Tag Archives: Free Speech

Even Jerks Have Rights

A couple of days ago, the Indianapolis Star ran a story about a group of very odd bedfellows who are urging the Indiana Supreme Court to accept and reverse a case that presents significant First Amendment issues. I was one of those “bedfellows,” and I will admit that I would never have imagined teaming up with Phyllis Schafly’s Eagle Forum, or the “First Amendment” organization run by Jim Bopp! (I have more in common with other members of the group: Jim Brown, former Dean of IUPUI’s Journalism School, the Indianapolis Star itself, the Hoosier State Press Association, and a variety of other organizations.)

The case that gave rise to this challenge was a divorce and custody battle. The Judge awarded custody of the children to the wife, and the husband was furious. He vented his displeasure in a series of blog posts that were–well, just let’s say they were not complimentary. Among other things, the husband compared the decision to award custody to the mother to child abuse.

From what I can tell from the record, the guy is missing a few screws, and is fairly unpleasant to boot.

Being unpleasant, however, is not equivalent to waiving one’s right to free speech. In this case, the lower courts ruled that the husband’s online rants had violated an Indiana statute prohibiting intimidation. That Statute defines intimidation as a threat or threats that have the purpose of making their target behave in a certain way (for example, the man who tells his girlfriend that he will break her arms and legs if she leaves him). The Indiana Court of Appeals decided that the husband’s stated intention to continue publicly criticizing the Judge amounted to such a threat.

If that interpretation stands, the statute would criminalize common, constitutionally protected forms of speech. The purported “threat” was along the lines of “If you don’t reverse your decision, I’ll continue to badmouth you.” As Eugene Volokh, the constitutional scholar and law professor who is representing our group, puts it in his brief, this sort of “threat” is indistinguishable from the following:

(1)  a columnist’s writing, “Legislator A’s vote on issue B is ridiculous, and I intend to ridicule him until his constituents view him with contempt.”

(2)  an advocacy group’s picketing a store with signs saying, “The store owner’s decision to stock product C is disgraceful, and we hope our speech will expose the owner to disgrace and ostracism.”

(3)  a politician’s saying, “The incumbent’s decision D is so foolish that, once I tell the voters about it, he will be the laughingstock of the state.”

The truth is, the right to free speech is often exercised by people who have nothing of value to say. It is often a shield for vulgarity and stupidity. It protects people who use words to attack and diminish others. But so long as the weapon of choice is language–so long as there is no threat of non-verbal harm–the speech is protected against reprisals from government. As numerous courts have reminded litigants, the antidote to bad speech isn’t government suppression; it is more and better speech.

As tempting as it is to use the government to shut down annoying jerks, it’s well to remember that a government with that power can also silence the rest of us.

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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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True, But…..

Over at Masson’s blog, Doug addresses the misunderstandings that underlie the outsized reactions of Islamic fundamentalists to “provocations” like the amateurish film (or trailer–no one is yet certain an actual film was ever made) that set off the latest round of murderous rage:

Part of the problem seems to be, culturally, a lack of understanding and appreciation for our First Amendment. The Middle East is full of places where government can and does suppress speech it deems troublesome. When the U.S. doesn’t suppress something here, it probably looks to them like an endorsement on some level. In addition, our exposure to so much garbage because of the First Amendment gives us a sort of strengthened immune system we take for granted.

True on both counts.

But folks in the Middle East aren’t the only people who confuse a failure to censor with endorsement of the message. I spent six years as Executive Director of Indiana’s ACLU, and I can attest to the fact that far too many Americans share that confusion. I wish I had a dollar for every time the ACLU was accused of being for pornography because we defended someone’s right to choose his own reading material, or the times we were accused of being “the criminal’s lobby” because we were insisting on someone’s right to due process, or the many, many times we were accused of being “godless” and against religion because we were defending someone’s right not to be coerced into some government-imposed religious observance.

