Tag Archives: Free Speech

Civility and Free Speech

At 5:00 pm today, I will participate in a panel discussion at the McKinney School of Law (my alma mater), focused on whether the Free Speech protections of the First Amendment tend to promote incivility.

Back in the day, when I was Executive Director of Indiana’s ACLU, I mounted a campaign through the organization’s newsletter to promote civility. That campaign caused consternation for some members, who worried that an emphasis on civil discourse somehow undermined, or was evidence of less than robust support for, Free Speech.

They missed what I believe to be the central point.

Philosophers from John Stuart Mill to Alexander Mieklejohn have argued for protection of speech and the free exchange of ideas; they have seen the “marketplace of ideas” as the absolutely necessary foundation of the search for truth.  (As Mieklejohn famously said, People who are afraid of an idea—any idea—are unfit for self-government.)

The nation’s Founders understood that all ideas, no matter how noxious, should be available for discussion. They certainly didn’t protect speech because they underestimated the danger ideas could pose; they knew how powerful –and damaging–ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—what sort of speech should be permitted– was far more dangerous.

But that is where civility comes in. If free speech is to achieve its purposes—if it is to encourage us to consider and vet all ideas, consider all perspectives—we need to listen to each other. Insults, labeling, dismissing, racial “dog whistles”—all those hallmarks of incivility—distract from and derail the kinds of genuine conversation that the First Amendment is intended to foster.

Screaming invective across political or religious divides undermines the purpose of the First Amendment’s Free Speech provisions. Is such speech protected? Absolutely. Is it useful? Not usually.

Who’s Talking?

As long as we’re on the subject of First Amendment Free Speech rights, a federal judge has just handed down a decision that illuminates another aspect of those rights.

As I explained yesterday, our right to free expression is protected against government interference. Usually we think of that interference in terms of censorship, of government shutting us down. But this judge’s decision–which rests on decades of settled law–reminds us of another thing government cannot constitutionally do: it cannot compel our speech, either.

(Reuters) – A federal judge on Friday struck down a 2011 North Carolina law requiring abortion providers to perform an ultrasound and explain it to a woman before having an abortion, arguing it violated the constitutional right to free speech of doctors.

U.S. District Judge Catherine Eagles found that a state does not have “the power to compel a health care provider to speak, in his or her own voice, the state’s ideological message in favor of carrying a pregnancy to term.”

If the right to free speech means anything, it means that we have a right to form our own opinions, based on the widest possible access to information, and to share those opinions with others, or not, as we see fit.

Being forced to recite a script and pretend it represents our own views, like being forced to affirm allegiance to a deity or a nation (see Barnett v. West Virginia Board of Education), isn’t just intellectually dishonest; it violates our most fundamental liberties.

Compelled speech is especially pernicious when it intrudes upon the doctor/patient relationship, which depends to a great extent upon the patient’s ability to rely upon the candor of her provider–to trust that her doctor is acting in her best interests.

The principle extends well beyond medical advice, however. If the government could tell professionals of any sort what to say, if lawmakers could impose “correct” communication on scientists, police officers, media figures… how would Americans ever be able to trust anyone?

How would we know who is really talking?

Kansas Again

I need to reread “What’s the Matter with Kansas.”

University regents in that state have passed a policy giving university presidents authority to discipline employees, up to termination, for “improper use of social media.”

The action–characterized by an AAUP blogger as “a freakout”–came in the wake of an ill-considered tweet by a tenured Journalism professor. David Guth posted the tweet after September shootings killed 13 people in Washington, D.C. It said, “The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”

In a later tweet, he apologized by saying “Some interpreted my tweet differently than it was intended,” Guth wrote. “I don’t want anyone’s children hurt. The fact my words were misconstrued is my fault.” Guth said that he was a professional communicator but hadn’t done a good job of explaining his position.

Conservative legislators threatened to vote against university funding if Guth remained on the faculty. Rather than defending the principle of academic freedom, the President responded by relieving Guth of his classroom duties, and the regents responded by issuing the new social media policy.

 “Social media” was defined as including but not being limited to blogs and social networking sites such as Facebook, LinkedIn, Twitter, Flickr and YouTube. “Improper use” was defined as “indirectly inciting violence or immediate breach of peace; being contrary to the best interests of the university; disclosing without authority any confidential student information, protected health care information, personnel records, personal financial information or confidential research data; or impairing discipline by superiors or harmony among co-workers, having a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impeding the performance of the speaker’s official duties, interfering with the regular operation of the university, or otherwise adversely affecting the university’s ability to efficiently provide services.”

“Contrary to the best interests of the University”? “Impairing harmony?” In whose opinion? Can we spell “vague and overbroad”?

A group of University Distinguished Professors from Kansas State has called for the immediate repeal of the amendment, pointing out that social media have become valued venues for the dissemination of research, and reminding the regents that  “The free and open exchange of ideas is essential to fulfilling the mission of any university.”

