Defining Free Speech

When I taught about the First Amendment’s Free Speech protections, I would sometimes ask students to differentiate between a person pontificating that “Someone should lead a revolt against the government,” and a person at the head of an angry crowd moving toward a government official and yelling “We’re coming for you.”

The first of those is protected speech–it’s the utterance of an opinion. We might dislike the opinion, we might find it infuriating (much like burning a flag, which is the expression of a similar opinion), but it is an opinion, and protected by the First Amendment. The second, however, is a threat. To the extent that words constitute a credible threat, they are not within the protection of the First Amendment. Granted, it isn’t always easy to tell the difference between an angry exhortation and a genuine threat, but legally, they are different.

A recent article in the New York Times considered the rise of anti-Semitic incidents on the nation’s campuses, and drew that distinction.

Free speech, open debate and heterodox views lie at the core of academic life. They are fundamental to educating future leaders to think and act morally. The reality on some college campuses today is the opposite: open intimidation of Jewish students. Mob harassment must not be confused with free speech.

Fareed Zakaria made much the same point in an essay in The Week.

I have strongly condemned the attacks of Oct. 7. I think that those who praise Hamas in any way are blind to the reality that it has been the principal opponent of a two-state solution to the Israeli-Palestinian question. But the question to grapple with is how to handle views that either side finds deeply offensive. And of course, speech and assembly are not the same as physical intimidation and harassment, which prevent civil discourse…

The basic argument for free speech… is that it is better to hear those you violently disagree with than to ban or silence them. That way, debate happens out in the open and points are matched with counterpoints. The alternative is to drive discourse into the shadows and gutters of political life where it festers, turns into conspiracy theories, and often erupts into violence.

David French –a noted expert on the First Amendment–underlined the point that– just as there are international rules that apply to shooting wars, there are constitutional rules that apply to our nation’s culture wars. As he explained, “applying those rules properly is one way that a continent-size, multi-faith, multicultural society peacefully perseveres through profound division.”

Our civilization is intended to be a rights-based liberal democracy, where people who possess diametrically opposed points of view cannot just survive but also thrive without compromising their most fundamental beliefs — so long as they don’t interfere with the rights of others.

As French reminds his readers, freedom of speech includes freedom to be offensive and provocative–even freedom to advocate violence, but not to “incite or produce” lawless action.

Under this construct, public support for Hamas — or public support for carpet bombing Gaza — is constitutionally protected, even if it’s gross and immoral, and public institutions that suppress such speech violate the First Amendment….

However,

The right to speak does not include a right to silence others. Putting up a poster is an act of protected speech. Tearing down that poster is not, even if the person destroying the poster is trying to make his or her own statement. Tearing down a poster is akin to shouting down a public speaker. Your protest cannot trump the speaker’s own right to free speech. The answer to a poster is another poster, not destroying the expression you hate, by tearing it down or defacing it any way…

The right to speak does not include a right to harass. This last concept is perhaps the most difficult to understand and apply consistently. The right to speak, as I said, absolutely includes a right to offend. The government cannot silence your speech simply because it makes people angry or upset…

This is a strict standard but certainly one that applies to threats and to acts of physical intimidation. If anti-harassment laws mean anything, they mean that students shouldn’t have to fear for their safety from fellow students simply because of their race, color or national origin. 

The prohibition of harassment includes actions prompted by antisemitism and Islamophobia that “detract from the victims’ educational experience.” 

I strongly recommend clicking through and reading French’s essay in its entirety, because it is an excellent primer on the constitutional interpretation and critical importance of  America’s Free Speech doctrine.

Bottom line: In America, people with defensible points of view express them through speech, not through vandalism, intimidation or thuggery. 

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Monsanto

Note: post has been updated to correct spelling of Monsanto. Mea culpa.

A lot–probably a majority–of American companies are good corporate citizens. We don’t hear much about them, because they aren’t newsworthy.

Monsanto, on the other hand, is very newsworthy.

Most media about Monsanto is focused on its herbicide Roundup, which has been shown to cause cancer if people are repeatedly exposed to it. (There have been several recent jury verdicts awarding breathtaking sums to afflicted users.) But Monsanto’s sins go well beyond the manufacture and sale of a dangerous product.

The company is especially vicious in its efforts to silence reporters and food safety activists whose coverage is less than glowing.

A non-profit food safety watchdog on Thursday revealed the lengths the agrochemical company Monsanto has gone to in order to keep the dangers of its products secret—monitoring journalists and attempting to discredit them, identifying a progressive musician and activist as a threat, and crafting a plan to counter the watchdog’s public information requests about the company.

Monsanto’s so-called “fusion center” targeted U.S. Right to Know (USRTK), which investigates safety and transparency issues within the U.S. food system. When USRTK filed Freedom of Information Act (FOIA) requests beginning in 2015 regarding Monsanto’s relationship’s with publicly-funded universities, the multinational corporation assembled a plan to counter the group’s findings, according to newly-released documents.

