Tag Archives: speech

Speech Versus Action

A recent report on an upcoming Supreme Court case from the New Republic made me think–definitely not for the first time–about the widespread misconceptions around the First Amendment.

Most of the people who read this blog are aware of many of those misconceptions. Probably the most annoying is the most basic–it constantly amazes me (okay, irritates the heck out of me) how many Americans don’t know that the First Amendment, like the rest of the  Bill of Rights, protects only against government action.

I still remember a call I got when I was with Indiana’s ACLU; the caller had applied for a position with White Castle, and had been told that his extensive tattoos were incompatible with their customer service standards. He demanded we sue White Castle for infringing his Free Speech rights. I had to explain that–had the City Council passed an ordinance against tattoos, that would have violated his First Amendment rights, but White Castle is private–and has its own First Amendment right to determine the manner of its own communication.

The case described in the linked article isn’t that clear-cut. It  involves an often-contested “gray area.”

The Supreme Court will hear Counterman v. Colorado in April to decide whether prosecutors must prove that a defendant meant to threaten someone with harm, or if they can opt for the lower threshold of whether a reasonable person might interpret a defendant’s actions or statements as a threat. Where the high court ultimately comes down on this distinction could be consequential in an age when it’s easier than ever for Americans to threaten not just each other, but also election workers, FBI agents, members of Congress, and even Supreme Court justices. How far does the First Amendment go to protect them?

In my classes, I took a rather unorthodox approach to this question, and a number of similar issues. While you won’t find my distinction in legal treatises, it seemed to help students understand the purpose–and limits– of the Free Speech clause. The fundamental distinction I drew was between speech (defined as communication of a message) and action.

The distinction doesn’t rely on whether there was verbal communication.

If I tell you that this cubic zirconium ring I’m selling is really a diamond, and charge you accordingly, I have engaged in fraud–a behavior. The First Amendment won’t protect me.

If I text and telephone you every hour and call you names, that’s harassment–a behavior. The First Amendment won’t protect me.

If I burn an American flag, I am sending a message (we know it’s a message, because  most Americans understand it and find it offensive). That message is protected by the First Amendment.

The problem for law enforcement arises when it is unclear whether we’re dealing with behavior–a genuine threat–or the expression of an opinion. (As lawyers like to say, it’s a “fact-sensitive” inquiry.) Social media trolling has vastly complicated this determination.

At the heart of this case is a campaign of harassment that seems all too familiar. The plaintiff, Billy Counterman, used multiple Facebook accounts to send hostile messages to an unidentified local musician in Colorado. Among the numerous messages that Counterman sent her were ones that read, especially in the context of the years-long barrage, as threats. “Fuck off permanently,” Counterman said in one of the messages. “You’re not being good for human relations,” read another. “Die. Don’t need you.” The target, who never responded to him and blocked him multiple times, ultimately contacted Colorado police, who charged Counterman for violating the state’s anti-stalking statutes.

Colorado law defines the offense to describe anyone who “repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.” Notably, under the rulings of Colorado courts, prosecutors aren’t required to prove that the defendant intended to threaten a person. They instead must only show that a reasonable person would have taken the statements as threats, which is a much easier threshold to clear at trial.

In the lower courts, the troll was handed a sentence of four years under the state’s anti-stalking statute.

This is one of those “hard cases” that –as the saying goes– sometimes make bad law. Four years seems pretty excessive for being an online asshole; on the other hand, such trolling far too frequently becomes a “heckler’s veto”-defined as behavior that allows  people who disagrees with a speaker’s message to shut that message down.

It remains to be seen how the Court will treat online harassment, but it sure seems like it falls on the “behavior” side of my explanatory line…..



The Stakes

I’ve always liked Joe Biden, but the descriptive words that come to mind when I think of him are words like “decency” and “competence.” He’s an essentially understated man; unlike with Obama, the word “eloquence” is not the first word that comes to mind in connection with him.

His speech this week on democracy, however, was nothing if not eloquent– and heartfelt. It was also an accurate and important reminder of where we are right now in this experiment we call America.

I’m linking to the transcript of that speech, and begging you to click through read it. Completely.


In Praise of George W. Bush (No Kidding)

Where was this guy while Dick Cheney was running the country?

Granted, George W. Bush has been looking a lot better during the disaster that is Donald Trump…but I’m still dumbfounded (and awed) by his speech last week at the Bush Institute’s Spirit of Liberty event in New York.

A few quotations:

“Bigotry seems emboldened. Our politics seems more vulnerable to conspiracy theories and outright fabrication.”

 “Bigotry in any form is blasphemy against the American creed and it means the very identity of our nation depends on the passing of civic ideals to the next generation. We need a renewed emphasis on civic learning in schools.”
“And our young people need positive role models. Bullying and prejudice in our public life sets a national tone, provides permission for cruelty and bigotry, and compromises the moral education of children.”

“The only way to pass along civic values is to first live up to them.”

“We’ve seen our discourse degraded by casual cruelty. At times, it can seem like the forces pulling us apart are stronger than the forces binding us together. Argument turns too easily into animosity. Disagreement escalates into dehumanization.”

“Too often we judge other groups by their worst examples while judging ourselves by our best intentions, forgetting the image of God we should see in each other. We’ve seen nationalism distorted into nativism, [and] forgotten the dynamism that immigration has always brought to America.”

