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.


  1. I just read a Facebook post from Americans Against The Tea Party that is a prime example of what Sheila is referring to.

    Eric Rush, an occasional Fox News guest and commentor at WorldNetDaily stated; “Obama ordered the CIA to steal Maylasia Airlines flight 370 because he hates America”. He is allowed to make this statement because he is protected under the 1st Amendment right of freedom of speech. How many nutcases, like those who followed the Westboro Baptist Church nutcases, will believe this statement and pass it along? Thinking, intelligent people world-wide who seek truth by researching information have no protection from these people. There is an old Russian adage; “Do not stir shit with stick, it will cause stink.” Eric Rush and that other Rush keep stirring shit with their sticks which riles the uninformed to action; they pass along these lies and are more likely to rush to the polls to maintain the bought and paid for status quo politically. We can post limitless proof against statements such as these but until we follow up our words with action, we are on the losing side of this battle between Civility and Free Speech.

  2. It’s unfortunately that your campaign for more civility, an excellent cause, has been subverted by those who have used it as a basis to restrict speech…which of course is not the point you were making. Anymore I hear “civility” discussed within the context of the legal profession, I cringe because that’s become a code word for restricting free speech.

    “Civility” has become a “cause celebre” among supreme courts. It’s become a way that attorneys can be disciplined for criticizing judges or even other attorneys. Unfortunately Indiana has been a leader in this movement. Indiana is actually the birthplace of the theory that attorney speech critical of judges has no constitutional protection as the purpose of attorney discipline for such speech is to protect the public and not the judge being criticized. The case that came up with this unique case is In Re Terry (1979) when an Indiana lawyer, a former judge who had been removed from the bench, began accusing an Indiana Supreme Court justice of being involved in a coverup. To get around the First Amendment, they came up with the theory that the First Amendment didn’t apply due to the nature of a disciplinary action and the importance of the interest – protecting the public. Other state supreme court began adopting this theory to get around the constitution in order to discipline attorneys critical of their fellow judges.

  3. We have struggled with “Free Speech” in the past. I remember coming across a political cartoon depicting then President Lincoln as scare crow. There is another cartoon I recall at the time LBJ was ramping up the War in Vietnam. The cartoon had a caricature of LBJ’s head as a turret on a tank, with his nose elongated as the tank’s gun. Tom Tomorrow had a cartoon of President Bill Clinton slithering across the Oval Office looking for his spine.

    Each person can come to conclusions based upon actual happenings. Obama was weak in Libya, Syria or fill in the blank and thus Putin could take the Crimea or so the NEO-CONs see it.

    I could disagree with a William Buckley but I respected his debate style. Fast forward and the attack on Sandra Fluke by Rush Limbaugh was vicious in the extreme. David Frum, was a special assistant to President George W. Bush from 2001 to 2002. He commented about Limbaugh’s attack on Sandra Fluke – ” I can’t recall anything as brutal, ugly and deliberate ever being said by such a prominent person and so emphatically repeated. This was not a case of a bad “word choice.” It was a brutally sexualized accusation, against a specific person, prolonged over three days.”

    So how do we civilize “Free Speech?” Perhaps we cannot. We can listen to the extremophiles and refute their statements. I do not see a counter attack on a Limbaugh for his comments on Sandra Fluke will convince his listeners he is wrong, however at least we can provide a counter balance.

  4. Were it not for ‘Zero-Sum World’ and Sheila’s list of recent commenters, I would be out of the loop altogether. Zero-Sum is the last I received, but I can see that life and blogs and comments have continued. That’s great! I am checking the little box below…again.

    I have missed Sheila’s blogs on Civic Vandalism, Civility and Free Speech, and An Ethics Question.

    But, I digress…We have our own problems with civility and free speech in Tennessee. Read on.

    In West Tennessee, we have an odd turn on civic matters this week. Former state senator John Ford was released from prison after serving his term for a video-taped bribery incident called Tennessee Waltz. Not surprising at all to see that he is still in denial about the whole thing. He calls it a set-up.

    Just as John Ford is being released from prison, Judge Joe Brown (yes, that Judge Joe Brown, whose TV show was canceled) has decided to run for DA against DA Amy Wyrick. In going before the court (separate matter) in Memphis, TN, yesterday involving a child-support issue, he got ugly with a magistrate, insulted the ‘magistrate’ status of the magistrate, and wound up with five days in jail for threatening to ‘close this place down’. He bonded out.

    Perhaps Judge Joe Brown could occupy the same cell that John Ford recently vacated. Lack of civility is certainly not limited to Indiana.

  5. PS: Apologies to Shelby County TN DA Amy Weirich for misspelling her name in my earlier post! It’s W-e-i-r-i-c-h.

  6. I agree with Paul K. Ogden 100%. “Civility” lately is a euphemism for speech restrictions, especially for attorneys criticizing judges. After all, what is and is not civil, what is and is not “labeling”, or “insulting”, is a subjective judgment call. Everybody has their own understanding of what civility should be. For example, people who are criticized most likely perceive any criticism as labeling or insult. If such people have power, they will, and do, squash any exchange of critical ideas under the guise of establishing civility of discourse. Thus, the 1st Amendment will be “civilized” into non-existence.

  7. The lack of civility is another product of an education system that is ignoring critical thinking as an important life skill.

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