Posted on by rjonakait · 3 Comments

My September 11

I was in my office in lower Manhattan early on that beautiful day, with late-summer temperatures and crystalline blue skies. I was looking over notes for teaching a law school class later. I took a break to deposit a check and get some cash from my branch bank. When I crossed West Broadway, I heard a plane and said to myself, “Boy, that is low.” I was a blasé New Yorker. I did not look up, but I heard the crash a few moments later. I saw no remnants of a plane, but I did see a hole and flames high up on a World Trade Tower. I watched mesmerized for a few minutes but then went to finish my errand. When I returned to the street, I stared some more at what I assumed was a terrible accident. I realized that I was watching people die. I saw objects plummet out of the Tower. I could not tell what they were from my distance, and I shut my mind from speculating what they were.

I decided that I wanted to see what the Tower looked like from the other side. When I was two blocks from the World Trade Center, the other plane hit the far side of the other tower. Flames shot out in my direction. People on the street started screaming. Some collapsed sobbing in doorways. Someone leaned out a window and said the Pentagon had been hit. Wailing increased.

I went back to my office and called the spouse. She had driven across lower Manhattan’s Canal Street earlier in the day from our Brooklyn home to her lab in Newark, New Jersey. From a window there she could see the Towers. I reassured her that I was okay, but I babbled on and on. I may have been crying. I finally realized that the phone line was gone and that she was no longer there. I could not see the Center from my office, but I went to the street corner where I could normally see the Towers. One was now a ghost. Only dust and other debris hung in the air where a Tower had been. I decided it was time to leave lower Manhattan.

I had driven to work. My usual routes home to Brooklyn were over the Brooklyn or Manhattan Bridges, both a few blocks from my office, but they had been closed. Picking up and dropping off people along the way, I drove to the next bridge over the East River. I was in line to cross the Williamsburg Bridge, with but two cars in front of me, when traffic officials signaled that this structure, too, was now closed. I went to the next crossing, got in line, and had it close just in front of me. That happened at the next and then the next. There was no way to drive to Brooklyn. I turned around and headed south. I parked my car on a Chinatown street and walked with hordes of others over the Manhattan Bridge roadway three miles to my Brooklyn home.

The mind operates on curious levels. Although I had driven over that span many times, I found myself thinking in the midst of the horror and shock of that day about the only other time I had crossed it on foot. In those days, no walkway on the Manhattan Bridge was open to pedestrians, but I once ran in a “Courthouse to Courthouse” race. It started by the Manhattan federal courts, went over the Manhattan Bridge, which had been closed to vehicles for the event, wound on local streets to a Brooklyn courthouse, and then reversed course to Manhattan. It was not a long race, but a tough one, all uphill or downhill. Now, on 9/11, it was not an organized run of a few hundred, but a solemn trudge by tens of thousands, as if we were extras in a Biblical epic movie, except this was all too real.

In mid-afternoon, a news report stated that some East River bridges were again open. I walked a mile from home to the Manhattan Bridge where one bus stood to ferry passengers over the river. I got to my car and quickly doubted the accuracy of the news report since I kept finding bridges closed. About to give up again, I found I could cross the Tri-Borough Bridge into Queens, which, of course, abuts Brooklyn, but then I found my usual way home from that Bridge was closed. Normally I would merge off the span on to the Brooklyn-Queens Expressway, but traffic officials were blocking the entrance to the elevated roadway. An officer told me that I would have to take local streets. I prided myself on knowing my way around New York City, but Queens was always a mysterious labyrinth. I literally drove in circles, seeing one particular building at least three times. Finally, I came upon a familiar intersection and was able to find a route home. In my wanderings, which were less than twelve hours after the first attack, I passed many entrances to elevated roadways. Every one of them was blocked by government officials. I can’t imagine how many such entrances there are in New York City, but I thought it was an amazing logistical feat to have closed every one of them so quickly. The City was effectively on lock-down.

Of course, this was one of the many feats, and one of the more minor ones, that New York City quickly accomplished in response to the terror. When I had gone to my car, I could see that Manhattan south of Canal Street, where my office was, had been effectively cordoned off—once again, a remarkable logistical feat. And in the coming days, I would learn about the efforts and coordination of emergency medical personnel and school guards and sanitation workers and firefighters and housing officials and welfare workers and many more. Volunteers stepped forward as New Yorkers pulled together, but New York would not have recovered as well as it did without the effective performance at all levels of government.

I was home alone. The crossings from New Jersey to New York City were closed. The spouse could not get home. She went to our summer house in Pennsylvania, but with the New York telephones out and in those days before cell phones, we could not talk. And I could not talk with my son who was then at a New England college.

Many details of the ensuing days have now been lost to memory, but I do remember waking up from a large crash that first night. I thought the City had been struck again, but it must have been only a vivid dream. I don’t remember when the spouse and I could be together again or when I drove to Massachusetts to see the son. I don’t remember when I returned to work in my office south of Canal Street. I do remember that when I could go to my office, I could no longer take the subway to my usual stop because it was under the World Trade Center and no longer open. Now I got off one stop earlier. When I emerged into the daylight, I was a hundred yards from the wreckage. Every time I set foot on the sidewalk, I got a headache and was confronted with the smells that I only hoped was smoldering plastic. In the evening when I went home in the dark, the lights from the nonstop work at ground zero were in front of me and the smells, which I did not have in my office, returned, along with the headache. I cried almost every day. The scope of the destruction was hard to believe.

