A recent report from the Czech Republic made me think of Americans’ widespread misunderstandings about what constitutes the freedom of speech protected by the First Amendment.
The most widespread misunderstanding, of course, arises because too many Americans don’t realize that the Bill of Rights only limits actions by government. If Walmart refuses to carry your book, your private-sector boss forbids politicking on the job, or your racist Facebook diatribe causes people to unfriend you after characterizing you in unpleasant ways, those aren’t violations of the First Amendment. Those are examples of people exercising their free speech rights.
But about that Czech incident…
Prague Morning reported on the arrest of Jana Peterková. Peterkova became the first person to be convicted for spreading misinformation in the Czech Republic. According to court documents, she allegedly posted a false message claiming that several seniors died in a nursing home in Měšice after receiving COVID vaccinations.
Now, it is important to note that Peterkova posted a totally manufactured story. She wasn’t sharing an opinion, or weighing in on a disputed factual situation. She recounted a purportedly personal conversation with someone she identified as an employee of the nursing home in question, and she claimed that person had told her that “the ‘mainstream media’ were ‘silent’ after several elderly people died after receiving the Pfizer COVID-19 vaccine.”
However, the identified employee had not worked at the nursing home since May of 2020.
It is also important to acknowledge that the Czech Republic doesn’t have America’s First Amendment, although it has pretty robust protections for free speech. (Wikipedia says “Freedom of speech in the Czech Republic is guaranteed by the Czech Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Czech Constitution. It is the first freedom of the charter’s second division – political rights.”)
One of the conundrums of America’s free speech jurisprudence is locating the line between speech–communication–and action. Government may not be able to censor my speech, but it definitely has the right to prohibit and punish a number of my possible actions.
And just as communication can occur through action–silent marches, ripping up draft cards, and burning a flag are all actions meant to send a message–wrongful or criminal behaviors can be accomplished via the spoken or written word.
If I call your telephone every fifteen minutes to berate you for something, that behavior is not protected by the First Amendment. It isn’t communication; it’s harassment–and government can punish harassment.
If I criticize you by publishing a book with manufactured accusations, I’ve committed libel. Government can prohibit libel and slander.
If I sell you a cubic zirconium for much more than it’s worth by convincing you it’s a diamond, I’m not exercising my right to free speech; I’m guilty of fraud. Government can punish fraud.
The problem in these situations isn’t that they’re protected speech; it’s evidentiary.
If a police officer overhears two people planning to rob a liquor store, he doesn’t need to wait until they’re at the store with weapons drawn to move against them–but he’d better be able to demonstrate to a court of law that he knew they were serious–that what he overheard was part of the illegal activity–that they weren’t just playing a game, or kidding around.
In the case from the Czech Republic, the evidence was evidently unambiguous. The information Peterkova transmitted was false and she clearly knew it was false, since she’d invented it.
Most of the propaganda being spewed in today’s U.S. is protected by the Free Speech Clause of the First Amendment. Opinions–no matter how nutty–are protected, and far too much of what passes for journalism in this country today, even in the most credible outlets, is really the venting of opinions. Even though a number of Faux News pundits and their ilk likely know they are dealing in a manufactured reality, proving to a court that they know they are dealing in falsehoods–at least, in the absence of some inadvertent admission– would be impossible.
Overall, the protection offered by the First Amendment is immensely positive. That said, however, the reality of our time is that “censorship” is no longer accomplished by suppression; today, partisans and culture warriors flood the Information environment with enormous amounts of clickbait and propaganda, intended to “drown out” responsible fact-finding, then use the First Amendment as a shield.
it’s a situation that requires a citizenry able to separate wheat from chaff. Civic and news literacy have never been more important.
Unfortunately, the ideologies that motivate the propaganda in the first place also convince partisans that “truth” is information that confirms their initial biases–and increasingly, that illegal and/or illegitimate action–even insurrection– is protected “free speech.”
Happy Sunday! I will be delivering the following “sermon” (via Zoom) at the Danville Unitarian-Universalist Church this morning.
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Thank you for asking me back! I’m gratified.
As you all know by this time, my academic background is law—and more specifically, Constitutional law and the Bill of Rights.
The Bill of Rights, the approach to individual liberty that animates it, and the jurisprudence interpreting it tell us when government must respect declarations of “my body, my choice.” We’ve been hearing that slogan a lot from the people who are refusing to be vaccinated—and ironically, they’re often the very same people who label themselves “pro life” and vigorously oppose a woman’s right to control her own body.
