Free Speech – Page 13 – Sheila Kennedy

Free Speech Conundrums

A friend of mine–a very thoughtful observer of American life and culture–asked for my opinion of the ACLU’s reported decision not to represent Charlottesville protestors alleging violation of their free speech rights if the “speakers” were armed at the time.

I haven’t seen a detailed statement to that effect, but based upon what I know, I agree with it.

When I teach the free speech clause, I tell students it requires distinguishing between speech—defined as the transmission of an idea—and action. The government cannot prohibit or punish the articulation of a message; it can, however, justifiably prohibit or punish harmful actions.

It isn’t always easy to draw the line, to identify when a message or idea becomes something else.

I illustrate the dilemma by giving students a number of “scenarios” requiring that they decide whether something was speech or intimidation, speech or fraud, speech or harassment, speech or the first step in commission of a crime ( the RICO arguments).

Assume that a 6’4″ muscular body builder tells a hundred pound 5’1″ woman “If you don’t let me [fill in the blank], I’ll beat you so badly you’ll be unrecognizable.” Assume, also, that he does nothing more–doesn’t lunge toward her, or otherwise make menacing moves–has he simply exercised his constitutionally-protected freedom of speech? Or is he guilty of threat and intimidation?

What’s the difference between a labor union picketing a store by marching on the sidewalk with placards, and anti-choice activists coming into a residential neighborhood with bullhorns and screaming from 2:00 a.m. to 7:00 a.m night after night in front of the home of the Director of Planned Parenthood? (True story.)

Can we draw a distinction between the speaker who says “I think we need to overthrow the government, and this is why,” and the one who tells a group of angry citizens “I’ve got the rifles outside in my truck! Everyone who’s with me come and get one and we’ll march on City Hall right now!”

As they used to say on Sesame Street, one of these things is not like the other. And by and large, the courts have understood the differences.

So I agree with the ACLU’s decision. (I am surprised; it seemingly breaks a long tradition of ACLU First Amendment absolutism.) In the real world, racist speech by an armed and confrontational White Supremacist crosses the line from protected expression to criminal intimidation.

Permit me to offer an (admittedly imperfect) analogy: the ACLU supported the Supreme Court’s decision in Citizens United. I tend to be a free speech purist, and in the abstract, I agreed with the reasoning. But in the real world, that decision gives the rich and powerful permission to corrupt the political process and drown out the speech of others. I agree with former Indiana Supreme Court Justice Ted Boehm, who once told me that the original legal error, in his opinion, was Buckley v. Valeo’s equation of money with speech. I also agree with former Representative Lee Hamilton, who has said that the Supreme Court doesn’t need more Justices who graduated from Harvard Law; it needs more Justices who’ve run for County Sheriff.

The First Amendment protects the exchange of ideas, no matter how pernicious or hurtful or offensive. However, it does not protect actions that government can properly forbid, merely because those actions are accompanied by–or accomplished through–the spoken word.

It isn’t always easy to tell the difference, and we may not all agree on where the line should be drawn, but we have to draw it.

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Sticks and Stones…

Remember the old child’s chant: sticks and stones may break my bones, but words will never hurt me?

It’s more complicated than that.

We have a legal system that distinguishes between acts and words, that protects expression of even the most hateful sentiments while forbidding people from acting on those sentiments.

There are all kinds of reasons–practical and theoretical–for prohibiting government censorship of even the most vile speech. I have addressed many of them previously. (If you want another exposition of those reasons, you could do worse than John Stuart Mill.) The Founders of this country certainly recognized that speech can be dangerous, but they believed–correctly, in my view–that giving government the power to decide which ideas could be expressed is a far greater danger.

Recognizing the difference in the degrees of harm inflicted by hurtful words and violent or otherwise harmful acts does not require us to ignore the very real–and deleterious–consequences of words. But we also need to understand that the only effective remedy is culture, not law.

Refusing to use bigoted terminology is not “political correctness.” It is recognition that decent adults do not contribute to the coarsening of society, and do not participate in the creation of a culture that winks at bad behavior.