Let’s de-construct this sorry episode, shall we?

The whole purpose of a university is to encourage the search for truth. That search requires the broadest possible exploration and exchange of competing ideas–a mission that cannot be achieved if professors can be sanctioned for the expression of unpopular or offensive ideas. The purpose of tenure is not–as too many in and out of the academy seem to think– to provide faculty with job security; it was intended to prevent precisely the sort of retribution for unpopular expression that the Kansas legislature demanded and the University obediently imposed.

Intemperate and ill-conceived expression is the price we pay for protecting freedom of speech and scholarly inquiry from government interference.

We’ve become used to legislative bodies demonstrating a lack of acquaintance with basic American principles, but we might have expected better of the regents.

Of course, it is Kansas…

Even Jerks Have Rights

A couple of days ago, the Indianapolis Star ran a story about a group of very odd bedfellows who are urging the Indiana Supreme Court to accept and reverse a case that presents significant First Amendment issues. I was one of those “bedfellows,” and I will admit that I would never have imagined teaming up with Phyllis Schafly’s Eagle Forum, or the “First Amendment” organization run by Jim Bopp! (I have more in common with other members of the group: Jim Brown, former Dean of IUPUI’s Journalism School, the Indianapolis Star itself, the Hoosier State Press Association, and a variety of other organizations.)

The case that gave rise to this challenge was a divorce and custody battle. The Judge awarded custody of the children to the wife, and the husband was furious. He vented his displeasure in a series of blog posts that were–well, just let’s say they were not complimentary. Among other things, the husband compared the decision to award custody to the mother to child abuse.

From what I can tell from the record, the guy is missing a few screws, and is fairly unpleasant to boot.

Being unpleasant, however, is not equivalent to waiving one’s right to free speech. In this case, the lower courts ruled that the husband’s online rants had violated an Indiana statute prohibiting intimidation. That Statute defines intimidation as a threat or threats that have the purpose of making their target behave in a certain way (for example, the man who tells his girlfriend that he will break her arms and legs if she leaves him). The Indiana Court of Appeals decided that the husband’s stated intention to continue publicly criticizing the Judge amounted to such a threat.

If that interpretation stands, the statute would criminalize common, constitutionally protected forms of speech. The purported “threat” was along the lines of “If you don’t reverse your decision, I’ll continue to badmouth you.” As Eugene Volokh, the constitutional scholar and law professor who is representing our group, puts it in his brief, this sort of “threat” is indistinguishable from the following:

(1)  a columnist’s writing, “Legislator A’s vote on issue B is ridiculous, and I intend to ridicule him until his constituents view him with contempt.”

(2)  an advocacy group’s picketing a store with signs saying, “The store owner’s decision to stock product C is disgraceful, and we hope our speech will expose the owner to disgrace and ostracism.”

(3)  a politician’s saying, “The incumbent’s decision D is so foolish that, once I tell the voters about it, he will be the laughingstock of the state.”

The truth is, the right to free speech is often exercised by people who have nothing of value to say. It is often a shield for vulgarity and stupidity. It protects people who use words to attack and diminish others. But so long as the weapon of choice is language–so long as there is no threat of non-verbal harm–the speech is protected against reprisals from government. As numerous courts have reminded litigants, the antidote to bad speech isn’t government suppression; it is more and better speech.

As tempting as it is to use the government to shut down annoying jerks, it’s well to remember that a government with that power can also silence the rest of us.

Free Speech Means Free

Monday night, a student in my Law and Public Affairs class asked a question I get every so often. We were talking about free speech, and she wanted to know whether the right to say one’s piece extended to speech that “offended” people. It was pretty clear that she expected some variation of “well, no, there are limits.”

As I explained to her, among our cherished American rights, one that we don’t have is the right not to be offended. A right to expression that could be trumped by someone’s hurt feelings–or by a government concerned about someone’s hurt feelings–would not be a right at all.

This is the same point President Obama made forcefully in his speech at the UN yesterday. Speaking of the offensive video that sparked riots in the Middle East, he acknowledged that it was offensive–not just to Muslims, but to Americans. But he defended America’s approach to liberty, and denounced the notion that violence could ever be an appropriate response to even offensive or “blasphemous” speech.

The President also made a couple of points less often noted, but worth considering: In our globally-integrated, increasingly connected world, people without a tradition of free speech had better get used to hearing things they don’t like, because even authoritarian governments can no longer control expression. As technology improves, what little control they have will further diminish.

And a world where people respond irrationally and violently to speech that offends them is a world controlled by the worst elements of humanity, a world that has handed over to the haters the power to foment uprisings and debase civilizations. Such reactions to “offensive” speech are precisely what the speakers are trying to provoke–and by obliging them, those who disagree have given them power they could not otherwise attain.

In the U.S. and other countries with a tradition of free speech, we have learned that the most effective weapon against speech that offends us is to ignore it.