I’m here to tell you that the anti-vaxxers throwing that slogan around have it exactly backwards.
The Founders who crafted our Constitution and Bill of Rights were influenced by the philosophy of the Enlightenment and by what we call the “libertarian construct”—the belief that we humans have an inborn right to “do our own thing”—to pursue our own interests, form our own beliefs, and make our own life choices and moral judgments, free of government interference– until and unless we are harming the person or property of someone else, and so long as we are willing to grant an equal right to others.
That approach to human rights requires government to refrain from interfering with citizens’ political or religious beliefs, but it also imposes a governmental duty to protect citizens from harm. Philosophers like Hobbes believed that was a major purpose of government—to keep the strong from taking advantage of the weak, to protect citizens from threats both foreign and domestic. We can certainly quibble over the nature and degree of the harms that justify government action, but if government can protect us from drunk drivers and the dangers of passive smoke, then a dangerous and frequently fatal pandemic is clearly a sufficient basis for government rule-making.
A pregnant woman’s decision to terminate her pregnancy, on the other hand, poses no threat of harm to her neighbors.
Despite the rhetoric—the legal issue is not whether abortion is right or wrong, good or bad. The issue is who gets to make that decision, the individuals involved or the government? In our Constitutional system, decisions about the religion you will follow, the books you will read, the political philosophy you’ll embrace, and many others—are all supposed to be left to the individual. What the courts call “intimate” decisions, like those about who you will marry and whether you will procreate, are to be left up to individual citizens, because they are none of government’s business.
I agree with the people who point out that the so-called “pro-life” movement is really pro-birth. Most of the legislators who identify themselves with the pro-life label are clearly unconcerned about women’s lives, or about feeding, housing and educating babies once they are born. But I wasn’t asked to speak to the considerable dishonesties of the anti-choice position; I was asked to focus on what will happen if—as most of us anticipate—the Supreme Court eviscerates or overrules Roe v. Wade.
Before that, however, we need to look at the actual origins of the anti-abortion movement.
Noted religion scholar Randall Balmer has documented those origins. It wasn’t until 1979—a full six years after the Court decided Roe v, Wade—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.”
Objecting to abortion was seen as “more palatable” than what was actually motivating them, which was protection of the segregated schools they had established following the decision in Brown v. Board of Education.
According to Balmer (this is a quote),
Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.
End quote.
Let me emphasize that. It was rightwing anger about civil rights laws that actually motivated the “Right to life” movement. The Rightwing was savvy enough to recognize that organizing grassroots evangelicals to defend racial discrimination wouldn’t cut it—that they would need a different issue if they wanted to mobilize evangelical voters on a large scale.
The bottom line is that what motivated the Christian Right’s political activism, including but not limited to its opposition to abortion, was racism and defense of racial segregation.
Let’s give credit where credit is due: that tactic has been incredibly successful. Christian Nationalists now own one of America’s two political parties—and I say that as someone who worked hard for the Republican Party for 35 years. Mitch McConnell has achieved the GOP’s fever dream of taking over the Supreme Court, and much as it pains me to say this, with the imminent demise of Roe, we are looking at what is probably the first of many times this Court will roll back individual liberties.
So what now?
If Roe is overruled—or more likely, effectively neutered– there will certainly be some horrendous consequences. But there may also be some unanticipated positives.
We have all come up against the intransigence of the “one issue” anti-choice voters, the people who disagree with Republicans about virtually everything else, but vote Republican because they are “pro life.” Without Roe, I think many of them will abandon the GOP.
Losing Roe will also make it much more difficult to energize a national movement against birth control, which is actually a target of the most rabid anti-choice activists—a significant number of whom are men who want women barefoot, pregnant and back in the kitchen. Bottom line: anti-choice voters have been a mainstay of the GOP–and at the federal level, at least, they will arguably be considerably less motivated.
If Roe is no longer the law of the land, the issue will revert to the states, and a number of states will opt to protect reproductive choice. Those of us who care about women’s autonomy will need to do some serious fundraising to make it possible for poor women in Red states to travel to places where abortion is legal, and that’s a pain. But even now, with abortion theoretically legal, there are many places in the U.S. where clinics are few and far between; women have to travel long distances, put up with bogus, medically-inaccurate “counseling,” and deal with other barriers to the exercise of what is currently a constitutional right to terminate a pregnancy.