It’s understandable that people in other countries don’t understand the most basic feature of the American approach to individual rights–our right to make our own decisions about what to read, watch and believe, free of government involvement. It’s less understandable, less forgivable, that so many Americans don’t get it either.

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What Constitutes “Speech”?

This morning’s news included a report on a Virginia lawsuit brought by sheriff’s deputies alleging retaliatory firing in violation of their free speech rights. They claimed they’d been dismissed for supporting the Sheriff’s (unsuccessful) opponent in a recent election.

The law is pretty clear that public employees do not lose their First Amendment rights simply because they work for government. So long as they exercise those rights on their own time, and avoid behaviors that would compromise the terms of their employment, they cannot be punished for expressing political opinions or otherwise engaging in expressive conduct.

Here, the “conduct” was clicking the “like” button on the opponent’s Facebook page. The question before the court was whether “liking” something on Facebook amounted to Free Speech. The Judge said it didn’t, since no actual words were typed.

The Judge was wrong.

The courts have consistently held that the Free Speech clause of the First Amendment protects the expression of an idea. Marching in a parade, saluting–or burning–a flag, and yes, clicking the “like” button on Facebook, all express agreement and endorsement, and are protected expression. The only reason people want to prevent Nazis from marching is that they get the message, loud and clear. Same with flag burning; the message of disdain for our country is what offends us.

Some messages don’t require words.

The Sheriff obviously thought that “liking” his opponent’s page sent a message. And he evidently understood it.

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Those Hits Keep Coming….

Ummn…how much longer must we endure this “short” legislative session?

And why are Indiana lawmakers so spooked by gay people?

This week alone, we’ve heard how the Girl Scouts are “really” in the business of producing commie feminist lesbians. Yesterday (while even  Brian Bosma was roaming the Statehouse halls passing out Girl Scout cookies and trying to distance himself from that particular bit of crazy), the Roads and Transportation Committee acted to save Indiana motorists from the calamities that would undoubtedly follow should the Bureau of Motor Vehicles allow the Indiana Youth Group to–gasp!–have a specialty license plate. (IYG supports gay youth. Oh, the shame…)

Now, in all fairness, the issuance of specialty license plates has proliferated, and there undoubtedly need to be some standards and controls. But everyone present understood the real target of the measure that would disqualify groups that “advocate for violation of federal or state law, violation of generally accepted ethical standards or societal behavioral standards or fund individual political candidates.” Furthermore, our moral stewards–er, legislators–will henceforth decide whether groups violate those rules. Can’t leave such pressing issues to the bureaucrats at the BMV.

In an effort to cloak the new rule with a veneer of impartiality, the measure requires–as a condition of approval–a burdensome amount of financial information from the petitioning nonprofits, 500 signatures of Indiana residents, and evidence of a “statewide public benefit from the use of the money the group would receive from the sale of license plates.” And each plate would have to be sponsored by a lawmaker and individually approved.

Because our elected officials don’t have anything more important to do than ensure the moral purity and “public benefit” of messages on Indiana’s license plates.

As this morning’s Star noted, “The changes come in the wake of controversy over the granting of a license plate to the Indiana Youth Group, which supports gay youths. That issue, though, was never discussed Wednesday by the House Roads and Transportation Committee.”

In order to prevent the predictable calamity that would occur if license plates bearing the legend “Indiana Youth Group” were allowed to roam freely over Indiana highways, the committee eliminated plates for the Indiana Association of Chiefs of Police, IU Health, Indiana Soccer, the Zoo, the Marine Foundation and Ducks Unlimited. (Just as well. You can’t ever tell what those ducks might be up to…)

Bottom line to all this foolishness–the legislature wants to pick and choose which organizations’ messages the state will “endorse” by allowing them to sell specialty license plates. The Free Speech clause of that pesky First Amendment says that is exactly what government cannot do. It’s called “content neutrality”–meaning that government can’t allow some messages and disallow others.

If the legislature doesn’t want let IYG operate under the same rules as everybody else, there’s no need for this sort of elaborate kabuki theater.

Just get rid of the whole damn specialty license plate program.

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