Journalists and critics of the company applauded USRTK’s release of the documents and said they only bolstered the case, long made by environmental and public health advocates, that Monsanto must be stopped from profiting off dangerous chemicals and covering up their harms.

The nonprofit had made Freedom of Information requests to universities in an effort to confirm accusations that Montsanto had paid for favorable research results. The 30 plus pages of internal documents that were released detailed the company’s plans to counter and discredit the organization.

In another article, a journalist who was targeted by Monsanto explained how the company goes about discrediting those who publish unflattering reports.

As a journalist who has covered corporate America for more than 30 years, very little shocks me about the propaganda tactics companies often deploy. I know the pressure companies can and do bring to bear when trying to effect positive coverage and limit reporting they deem negative about their business practices and products.

But when I recently received close to 50 pages of internal Monsanto communications about the company’s plans to target me and my reputation, I was shocked.

I knew the company did not like the fact that in my 21 years of reporting on the agrochemical industry – mostly for Reuters – I wrote stories that quoted skeptics as well as fans of Monsanto’s genetically engineered seeds. I knew the company didn’t like me reporting about growing unease in the scientific community regarding research that connected Monsanto herbicides to human and environmental health problems. And I knew the company did not welcome the 2017 release of my book, Whitewash – The Story of a Weed Killer, Cancer and the Corruption of Science, which revealed the company’s actions to suppress and manipulate the science surrounding its herbicide business.

Monsanto’s efforts included engineering web placement of negative “information” about her–written by Monsanto– that would pop up at the top of internet searches, production of “third party talking points,” and payments to “readers” who would post negative reviews of her book.

The records were uncovered as part of court-ordered discovery in litigation brought by plaintiffs alleging their cancers were caused by exposure to Roundup. The documents  revealed years of company activities aimed at manipulating the scientific record about Roundup.

Companies like Monsanto not only pose a danger to thousands of people–they create a perception that no business enterprise can be trusted. That perception isn’t just bad for law-abiding enterprises–it’s bad for America’s economic health.

A functioning government  with a functioning Consumer Protection agency would shut Monsanto down.

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Our Salacious Statehouse

This week, the Indianapolis Star and other local news outlets carried a story about Speaker of the House Brian Bosma’s effort to intimidate a woman who admitted to having had a consensual (albeit “pressured”) sexual contact with him when she was a Statehouse intern in 1992.

She was 20 years old at the time; he was 36.

According to the news reports, the woman didn’t come forward of her own volition; she responded to media inquiries. None of the reports I read identified who made those inquiries, or what triggered them after all these years, but after Bosma’s attorney questioned her family,  her friends, a former boyfriend and ex-husband in an effort to gather unflattering information about her, she decided she was willing to answer questions about the decades-old allegation.

Bosma evidently paid his lawyer $40,000 to dig up dirt to discredit the woman. The money came from his campaign account, raising (for me) the question whether those who donated to that account were cool with this particular application of those funds…

Bosma is currently in charge of drafting the General Assembly’s new sexual harassment policy, a task made necessary by public reaction to groping allegations lodged against Indiana’s exceedingly unpleasant, grandstanding Attorney General, Curtis Hill.

That seems….awkward, to say the least.

The Indianapolis Business Journal quoted a former staffer to the effect that the Bosma liaison was the “worst-kept ‘secret’ at the Statehouse.”

Actually, if gossip is to be believed, the “worst kept secret” is how common it is for male lawmakers at Indiana’s Statehouse to try to “pressure” female interns and staffers, and that it has gone on for years. When the Curtis Hill story broke, a number of the politically-connected women I know wondered aloud whether there would be a genuine investigation of those charges, and if so, whether that investigation might finally lead to an airing of other complaints, and a change in several lawmakers’ testosterone-fueled behaviors.

Randy male legislators may be an old story, but Bosma’s reported effort to intimidate and discredit the woman admitting to the encounter– his willingness to pay $40,000 for “dirt”  he could use to smear someone he had pressured into a sexual act–is pretty despicable.

Republicans in the Indiana House have closed ranks around Bosma, who is thus far denying everything. The Governor (also a Republican) has declined to authorize an investigation, and Bosma’s district is so red it would take a blue tsunami to vote him out. So maddening as it is, he will probably “suffer” some embarrassment, at most–and proceed to craft the Statehouse’s sexual harassment policy.

If the #metoo movement has done nothing else, it has opened a lot of eyes–including mine–to the prevalence of sexual harassment. Too many women–including me–have thought for years that these “incidents” that happened to us were relatively rare, and probably our own fault; we were “open” or “approachable” in ways that invited boorish (or worse) behaviors. We coulda/shoulda resisted “pressure” from men in positions of authority who held power over us.

It may be time for #metoo to become #I’mmadashellandI’mnottakingitanymore.

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