Language shapes culture in ways too numerous to count. The nature of discourse considered appropriate for a civil society shapes the attitudes of the young and influences the behaviors of adults. Widespread use of language that diminishes people based upon their sexuality or religion or country of origin creates a belief that discrimination against those people is justified, and in the case of unbalanced folks (of whom there seem to be many), is seen as a license to harm them.

Do people have a right to express reprehensible opinions? Of course. I am one of those free speech purists who, like Voltaire, may “disagree with what you say but defend to the death your right to say it.” But the fact that people have a right to be hateful is not the same thing as an endorsement of their venom, and it does not require us to ignore or fail to condemn the unfortunate effects of such speech on American society.

The law cannot require us to grow up. That doesn’t mean we should behave like spoiled children– and it certainly doesn’t mean electing people who don’t understand the very real and very important difference between “political correctness” and adult behavior.

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It’s Not Just Planned Parenthood….

Planned Parenthood. San Bernardino.

America averages one mass shooting every day. We seem unable to address the paralysis on guns that allows any crank, psychopath or terrorist to acquire instruments of death and destruction, so we discuss every other issue involved, from policing to mental health systems. In the wake of the attack on Planned Parenthood, we’ve focused upon the effects of vitriol, propaganda and reckless accusations.

So let’s “go there.” Does rhetoric really matter?

When we were children, most of us chanted that “sticks and stones may break my bones, but words will never hurt me!” Even in childhood, we knew that wasn’t true; the wounds that leave the most long-lasting scars are frequently caused by insulting or hurtful words. Not infrequently, bodies heal faster than psyches.

There are obvious consequences to toxic and uncivil discourse: when we substitute epithets for reasoned argument, we neither convince nor converse in any meaningful sense. The question we need to confront–the issue that people like Carly Fiorina and Donald Trump dismiss as “liberal bias”–is whether a constant drumbeat of nastiness, prevarication and incitement leads less-than-stable folks to “act out.”

The recent attack on Planned Parenthood is the latest in a string of assaults on that agency that have been encouraged, if not caused, by incessant dishonest and inflammatory rhetoric. A recent attack on a Muslim taxicab driver is another horrifying example.

The passenger began asking the driver about his background, and whether he was a ‘Pakistani guy.’” He also asked the driver “about the terror group ISIS” and mocked the prophet Muhammad.

The driver, who moved to Pittsburgh from Morocco five years ago, told the Post-Gazette that he is three months away from becoming a U.S. citizen. His plan is to bring his wife to the United States and start a family in the country he considers home.

I’m a free speech purist. Both the Constitution and common sense tell me that reducing the level of public bile is not something we can achieve by passing a law.

As difficult as it is, we need to challenge the culture that encourages expressions of bigotry and hate. We need to remind people that it is possible to express a point of view without becoming part of the problem; that it is possible to disagree without lying, slandering or justifying horrific behaviors.

In a more reasonable culture, we might even be able to do something about our ridiculously easy access to guns….

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The Age of Propaganda?

The Program on International Policy Attitudes is a respected source for international opinion research. In the wake of the 2010 U.S. elections, it conducted a survey of voters, first looking to see those voters’ perceptions of how much misinformation was “out there,” and second, to determine just how misinformed voters actually were.

Unsurprisingly,

The poll found strong evidence that voters were substantially misinformed on many of the key issues of the campaign. Such misinformation was correlated with how people voted and their exposure to various news sources.

The website links to the questionnaire and the results, which are well worth reading, but here are some of the most consequential inaccuracies:

Though the Congressional Budget Office (CBO) concluded that the stimulus legislation has saved or created 2.0-5.2 million jobs, only 8% of voters thought most economists who had studied it concluded that the stimulus legislation had created or saved several million jobs. Most (68%) believed that economists estimate that it only created or saved a few jobs and 20% even believed that it resulted in job losses.
Though the CBO concluded that the health reform law would reduce the budget deficit, 53% of voters thought most economists have concluded that health reform will increase the deficit.
Though the Department of Commerce says that the US economy began to recover from recession in the third quarter of 2009 and has continued to grow since then, only 44% of voters thought the economy is starting to recover, while 55% thought the economy is still getting worse.
Though the National Academy of Sciences has concluded that climate change is occurring, 45% of voters thought most scientists think climate change is not occurring (12%) or that scientists are evenly divided (33%).