I don’t remember how long it was before my routine began to feel somewhat normal, but there were long-lasting effects. Every time a low flying plane went over my head, no matter where I was, my heart began thumping. I still cannot watch footage of that day and have to turn off the TV. If an old movie shows New York City with the intact Towers, I have to look away. The aftermath of the attack lives on.

Posted on by rjonakait

Three Modern Free Speech Issues

I was asked by a leader of a current events discussion group to comment on some present free speech issues. I briefly commented on several.

1 . The first is the issue of self-censorship by media and other entities because of a concern about retributive governmental actions. Jimmy Kimmel is a prime example. Following the assassination of Charlie Kirk, Kimmel made comments on his late-night show, which were not disrespectful of TurningPointUSA leader, but included some misinformation regarding the political affiliation of the killer. Brendan Carr, the Trump-appointed Chair of the Federal Communications Commission (FCC), responded by saying: “We can do this the easy way or the hard way. These companies [Kimmel’s employers] can find ways to change conduct and take action, frankly, on Kimmel, or there’s going to be additional work for the FCC ahead.”

Kimmel was promptly suspended by ABC, a subsidiary of Disney. It was certainly reasonable for Disney to think it was being threatened by the Chair of the FCC. Over-the-air networks like ABC require licenses from the FCC. Moreover, two companies owning affiliates that air ABC programs were negotiating a merger that needed to be approved by the FCC. They could see the FCC Chair’s statement as a threat to that approval.

Though seemingly unrelated to free speech, these (not so) veiled threats have a direct impact on free speech. Sometimes even without a threat free speech is affected because of potential government action. We saw this dynamic in action with the $16 million settlement by Paramount Global (owner of CBS) of the Trump lawsuits against CBS. At the time of the settlement with Trump, Paramount had an $8 billion merger on the table that required government approval. What does this have to do with free speech, one might ask. Answer: Media companies (no company) should not be required to cave to the petulant posturing of a president in order to secure government approval for their business. And yet, Paramount Global felt, no doubt, that it had no choice but to cave to the political caprices of the president.

Perhaps there has always been a concern that free speech would result in government retribution. But it is more concerning now. First, the open vindictiveness of president Trump has changed things. In addition, the playing field has changed dramatically because the Supreme Court is consciously allowing the president more power that increases the possibility and feasibility of presidential retribution. Here’s how: Agencies like the FCC or the Federal Trade Commission or the Securities and Exchange Commission were meant to be independent of the president. Ninety years ago, the Supreme Court held that commissioners on such agencies could not be removed at the whim of the president, but only “for cause.” The Supreme Court has not officially overruled that precedent, but it effectively has done so. The Supreme Court has now allowed Trump to “temporarily” remove commissioners while litigation goes on about whether the removals have been lawful. It is expected that the 1930s precedent will be formally overruled this year. In other words, the previously independent agencies will no longer be independent but must answer directly to the president. Thus, companies who need agency approval for something will naturally be concerned that they will be punished for actions that displease Trump. This is affecting free speech in ways it was not before.

An aside: Might conservatives have a point in the Jimmy Kimmel affair? Four over-the-air late- night hosts use the public airwaves: Stephen Colbert, Jimmy Fallon, Seth Myers, and Jimmy Kimmel. All can be characterized as anti-Trump. What if all were the comedy equivalent of Fox News? How would liberals react?

2. The second is another, non-Kimmel free-speech issue occurring in the aftermath of Charlie Kirk’s assassination.

A recent newspaper article states that over 145 people have been fired or disciplined by their employers for comments about Charlie Kirk. These data are from public records, but there may be many more that haven’t been reported. Often the comments have been innocuous. For example, an employee of a public university commented on her private Facebook page, “If you think Charlie Kirk was a wonderful person, we can’t be friends.” She also said that she believed in the Resurrection and was praying for his soul. She was fired for these comments.

All the firings of employees for their comments while not on the job raise free speech issues, but not all raise First Amendment issues.  The First Amendment applies only when the government does something that limits speech. Thus, it comes into play when a public employer disciplines public employees for their speech. However, there are few legal restraints on private employers who often can fire for any reason.

But something new is also operating in this arena. Online armies are scanning for social media comments to get people fired. Those who have made comments critical of Kirk are often doxed and flooded with ugly and threatening messages scaring them and others into silence. The online scrollers want to punish and prevent speech they don’t like.

While the private firings and the doxxing may not raise First Amendment concerns, they do raise important free speech concerns. We need more discussion of how free workers should be to express their views while not on the job, and, further, how to prevent some of the terrible excesses of social media and the internet.

3. The new Pentagon leadership says it will require credentialed journalists at the military headquarters to sign a pledge to refrain from reporting information that has not been authorized for release — including unclassified information. Reporters, in effect, can publish only press releases. Journalists who don’t abide by the policy risk losing credentials that provide access to the Pentagon.

I asked a friend who had been a media attorney whether he knew of similar past directives. He says this appears to be unprecedented.

He did point out that this administration (and others) have cut off reporters who published stuff the president didn’t like. (Witness the AP and the “Gulf of America” controversy). But these restrictions on free speech were relatively mild. They only limited the access of individual reporters. They were not a blanket restriction on what can be reported.

The Hegseth directive for the first time tries to make those covering the Pentagon into something like state media. You may publish only what the government authorizes. We have not had this Pravda-like restriction before. If it stands up in court, it would be a titanic and dangerous change in how the government, the press, and the people interact with each other.