Category Archives: Free Speech

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.

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A Step in the Right Direction

The Supreme Court’s decision in Citizens United should have been a wake-up call for those of us who have been concerned over the growing power of corporate America. Corporations have their place–by shielding entrepreneurs from personal liability, they encourage risk-taking and innovation; I have no problem with the corporate form as a useful business mechanism. (Although I do find it ironic that the growth in corporate hegemony tends to be applauded by people who talk a lot about the need for poor people to exercise “personal responsibility.” Corporations were invented to allow people to escape personal responsibility.)

The problem isn’t with the existence of corporate entities, the problem is with confusing these artificial constructs with human beings, and awarding them rights. There’s a reason we call our individual liberties “human rights.” When the Supreme Court essentially ruled that corporations and labor unions could give unlimited amounts to political candidates and causes, and justified that ruling as “free speech,” most observers–certainly this one–considered the decision both ill-considered and extremely dangerous. When the Senate refused to pass a measure requiring disclosure of such contributions, the floodgates seemed permanently open. We are going to see unprecedented sums spent by the 1% to influence the 2012 elections, and distort the electoral process.

The influence of money on our government has been well documented, and the picture isn’t pretty, but I was heartened to see President Obama taking at least a small step toward limiting the wholesale purchase of policy.

It has been reported that the President is drafting an executive order that would require companies pursuing federal contracts to disclose political contributions that have been secret under the Citizen’s United ruling. Despite howls from the usual suspects, this is a modest “good government” measure that does not violate anyone’s free speech rights. If a company wants to do business with government, and receive payment from our tax dollars, we the people have a right to know whether that business has been contributing to lawmakers and/or government officials who will influence those contracting decisions.

It’s not enough–we need to reign in the increasingly common use of obscene amounts of corporate money to gain political advantage. But it’s a start.

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Policy and Polarization

Numbers cruncher Nate Silver took a look at the recent New York Times poll of people who consider themselves supporters of the Tea Party movement, and noted that media habits were the most salient predictor of such support.

According to Silver, “Tea-partiers are disproportionately attached to, and perhaps influenced by, FOX News. And they are particularly enamored of Glenn Beck. Nationally, just 18 percent of people have a favorable opinion of Beck (the majority have no opinion whatsoever about him). But most tea-partiers do… 59 percent of those who do think highly of Beck consider themselves a part of the tea-party. This is, in fact, the single biggest differentiator of any of the items that the NYT asked about: not ideology, not any particular political belief, but whom they watch on television.”

It isn’t just Fox. Increasingly, the television programming you watch, the newspapers, magazines and blogs you read, and the other media you access have become predictors of the reality you inhabit.

Over the past eight years, I have team-taught a course with James Brown, Associate Dean of IUPUI’s Journalism School. The course is titled “Media and Public Affairs” and it enrolls both journalism and policy students. Its purpose is to explore the mutual dependence of the media and government.  When we first taught the course, it was a relatively straightforward exploration of the history of American journalism and freedom of the press: today, we aren’t even sure what “the media” is. And that’s a problem, not just for the classroom, but for the country.

In a large and diverse democracy, the ability of citizens to make informed decisions about public policy is critically dependent upon the quality, objectivity and completeness of the information available to them. We are seeing dramatic changes in the ways in which Americans access that information. At a time when the relationship between government and media has become increasingly important, that relationship has become increasingly problematic.

The media’s role in American policymaking involves two supremely important functions, that of “watchdog” and that of information provider. The watchdog function is intended to keep public administrators honest; the information function allows the public to make reasoned judgments, not just about their government’s actions and decisions, but about the all-important context within which those actions are taken and decisions made.

Governments depend upon a properly functioning media in order to make sound policy; citizens require a properly functioning media to ensure that their own policy judgments are informed.

The ideal of journalism is objectivity, difficult as that often is to achieve. Every journalist cannot be Walter Cronkite, but we cannot function as citizens without genuinely impartial and trustworthy sources of information. When we substitute commentators for reporters, when supposedly reputable news sources act like stenographers—giving us “balance” (i.e. “he said, she said”) without fact-checking who’s telling the truth—we end up in a black and white world where we can choose the “facts” we prefer to believe.

And then we wonder why everyone is so angry.

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Homophobia at Purdue

The local media recently reported on a controversy at Purdue, where a professor had posted anti-gay opinions on his private website. Not long afterward, I had a call from a student who was curious about my opinion of the situation. She knew me as a strong proponent of equal rights, so she wanted to know what I thought about Purdue’s decision to do nothing about this expression of anti-gay animus.

