over Cuba and the Philippines were high. Most of the stories were focused on a growing anti-Spanish sentiment culminating in a story about a sinister plot by the Spaniards to sink the U.S.S. Maine. This era of yellow journalism ended shortly after the Spanish American War. Heart’s paper the New York Journal published an editorial calling for President McKinley’s assassination shortly before it occurred. There was no significant tie between the editorial and the assassination, yet it shocked both Hearst and Pulitzer out of their sensational attention grabbing head line phase.

Why did the government allow both news-papers to publish false stories?

The First Amendment forbids Congress (and through the Fourteenth Amendment, States and local governments) from making any law that abridges the freedom of speech and the press.  The Supreme Court on multiple occasions has protected these freedoms stating that the only cure for false speech is true speech. Even if it wanted to the government is unable to protect the public from fake news because of the strong prohibition on any limitations of speech by the government. The same prohibition does not apply to private entities. Thus, social media sites such as Facebook and Twitter can and do censor speech. Facebook will censor and or remove anything that is obscene, considered hate speech, overly offensive and or a call to violence.  Facebook primarily relies on the user community to report posts which are then reviewed by subcontractors who decide as to whether the offending post should be taken down. This is something that only a private entity could do, because as stated above (with a few exceptions) the government would be unable to censor these posts.

The question remains, is having Facebook, Twitter and other such entities censor speech a good thing? Should it be treated like yellow journalism was in the 19th Century, allow fake news to run its course and wait for the market place of ideas to correct itself? I will pick this up next time.


U.S. Diplomacy and Yellow Journalism, 1895–1898
A Time Line of Yellow Journalism
President William McKinley: Assassinated by an Anarchist
Whitney v. California, 274 U.S. 357 (1927)
Justice Brandeis’ Concurring Opinion


The Ballad of a 4L: What Doesn’t Kill You Makes You More Efficient

It was a muggy August evening in 2013 when I hustled into the lobby of UMass Law School for my first day of orientation. I was sweating, running late due to traffic coming up Route 195 from my office. After hurrying up the stairs two at a time, I slid into a seat in the large lecture hall, surrounded by 80 other 1Ls.  While waiting anxiously for the session to start, I fidgeted with the brief I had prepared. When Dean Bilek stood up to address our newest class of UMass Law students, she looked around at all of us and smiled. “You’re all getting just a small taste of what your classmates going to school at night will go through…”

Working full time and going to law school part-time at night and on the weekends is nothing short of grueling. It requires us to wear many different hats simultaneously. Not only are we employees, bosses, and co-workers, but we are also parents, partners, and friends. Somewhere in all of that, we are also students.  Night student life requires us to work an eight hour day, drive to school, and sit in class until 9:30 at night before returning to whatever far flung corners of the state from which we come. In order to fulfill scholarship requirements and pro bono obligations, we use up vacation time, or give up our one day off a week, because Saturdays have been sacrificed to early morning classes and afternoons studying in the library. When asked what our plans are for the summer, we either “take a break” by only working our day jobs, or we punish ourselves even further by taking summer classes in an effort to complete our degrees in a shorter period of time. I cannot count the number of times I’ve arrived home at 10:00PM after class, dropped my heavy backpack on the floor and burst into tears, because the thought of having to pack a lunch and get ready for work the next day was almost too much to bear amid the overwhelming exhaustion of the daily night student grind. More often than not, I’ve felt like a ship passing in the night to both roommates and classmates, tenuously connected to campus when the reality of life beyond school reemerges well after sunset. A professor once asked a group of us if we’d attended the ABA accreditation open meeting, an opportunity for students to interact with the site team and exemplify the diversity of the UMass Law student body. We all looked around at each other. “It started at 4:30? I don’t get out of work until 5:00.”

And yet, we night students contribute a wealth of professional experiences to this law school community, carefully developed before we even had the opportunity to step on campus. We are taskmasters and we are efficient-mostly because we don’t have a choice.  And yet, we excel. We are Public Interest Law Fellows and Law Review Editors. We are TAs and interns and 3:03 student attorneys. For four or five years, we wear many different hats. But when we walk across that stage to accept our degree, we are all wearing the same hat: graduate. Attending law school at night while working full-time may have almost killed us, but when we come out of it alive, it is with the confidence that we really can do anything.

What Steve Jobs Taught Me About Brexit

When Britain ended its economic ties with the European Union, I found myself unabashedly ill with rage. Why? Because I believe this decision was made without vision as to what the future of the UK will and should be. Severance was done without any regard for what consequences lie in wait. People were afraid of immigration and terrorism and convulsed in stupendous confusion by lashing out involuntarily at a symbol of internationalism: the EU. Leaving the EU was a nationalist, reactionary move made from fear, not a move following a thoughtful mission pursuing a clear vision, as demonstrated by the British public’s frantic Google searches asking “what is the EU” just hours after the vote was concluded. This is not to diminish the massive policy challenges that Britain faces from either immigration or terrorism, but rather to emphasize the massive economic and geopolitical ramifications of this sudden, ill-understood severance. What, for example, will become of Britain’s farmers who received £2.4 billion pounds in subsidies last year?  This should serve as a reminder of what may lie in wait for the U.S. electorate should it be swayed by similarly misguided rhetoric.

I think this move was made by people Steve Jobs would have described, as he did in his famous Stanford speech, as people whose values are “old and need to be washed away.” This has nothing to do with age. This has everything to do with vision. As Jobs goes on to describe, these conservative separatists are “trapped by dogma, which is living with the results of other people’s thinking.” Populist conservatives and their followers are trapped by the rhetorical ignorance of nativism that plagued the 20th century repeatedly, and will follow us for the foreseeable future throughout the 21st. 

But what does this have to do with me? How does this play into my vision and my mission as a law student, as a writer, and as a United States citizen? 

My mission at this moment is to improve myself mentally, academically, and emotionally for the rigors of political life and change. My vision for the future is to help lead and inform a constituency of like-minded individuals into a future with dialogue, innovation, and equal opportunity for all.  When I leave law school and management school, I want to work for the State Department to gain experience with the realities of our international relations, using the skills I have gained to succeed there. After that work as a public servant, if I am so lucky, I would like the opportunity to serve as a policy-maker. I have a clear vision of what the future could be for me, and what I believe could bring about a better world for my country and humanity. I hope that by learning the realities of business and the law, by meeting more people who see that we must build coalitions among ourselves and other peoples, I can navigate the harsh realities with thoughtful mission to make it happen. 

Frankly, I cannot go quietly into a future knowing, as “Brexit” demonstrates, that it is still being so swayed by fear to accept ignorance of the negative externalities . It offends everything that previous generations have taught us through their follies and triumphs. World War I. World War II. The Holocaust. Genocide in Rwanda. Genocide in Bosnia. How can we face ISIS, those cowards and abusers of human dignity, when we still hold on to our unconscious reaction of “Let’s just think about us and forget our commitments to the rest of the world?”

We can’t. We simply cannot survive or afford to. That is why my mission is to become the best individual I can through my legal and management studies, so that I will be more capable to achieve whatever else we must to bring about our vision of a better world.

Steve Jobs wanted to make a dent in reality with his time here, and by all measures he did that with his all too brief time on this planet. One man was able to accomplish that through his intellect and courage to go forth purposefully. Imagine what we could all do, if we took that same Jobsian challenge together. What a wonderful world this could be. As Jobs said, “Remember we are all going to die, so we have nothing to lose.” So let’s give it shot and make a dent not for profit, not for fame, but for each other, for our kids, and for a better tomorrow.