What the de-nationalization of Roe might do–should do–is redirect liberal and pro-choice energies from national to state-level political action. And while there are no guarantees, that could be a huge game-changer.
The current agenda of the Republican Party doesn’t reflect the desires of the American majority–far from it. GOP numbers have been shrinking steadily; some 24% of voters self-identify as Republican. Their electoral success has been due primarily to the 2011 gerrymander, and that was made possible because they controlled a large number of state governments when redistricting took place. More recent GOP vote suppression tactics that have depressed Democratic turnout and disenfranchised Democratic voters have also been facilitated by state-level control. In many states—possibly even Indiana—redirecting voters’ attention to state-level politics could change that.
Without Roe, it is reasonable to predict that the single-issue anti-choice voters that have been a mainstay of the GOP will be less motivated to vote. Pro-choice voters, however, will be newly energized, and polling suggests they significantly outnumber “pro-life” activists. A recent Pew survey has found that 61% of Americans say abortion should be legal in all or most cases, with 27% saying in all cases and another 34% saying in most cases. Only twelve percent of the public says abortion should be illegal in all cases, and only 26% would outlaw it most cases.
In anticipation of the loss of Roe, some states have already seen efforts to protect reproductive rights. A ballot drive has been launched in Michigan. Reproductive Freedom for All’s petition would affirm the right to make pregnancy-related decisions without interference, including about abortion and other reproductive services such as birth control. The groups leading the effort are Planned Parenthood Advocates of Michigan, the Michigan ACLU and an organization called Michigan Voices.
New Jersey has already enshrined abortion rights in state law. Lawmakers in that state bolstered protections for reproductive rights in anticipation of the upcoming U.S. Supreme Court decision, and Gov. Phil Murphy has signed a bill codifying abortion rights into state law. He also signed a second bill that expands insurance coverage for birth control.
Meanwhile, in states like Florida and South Dakota, lawmakers are rushing to impose new restrictions on abortion, anticipating the Court’s acquiescence with much more restrictive rules.
Knowing our Hoosier legislators, I anticipate some pretty dreadful legislation being introduced here. It will require organization and activism in Indiana to derail what the ridiculous pro-gun, anti-vaccine legislators who call themselves “pro life” will try to do.
Indiana will need an enormous uprising—of women, of men who support women, and especially of liberal churches—if we are going to escape replicating the Handmaid’s Tale here in Hoosierland.
I still remember when I first recognized the extent and reality of racism. I was in middle school, and I thought, well, when enough people have intermarried to make the whole world more or less the same color, that would take care of the problem.
At that age, I was blissfully ignorant of the tribalism that would make mankind unlikely to reach that simple “solution”–or the likelihood that if we were all the same skin color, we’d find other ways to distinguish between “us” (the good guys) and “them” (the suspect “others.”)
What made me recall the naïveté of my long-ago “insight” was a really fascinating essay in the Hedgehog Review, titled “My Identity Problem.” In it, Alan Shapiro–a poet and professor of English– muses about his lifelong experience of “belonging, yet standing apart.” Shapiro focused on the relationship between his Jewish-ness and his American-ness, and explained how that experience affects his approach to contemporary arguments about cultural appropriation: is a given example an exercise in empathy, or an unjustified (and inevitably inauthentic) intrusion into someone else’s culture?
That led him to a consideration of the way group identities serve us, and then to a really wonderful anecdote from one of his classes that–at least for me–illustrated the impossibility of avoiding “appropriations.”
A student of Japanese and Latino descent in one of my classes pushed back strongly when I advanced that line of reasoning: “That’s different,” he said. “Black and brown people can write from a white perspective because they aren’t part of the white power structure. When you do it, it’s cultural appropriation. We should just focus on our own culture, and not raid someone else’s. It just isn’t kosher.”
I thought at first that he was joking, using the word kosher. But no one laughed, and he wasn’t smiling. I said, “That’s an interesting word, kosher. A hundred years ago it was a word only Jews used, and only among each other. Now it’s so mainstream it’s hardly even a Jewish word.” I wanted to ask the student what he meant exactly by “white power structure,” but frankly, on this occasion (as on others), I was afraid to give offense.