In a further reproach to Trump–whose name he never uttered and who has dismissed the evidence–Bush also underscored the conclusion of all the American intelligence agencies about Russian interference in last year’s elections, calling it real and labelling it “subversion.”

Credit where credit is due: during his presidency, Bush never came across as a bigot, although he often failed to push back against his party’s use of bigotry and especially homophobia to win elections.

It is obviously easier for politicians who are not facing another election to call out Trumpism, as we’ve seen with John McCain and Bob Corker. But it is also easier to refrain from publicly defying a sitting President of one’s own party, easier to avoid setting an example that cannot help but shame the current leadership of that party. Easier to keep your head down and enjoy the accolades that come from being an “elder statesman.”

Bush’s broadside is so important because it is his party (or more accurately, what his party has become). Trump ran as a Republican. The House and Senate are controlled by Republicans. Admonitions from Democrats–even previous Presidents–will be dismissed by the party’s base as partisan carping.

As welcome as this speech was, the fact that Bush delivered it is an ominous sign of how worried responsible people are. Those who understand government, who recognize the challenges facing the country and the incredible damage being done to America’s democracy at home and our stature abroad, are speaking up, and we need to recognize how  unprecedented that is.

Differences of opinion on policies would never prompt this behavior. Only a deep foreboding–a sense of existential crisis–can explain this departure from Presidential behavioral norms.

When George W. Bush feels it necessary to warn the country against Trump and Trumpism, we’re in trouble. Bigly.

Who’s Talking?

Among the decisions handed down by the Supreme Court at the conclusion of this term was a little-noted one addressing the question whether states that sell specialty license plates can refuse to issue plates with controversial images like the Confederate flag. The ruling itself is less consequential (at least, in my view) that the opportunity if affords for a much-needed lesson in Constitutional analysis.

The First Amendment prohibits government from censoring the speech of its citizens. In the case before the Court, the Sons of Confederate Veterans claimed that Texas’ refusal to issue plates bearing a Confederate flag constituted such censorship.  But the Court could not analyze that claim until it decided what lawyers call a “preliminary” question: who is speaking through that state-issued license plate–the driver or the state?

Justice Steven Breyer, writing for the court’s majority, said that Texas’ program “constitutes government speech” and that the state was “entitled to refuse to issue plates featuring SCV’s proposed design.” Just as the state could not force drivers to espouse a particular message, he said, drivers could not force a state to espouse theirs.

I think the Court got this one right. But it’s amazing how many people don’t understand the importance of determining who’s talking for First Amendment purposes.

Several years ago, plaintiffs sued Indiana’s General Assembly over legislative prayers claimed to violate the Establishment Clause. (The Courts have long allowed what we might term “de minimus” legislative prayers, so long as they are  brief and inclusive; many scholars–including this one–disagree with that admitted exception to the Establishment Clause, but it is what it is.) In Indiana, the prayers had gotten much longer and much more specifically Christian–one pastor, invited to the Speaker’s podium, had led the room in a rousing rendition of “Take a little walk with Jesus.” The District Court ruled that the practice violated the Establishment Clause and must stop, and all hell broke loose, with protestors complaining that religion had been censored.

It hadn’t.

I got several calls from local media, with breathless questions about a group of aggrieved pastors praying together at the back of the chamber–wasn’t that a violation of the Court’s order?

No, it wasn’t.

When a clergyman is invited to pray from the Speaker’s podium, as an official part of the legislative session, that prayer becomes state speech. The Establishment Clause prohibits government from endorsing or sponsoring religion. When individuals gather to pray, the Free Exercise Clause protects them against government interference.

Who is talking, who is praying, who is making the decision–makes all the difference.

The Bill of Rights only restrains government. That makes it pretty important to identify when government has acted.




Tod Gitlin Sums It Up

I was going to post about Obama’s speech this morning, but Tod Gitlin has already said it, and said it best.

He sounded like a winner. Like all great preachers, he started methodically and built to crescendos. The Republican responder, Charles Boustany of Louisiana, sounded like a whiner, crying, Deficit, deficit, and government-run, government-run, and built toward nothing. Obama charged the Republicans with specific lies. He made the obligatory gestures toward bipartisanship, including the unexpected shout-out to John McCain, who had campaigned in favor of mandatory catastrophic insurance–and I don’t want to be cynical about those gestures, even though I think he’s naive about the other party’s intentions–but that’s not where his stresses fell. He was reminding the majority who voted for him why they did that. He was reminding independents that the reason why no progress has been made toward universality, mandates, and affordabiity is Republicans–as with 1935’s Social Security and 1965’s Medicare laws. He was reminding them, as well as the few rational Republicans left, that the insurance companies are not the glories of American value.

He did not sound like a patsy. He offered specific programs but the peroration was clear: he stood for values and national character. If he went too easy on the insurance companies for my taste–his audience could have used the information that Americans pay insurance companies twice as much as they pay doctors–he took a proper jab at Republicans (they know who they are) who make up the party of fear. You can say that he’s still not willing to talk to Americans straight about the need to limit high-tech medicine for the very old and very frail. Presidents won’t do that.

But he bet on the strength of the American character. It was his finest public moment since the Inaugural. I’m betting national decency wins.