On February 7, 2018, the Albuquerque Journal published on its editorial page an inflammatory political cartoon depicting a frightened white couple holding their hands up apparently being robbed by two MS-13 gang members pointing a gun at the couple, and depicting a terrorist strapped with lighted bomb fuses and holding a bloody machete.

The man is quoted telling his wife: “Now Honey … I believe they prefer to be called ‘Dreamers’ … or future Democrats …”

The cartoon sent the clear, false and inflammatory message that all dreamers and Democrats are criminal gang members and terrorists willing to kill or commit suicide to kill.

The cartoon was swiftly condemned by readers and elected officials, both Republican and Democrat, as being “misguided”, “bigoted”, and described as an example of “ignorance, racism and hatred”.

A protest erupted over the cartoon at the Journal Center and others called for people to cancel their Albuquerque Journal subscriptions.

Within two days, the Albuquerque Journal issued an apology and said it would better screen political cartoons it publishes on its editorial page.

In describing the Journal’s rationale for choosing to publish the cartoon, Editorial Page Editor D’ Val Westphal said “the mission of an editorial page is to explore all sides of an issue, to make people think and debate and examine closely the opposing view of an argument. Unfortunately, this cartoon did not inspire that kind of discussion.”

Under the United States Constitution First Amendment guarantees of freedom of speech and of the press, the Albuquerque Journal had every right to publish the political cartoon on its editorial page, but that does not mean it should have published it.

Publishing the cartoon reflected very poor judgment or lack of common sense by the editors.

The Albuquerque Journal’s apology was viewed by many as an effort to control the damage and lacking sincerity and somewhat hollow.

“ABSENCE OF MALICE”

Our first amendment rights of free speech and of the press have limitations when it comes to libel, slander, and malicious statements that harm others or to insight murder or violence.

An act of malice involves the intentional commission of a wrongful act, absent real justification, with the intent to cause harm to others.

In other words, an act of malice is considered an intentional violation of the law that injures another individual in some manner.

“Absence of malice” refers to the legal defense against charges of libel (written) defamation, and is used in journalism to illustrate the conflict between disclosing damaging personal information and the public’s right to know.

If something is published or telecast with an “absence of malice”, there is no liability owed to the person or subject harmed with the publication considered freedom of speech.

In the context of civil defamation actions for libel and slander for damages, a person who is found to be a “public figure”, such as an elected official, cannot succeed and recover damages in a lawsuit for false statements unless there is proof that the writer or publisher acted with actual malice by knowing the falsity or by reckless disregard for the truth and there must be actual and provable damages.

A LESSON LEARNED FROM A CLASSIC MOVIE

In the 1981 classic movie “Absence of Malice” starring Paul Newman and Sally Field, there is a scene where a Deputy United States Attorney was sent in from Washington talking to an elected District Attorney, an appointed federal Assistant United States Attorney and a newspaper reporter after the Assistant United States Attorney and elected District Attorney leaked information in a federal case to dupe a newspaper reporter to write a false and misleading article.

The newspaper ran the false, front page story where the woman subject of the story committed suicide because of it.

Before committing suicide, she ran around her neighborhood desperately trying to pick up all the delivered morning newspapers so no one would see the front-page headline and read the false story.

Although the newspaper story was false, the fact that the reporter and paper were duped, there was an “absence of malice” by the newspaper thereby negating liability for the woman’s death.

The Deputy United States Attorney said something to the duped reporter that has always stuck with me during my public service career as a prosecutor and elected official:

Elected and government officials and readers cannot demand, instruct or tell the press or any reporter what to write, how to write it, when to write it, what tone it should take, nor what sources are used, but they damn well can demand and expect the truth and accuracy in the published reports and are entitled to corrections and retractions.

Sometimes apologies and retractions are simply not enough to repair the damage done.

In the movie, the Assistant United States Attorney was fired, the elected District Attorney was left to deal with a negative publicity nightmare that would have an impact on his reelection, while the reporter became the news with the newspaper’s credibility undermined.

DIFFERENT STANDARD FOR POLITICAL OPINIONS AND RHETORIC

I once listened to a very prominent civil rights attorney who worked for the ACLU give a presentation to a civic group.

The civil rights attorney said private citizens can walk up to a uniform police officer and call them any name in the book they wanted to, even using the “F word”, in protest, and he said it is protected free speech.

He then went on to say “But why the hell would you do anything that stupid to anyone who is carrying a gun?”

There is a very old case taught in law school where the United States Supreme Court found free speech does not mean you can stand up in a packed theater and falsely yell “fire” causing a stampede for the exits.

The point is, protected free speech and of the press have limitations that requires the use of common sense.

What is true and can be expected is that newspaper editorials, editorial political cartoons and for that matter political opinions do not have to be accurate nor even be truthful for the reason editorial content and political opinions are considered protected free speech, especially against public figures or elected officials.

Just because something is protected free speech does not mean you go ahead and publish it or even say it.

The public and voters need to hold responsible and accountable those who publish or voice political opinions for what is said in editorial opinions or reflected in the political cartoons when violence against others, hatred and racism and bigotry toward any class is being promoted.

CONCLUSION

What is troublesome is the level of political discourse in this country that is being held out as “free speech” or of the press that has violent overtones, that promotes violence, promotes racial discrimination, promotes religious intolerance against others, and promotes hate and distrust of others, and that denigrates women and minorities.

Too much intolerance is being promoted by our elected officials and public figures and the press seems to go along with it when it publishes political cartoons such as the one published by the Albuquerque Journal.

President Donald Trump has done more than his fair share of promoting intolerance, racial discrimination, promoting religious intolerance against others, promoting hatred and distrust of others, and he denigrates women and minorities.

After watching what has been happening in Washington during the first year of President Donald Trump’s term, we must wonder what is our country coming to, what are we becoming as a nation, and realize what we are we doing to ourselves and our freedoms.

We are a nation of laws and institutions, and I am absolutely confident things will unfold as they should in Washington despite so called “free speech”, “freedom of the press” and political cartoons that are nothing more than promoting violence, discrimination, racism, hatred and bigotry against others.

As Americans, we need to come together, be tolerant and respect each other, confront our demons and set aside our differences and come up with solutions.

We must seek within ourselves to find solutions to our problems and our differences, without violence and hatred and contempt for each other before we destroy ourselves, our country and the freedoms we cherish in this country, including our freedoms of the press and speech.

We should not forget what happened in 2015 when two terrorists forced their way into the offices of the French satirical weekly newspaper Charlie Hebdo in Paris when it published a satirical cartoon involving a religious figure.

Armed with rifles and other weapons, they killed 12 people and injured 11 others at the newspaper because they considered the cartoon published sacrilegious.

What happened in Paris could happen here in the United States one day on some level if we are not careful and use our common sense when we exercise our freedoms of speech and the press.