Tag Archives: Free Speech

Someone Needs to Explain Free Speech to Micah Clark

Recently, a State Trooper was sued for proselytizing a woman he’d stopped for speeding. The Indianapolis Star has the story.

Not surprisingly, our homegrown theocrats saw nothing wrong with this.

Micah Clark, executive director of the American Family Association of Indiana, said that although the traffic stop might not have been the best time to quiz someone about faith, he questioned whether a police officer should lose his right to free speech because he is wearing a badge.

“I have people pass out religious material all the time. Mormons come to my door all the time, and it doesn’t offend me,” Clark said. “(This case) might not be the most persuasive time to talk to someone about their faith, but I don’t think that a police officer is prohibited from doing something like that.”

Let’s try this slowly, so that even folks like Micah can understand: when people are acting in their individual capacities, they have free speech (and free exercise) rights. When they are acting on behalf of government–when they are what lawyers call “state actors”–the Establishment Clause of the First Amendment prohibits them from using their governmental authority to impose their religious beliefs on others.

That’s why a sectarian prayer from the Speaker’s Podium at the Statehouse violates the Establishment Clause, but a group of legislators voluntarily praying in the back of the chamber or on a street corner is protected by both the Free Exercise and Free Speech clauses of that same Amendment.

When you are acting as a private citizen, you can pray or proselytize to your heart’s content.

When you are acting as a representative of the government of all the people, you can’t.

It isn’t rocket science.

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Read My Lips: No Heckler’s Veto

I sure wish those Faux News pundits who claim to revere the Constitution actually knew what was in it.

Evidently, Satanists in Oklahoma City are planning to hold a “black mass.” Whatever that is. Now, insofar as we can tell, these folks have been entirely peaceful–however much their views may offend  adherents of more traditional doctrines, the only “harm” they’ve inflicted has been to religious sensibilities.

Enter know-nothing Tucker Carlson.

Tucker Carlson opined that the Satanic leader “clearly just wants publicity.” He asked if “Christians are playing into his plan” by protesting. In response to whether Christian should ignore him, Fr. Morris said that everybody needs to do what they think is best, such as talking about it on Fox. He encouraged prayer for the Satanic leader’s soul. When Clayton Morris interjected that the city is standing on free speech, Fr. Morris asked “what about if I want to desecrate a Koran…and speak pro-Nazi stuff right in front of my church and get people all fired up on a public sidewalk.”  (The Satanic mass is not being held on the street). Despite his (and Fox’s) belief about limited government, he opined that “government has to step in and say you can’t incite violence in the name of free speech.” The chyron validated his point: “First Amendment Foul, City: Constitution Protects Right to Gather.”

This approach–oh, no, we can’t let [fill in the blank] speak, because what they have to say will anger people and spark civil unrest. We have to shut them down in order to preserve the public peace!–was the argument used across the American south to shut down people like Martin Luther King. It’s called the Heckler’s Veto, because it allows “hecklers”–people who disagree with what is being said–to veto the message.

The courts have consistently ruled that they can’t do that. The message from the bench has been clear: If the authorities are genuinely worried about breaches of the peace, they need to beef up security, not shut the speaker down.

Isn’t it interesting how many pompous frauds want the protections offered by the Bill of Rights for themselves–but don’t want those same rules applied to others?

I have news for Tucker Carlson: It’s only freedom when it applies to everyone. Even people you don’t like. If the government gets to pick and choose who gets to assert a right, it’s no longer a right. It’s a privilege.

And privileges can be revoked.
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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.

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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?

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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…

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