Still, I continue to wonder: By “white power structure,” do people mean redlining and other unfair lending practices, police brutality, or biased hiring? Does it also include the cars we drive, the latest devices we avidly consume, the huge chunks of time devoted to social media, selling ourselves and our enviable lives to thousands of “friends” we’ve never met? Is anybody pure? Is any culture? Even while we’re all caught up in various systems of power, and despite the rigid monolithic metaphor—white power structure—the systems that make up our social life are neither fixed nor fated, but are constantly in flux, emerging and dissolving unpredictably.
And though it may seem like a small thing, I was deeply touched and heartened by how “naturally” a word like kosher had been assimilated from “my” culture into the American speech of a gay man whose father was Japanese and mother Latina. What better evidence of both the assimilationist metaphor of the melting pot and the identity-driven metaphor of a tossed salad. The exchange with my student seemed proof to me of just how impossible it is to privatize culture, how culture is not a thing or a piece of property you can build a wall around. Never unalloyed, it exists and flourishes through promiscuous intermingling.
As Shapiro writes at a later point in the essay, our group identities are an inescapable part of who we are–but only a part.
In an America where most of us identify as members of many “groups,” (what sociologists and political scientists call “cross-cutting” identities), being a member of any particular one–even a particular marginalized population–doesn’t determine how we think or act. We all take different parts of ourselves from the various communities to which we all belong–a reality that prevents us from being wholly defined by any specific one of them.
That reality is ultimately why bigotry–racism, Anti-Semitism, etc.– is so stupid.
At its core, bigotry is the belief that group identity trumps individuality and behavior—the belief that people who share a skin color or religion or sexual orientation all share essential characteristics that distinguish “them” from “us.” It is a worldview that refuses to see people as people—as individuals who deserve to be approached and evaluated as individuals.
I have a question I’ve been pondering for years. Perhaps one of the people who read this blog can answer it–or at least shed some much-needed light on it.
Here’s the thing: I am constantly coming across news items about technological progress that is incredibly impressive, innovations that promise to solve real problems faced by real humans. Here’s just one recent example: an effort to bring electricity to almost half of Africa’s 1.3 billion population, which currently lives without it, and not by replicating the way most electricity is generated and transmitted in countries whose populations are almost universally served today.
As the article reports,
The results of fossil-fuel-based, centralized, power-plant strategies of the past 50 years speak for themselves: high levels of pollution and slow rollouts due to high construction and fuel costs. Instead, we need to focus on minigrid-based electricity powered by solar power and batteries, which can provide 24-hour clean energy. And because they are decentralized—with the electricity that each community needs provided by solar farms in the area (optimized through artificial intelligence and Internet of Things technologies) and without long, expensive transmission lines—minigrids are often low-cost and deployable in weeks. Already, Energicity has brought solar-powered electricity to 40,000 people, and our goal for 2022 is to reach 250,000 more, across four countries in West Africa.
You can read more detail at the link.
Reading about new methods of providing clean energy, or new ways to communicate, or new ways to pay for goods and services (many of which are also new) is hardly a unique experience. I see similar reports on an almost daily basis, and they make me applaud the ingenuity and scientific “know-how” of so many of my fellow humans. We’ve come a long way from inventing the ax by attaching a stone to a wooden handle!
Good for us! We’re resourceful creatures!
So why–why–are we unable to apply that ingenuity and intellectual rigor to the mechanisms of communal life–to systems of government?
I don’t hear our retrograde politicians criticizing the folks who invented the iPhone, or developed the Internet. Even our insane anti-vaxxers aren’t pontificating against the discovery of penicillan. They aren’t refusing to board airplanes (at least, not pre-pandemic). They have computers. They drive cars outfitted with the newest features, and use GPS to get from point A to point B. They talk to Siri and Alexa. I could go on and on.
And they use these things without the dimmest idea of how they work, or “what is in them.”
Our relationship with technology is evidence of respect for talent and expertise. You don’t see the men and women who are creating these new tools boasting that they don’t really know much about whatever their factories produce; recruiters aren’t out looking for employees who have absolutely no prior experience with, or training relevant to whatever widget the factory is producing. The managers of those factories don’t level their most withering critiques at workers who actually know what they are doing.
Only in political life do people consider ignorance of government and the policy process a virtue. Only in political life do we award our support to people who are clearly clueless about the imperatives and mechanics of governance–at least, if we think we’d like to have a beer with them.