Incredibly, 86% of respondents thought taxes had gone up since 2009, although they’d actually gone down. Such is the power of propaganda.

It shouldn’t come as a surprise to note the source of most of this misinformation. While there are certainly no truth-telling heros among cable news sources,

Those who watched Fox News almost daily were significantly more likely than those who never watched it to believe that most economists estimate the stimulus caused job losses (8 points more likely), most economists have estimated the health care law will worsen the deficit (31 points), the economy is getting worse (26 points), most scientists do not agree that climate change is occurring (30 points), the stimulus legislation did not include any tax cuts (14 points), their own income taxes have gone up (14 points), the auto bailout only occurred under Obama (13 points), when TARP came up for a vote most Republicans opposed it (12 points) and that it is not clear that Obama was born in the United States (31 points).

The effect was also not simply a function of partisan bias, as people who voted Democratic and watched Fox News were also more likely to have such misinformation than those who did not watch it–though by a lesser margin than those who voted Republican.

In a country with freedom of speech, the only way to counter propaganda is with credible information, persistent rebuttals of intentional misinformation, and an unflagging effort to make people understand when the emperor is naked.

We all need to participate in that effort–debunking Fox, certainly, but also being sure we aren’t giving a pass to sources that may be telling us what we want to hear.

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Cue the Censors….

Remember the chant from our childhood– “Sticks and stones may break my bones, but words will never hurt me”?

Of course, that has never been true; words can and do deeply wound. But the message of the chant is nonetheless important: just as we realize that politics is “warfare by another name,” and infinitely preferable, since politics at least lets us live to fight another day, discussion and debate and even name-calling are preferable to physical attacks.

Furthermore, the notion that robust speech and debate are an essential element of the search for truth is enshrined in the Free Speech clause of the Constitution’s First Amendment. Freedom not just for ideas with which we agree, but freedom even–perhaps especially– for the idea we hate, as Justice Holmes memorably put it.

And yet, if there is one constant through American history, it is the urge to suppress ideas that offend some person or faction. Pick up any newspaper or visit any news site, and there will be reports on efforts to censor. Two recent examples:

The Kansas State Senate on Wednesday passed S.B. 56, with twenty-six Republican senators supporting the measure, and six Republicans and eight Democrats opposing. The bill is ostensibly designed to protect students by making it illegal to display or present material that is “harmful to minors,” such as pornography.

But the broad categorizations and vague language have caused concern among teachers and free speech advocates about what will and won’t be policed.

Of course, what I think is “harmful to minors” may be rather different from what you think is harmful.

Censorship efforts are often accompanied by pious expressions of concern for children; other times, however, it is very clear that opponents of particular ideas simply want to suppress those ideas.

A Pennsylvania transit system permitted churches to advertise on the sides of its buses but refused to allow a group that doesn’t believe in God to place an ad containing the word “atheists,” fearing it would offend riders, according to a federal lawsuit filed Tuesday.

The County of Lackawanna Transit System repeatedly rejected the ads sought by the Northeastern Pennsylvania Freethought Society, telling the group it doesn’t permit advertising space to be used as a forum for public debate. The transit system also told the group its ad might alienate riders and hurt revenue, according to the lawsuit, filed in Scranton.

The transit system allowed several churches — as well as a political candidate and a blog that linked to anti-Semitic, Holocaust denial and white supremacist websites — to advertise before the Freethought Society first tried placing its ad in 2012, the suit said.

I don’t suppose it occurs to the censors that when you demonstrate fear of an opposing idea, you are simply highlighting the weakness of your own position….

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