As I told her, Purdue was exactly right.

The posting was not to an official Purdue site; there was no likelihood that the sentiments would be attributed to the University. It was a private opinion, expressed by someone with whom I strongly disagree. Purdue is a government entity; the whole point of the First Amendment’s Free Speech clause is to prohibit government from censoring or punishing people who say unpopular or disagreeable things.

To put it more bluntly, even jerks have First Amendment rights.

 I spent six years as the Executive Director of the Indiana ACLU battling similar efforts to make the government control what others can read, hear or download. During that time, I attended a public meeting in Valparaiso, Indiana, where an angry proponent of an ordinance to “clean up” local video stores called me “a whore.” I was accused of abetting racism for upholding the right of the KKK to demonstrate at the Statehouse. I was criticized for failure to care about children when we objected to a proposal restricting minors’ access to library materials. In each of these cases, and dozens of others, the people who wanted to suppress materials generally had the best of motives: they wanted to protect others from ideas they believed to be dangerous. To them, I appeared oblivious to the clear potential for evil. At best, they considered me a naïve First Amendment “purist;” at worst, a moral degenerate.

Most of us, I hope, cringe when someone uses a racial or religious insult, or otherwise denigrates people based upon their race, religion or sexual orientation. But in a free society, the appropriate response is education, not suppression. It is more and better speech—not censorship.

Well-intentioned as some of these efforts may be, what they signal is a profound lack of respect for the rights of others to hold wrong opinions, or opinions contrary to our own.

When we are faced with expression that offends us—that is uncivil or unfair or hateful—we have an unfortunate tendency to confuse a defense of the speaker’s right to free speech with an endorsement of the contents of that speech. So an argument that government cannot—and should not—ban offensive videos, or the Klan’s despicable rhetoric, or hate speech directed at marginalized groups, is seen as an endorsement of the pornography or racism or other hateful sentiments.  It isn’t. 

America’s founders understood that ideas have consequences. They also understood a profound truth: giving government the power to decide what ideas are acceptable is much more dangerous than even the most dangerous idea.

Protecting the Idea We Hate

I hate to beat up on the United Nations. I’m one of those “can’t we all get along” people who would just like to hold hands (metaphorically speaking) with people everywhere while singing kumbaya.  Plus, our increasingly interrelated world desperately needs an effective international body. The problem is, the U.N. keeps demonstrating that it isn’t up to the job.

Most Americans know that the Constitution’s First Amendment protects free speech—“free speech” being shorthand for the right to access information, form our own opinions and express those opinions verbally or symbolically. Fewer of us know that the Universal Declaration of Human Rights—passed by the United Nations sixty years ago—also protected freedom of opinion and expression.

Passage of the Universal Declaration, toothless as it admittedly was and is, was a high point in the history of the United Nations. The Universal Declaration might be merely aspirational, but it identified basic rights that all nations agreed were the due of all human persons. Since its passage, however, the U.N. has periodically passed resolutions or taken other actions that demonstrate how few of its members understand what “freedom of opinion and expression” means.

Recently, it happened again. By a vote of 21 to 10, the U.N. Human Rights Council endorsed a document prepared by the Organization of the Islamic Conference, calling for members to pass laws prohibiting the expression of “racist and xenophobic” ideas and “religious defamation.” The document expressed “deep concern” over the  identification of Islam with terrorism, a concern prompted by the Danish cartoons, among other provocations. Saudi Arabia was a strong proponent of the measure; a Saudi delegate told the council that “no culture should incite religious hatred by attacking sacred teachings.”

(I must have missed the news that the Saudis are closing down their notoriously anti-Western, anti-Jewish madrassas. As one blogger put it, “I’ll take lectures about freedom from the Saudis right after I take lessons in logic from Bill O’Reilly.)

The problem with this resolution, of course, goes well beyond the hypocrisy of the nations that proposed it. It mirrors a similar debate that Americans have been having, between self-appointed guardians of civility and people who express unpopular or hateful opinions. Most of us, I suspect, cringe when someone uses a racial or religious insult, or otherwise denigrates people based upon their race, religion or gender. But in a free society, the appropriate response is education, not suppression. It is more and better speech—not censorship.

Well-intentioned as some of these efforts to avoid hurt feelings may be, what they signal is a profound lack of respect for the rights of others to hold wrong opinions, or opinions contrary to our own. Even if we could agree upon what constitutes “defamation”—is it disagreement? Lack of proper reverence? Adherence to a different point of view?—protection of dissent and disagreement is essential to the search for truth.    

A government empowered to decide what ideas are acceptable is much more dangerous than even the most despicable idea.