Only in political life do ideologues encourage their own followers to reject the products of expertise–most recently, to risk dying rather than take advantage of the knowledge of others if that rejection is thought to advantage the know-nothings who aspire to elective office.
Bottom line: For every genuine innovation in governing, like the “doughnut economy” that is a subject of experimentation in Amsterdam and a few other places, there are literally thousands of innovations in technology. We humans are really good at invention, at subduing our environments, making daily life easier and more interesting. Not only that, most of us applaud those innovations; we consider them evidence of progress.
Why don’t we approach our governing systems that way?
Believe it or not, despite their sometimes dense arguments and arcane vocabularies, academic papers can be fascinating.
A couple of months ago, at lunch with a former colleague, he referred to a paper that sounded intriguing, and I asked him to send me a link. Given the number of books and papers I tend to amass, I just got to it–and my initial impression was confirmed.
The lead author is Paul K. Piff, a Professor at the University of California at Irvine, and the title of the paper is “Having less, giving more: The influence of social class on prosocial behavior.”
The authors began by sketching out fairly widespread assumptions about folks who occupy a lower social class, which they define in terms of socionomic status. In other words, poor people. They note that poor people have access to fewer resources, face greater exposure to threat, and experience a reduced sense of personal control, and they observe that, given these life circumstances, many people expect lower class individuals to “engage in less prosocial behavior, prioritizing self-interest over the welfare of others.”
The authors’ researched a related, but different, hypothesis. They investigated whether poorer individuals might “orient to the welfare of others as a means to adapt to their more hostile environments” and they examined evidence to determine whether such an orientation exists and if so, whether it gives rise to greater prosocial behavior. (In the excerpt below, I’ve removed the copious citations.)
Across 4 studies, lower class individuals proved to be more generous (Study 1), charitable (Study 2), trusting (Study 3), and helpful (Study 4) compared with their upper class counterparts. Mediator and moderator data showed that lower class individuals acted in a more prosocial fashion because of a greater commitment to egalitarian values and feelings of compassion.
The degree to which those who enjoy abundant resources should
act altruistically toward others is a contentious issue within moral
frameworks and political philosophies.
In the present research, we examine how social class influences
prosocial behavior. Relative to their upper class counterparts,
lower class individuals have fewer economic resources; fewer educational opportunities; less access to social institutions such as
elite schools, universities, and social clubs;
and subordinate rank in society relative to others.
Moreover, people with lower class backgrounds often face increased stress in their close relationships and violence in their homes. In the face of these life circumstances, lower class individuals might be expected to be more focused on their own welfare, prioritizing their own needs over the needs of others.
An emerging body of research points to an alternative hypoth-
esis: Despite experiencing life stressors on a more chronic basis,
lower class individuals appear to be more engaged with the needs
of others. Relative to their upper class counterparts, lower class
individuals are more dependent on others to achieve their desired
life outcomes, more cognizant of others in their social environ-
ment, and more likely to display other-oriented nonverbal behaviors.
The article proceeds to outline the four studies referenced, and to test their hypothesis by measuring the effect of social class on “core aspects of the construct”– objective
indicators of material resources (i.e., income): and subjective perceptions of social class .
In both correlational and experimental designs, using university, community, and nationwide samples that represented a range of social class backgrounds, controlling for plausible alternative explanations (e.g., reli-
giosity, ethnicity), we explored the effects of social class on
generosity (Study 1), charitable donations (Study 2), trust (Study
3), and helping behavior.
There’s a lengthy explanation of the methodologies employed in each of these studies, and discussions of the findings and implications at the link. But the bottom line was clear: The evidence strongly suggested that social class does shape what the authors call “people’s prosocial tendencies” and that “having less leads to giving more.”
So much for noblesse oblige and the stereotype of the generous rich. Turns out poor folks really aren’t Romney’s “takers”…
Most of the national debate over income inequality and the enormous gap between the financially fortunate and everyone else focuses on the extensive privileges enjoyed by the wealthy, including the immensely greater influence that monied folks exert on policy–in contrast to the multiple barriers faced by people whose incomes are barely adequate (or inadequate) to cover life’s necessities.
This paper–and the numerous studies cited by its authors–suggests another reason to be concerned about our present levels of inequality. If we want a kinder, gentler, more compassionate society, populated by citizens who behave in a pro-social manner, pursuing policies that further enrich the already wealthy is definitely not the way to go.
