The Free Speech Cycle*

The Free Speech Cycle

The First Amendment to the U.S. Constitution (together with the Fourteenth Amendment) provides that neither Congress nor the States can pass a law that abridges Americans’ right to speak freely. It therefore guarantees a broad – and thoroughly American – freedom of speech and freedom from government interference in “speech.” Unfortunately, the Constitution doesn’t prevent individuals from trying to restricting other individuals’ free speech.

In interpreting the Constitution, the Supreme Court has parsed freedom of speech into three categories: The first criminalizes speech that can cause physical harm, which the government can restrict and has restricted. The second creates civil liability for speech that can cause economic or emotional damage – this allows those who are malevolently targeted to be compensated. And the third category is any other form of speech …, all of which is protected speech. The question, of course, is precisely where to draw the lines.

Criminal speech includes “advocacy of the use of force … directed to inciting or producing imminent lawless action [and] likely to incite or produce such action.” What that means turns on what the Courts in any given case regard as a “clear and present danger.” The classic example is falsely shouting “fire” in a crowded theater and causing a panic. Doing so creates a “clear and present danger” – precisely the kind of speech that is not protected by the First Amendment. Utterances that don’t rise to that level of danger do not require government intervention or rule-making. The consequence is that the government has no stake in, and Free Speech has been extended to, a broad range of “speaking” that allows Americans to loudly express virtually any opinion. This including “speech” that legislatures at various times have attempted to limit. The First Amendment safeguards the freedom-of-opinion to make campaign contributions – neither Congress nor the States can limit the amount any person can donate to a political campaign or party –, the use of expletives to make a point – an individual can say “F__k the draft” or “F__k” any issue or person without creating “imminent lawless action” –, and a person can publicly burn the flag of the United States to express his opinion because “government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.” Try doing that in Russia or China or India or Poland or Turkey … or almost anywhere else in the world. In the Village of Skokie case involving the American Nazi Party, the Supreme Court held that the First Amendment protects individuals’ rights to express their views no matter how extreme or repugnant those views are. In that case, marchers through a Jewish neighborhood prominently displayed swastikas and shouted anti-Semitic expletives.

While the First Amendment doesn’t protect but rather allows criminality to attach to speech likely to cause imminent physical harm, it also doesn’t protect statements that are false and wrongful but not “criminal.” That means that the British Common Law concept of defamation is not displaced by the First Amendment. Individuals who cause economic or emotional injury to others therefore cannot use the First Amendment as a shield. Wrongful statements that constitute libel or slander continue to provide victims with the right to sue for damages as long as (1) actionable words are used, (2) those words are false, (3) the words are uttered to a third party either verbally or in writing, (4) those words are not uttered by a government official in an official capacity, and (5) the utterance was motivated by malice. If the words are uttered by a government official, they are actionable only if there is clear and convincing evidence that they were uttered with knowledge that they were false or if they were uttered with reckless disregard to whether they were false.

The First Amendment provides an essential base from which a free society can thrive through the unrestricted flow of information and ideas. For more than a century, America has fostered just such a flow of information and ideas through its high-quality, universal, world-beating educational system. Freedom to speak and express divergent philosophies is the foundational purpose of a successful educational system … as well as being a cherished American right. And yet social media are filled with outrage about controversial speakers being prevented from speaking or, when they do speak, their voices being drowned out by protesters from either or both the left and right. Blame for such effective censorship sometimes is attributed to one extremist group or another, but it is social media that bears responsibility. It has given a platform – as well as superficial social validity – to every point of view, no matter how extreme or repugnant. That includes providing a podium for attacks on the First Amendment … in all possible instances. Mainstream media has stirred the pot by publicizing the most outrageous of those censorship events – after all, doing so attracts an audience. Although social media gives voice to the most extreme points of view, extremists actually comprise the smallest of minorities. That minority, however, has a disproportionate impact on perception …, and perception has an enormous impact on reality. While there is no doubt that anti-Free Speech attacks occur, as would be expected in any open society, acts of censorship in America are rare. According to a 2017 survey by a conglomerate of diverse educational charities, 61{29ea29b64b10057f61377b2c087cd5b7537a0cd24da4295a308b0bf589469f35} of students agree that the climate on their campuses prevents some students from expressing their views – a regrettably high percentage –, with 69{29ea29b64b10057f61377b2c087cd5b7537a0cd24da4295a308b0bf589469f35} believing that political conservatives on campus are able to freely and openly express their views and 92{29ea29b64b10057f61377b2c087cd5b7537a0cd24da4295a308b0bf589469f35} believing that other campus groups are able to do so …, a striking similarity to views expressed online (cause and effect … or effect and cause?), as well as being a sad commentary on Americans’ Free Speech concerns beliefs. However, a 2016 survey found that while 78{29ea29b64b10057f61377b2c087cd5b7537a0cd24da4295a308b0bf589469f35} of college students indicated that they favor an open learning environment …, only 66{29ea29b64b10057f61377b2c087cd5b7537a0cd24da4295a308b0bf589469f35} of their elders favor uninhibited discourse, both regrettably low percentages. The problem therefore isn’t limited – or even predominant – on college campuses. It’s a 21st Century societal issue. There are more than 4,500 institutions of higher learning in the U.S. …, and yet only 11 speakers of all political stripes were disinvited from addressing college audiences in 2018. (A clear picture can be garnered by visiting the FIRE website – FIRE is a watchdog group that focuses on civil liberties in academia. The Google search would be “FIRE disinvite.”) Focusing on isolated events on college campuses misses the point … and the problem.

Better questions are whether Free Speech in the 21st Century indeed is being squeezed and whether the steps being taken on and off campuses are worthwhile or even productive.

Protest is an American right. Censorship deprives Americans – Americans on every side of every issue – of that right. And yet censorship of opinions once was part of First Amendment thinking. Freedom-of-Speech-American-Style has evolved. It was little more than 100 years ago that the Supreme Court upheld the criminal conviction of Socialist Party Presidential candidate Eugene Debs for publicly expressing support for draft resisters. He was sentenced to 10 years in prison … for publicly expressing a minority, pacifist view! For virtually the first 200 years of the American republic, journalists who criticized the most powerful Americans put themselves at risk … and almost always decided not to do so. Libel suits were the weapons of choice. It took the perspective of WWII, McCarthyism and the Cold War for the Supreme Court to establish validate the underlying precepts of the First Amendment, holding in 1964 that libel required that a reporter had to have been motivated by “actual malice” – a journalist must have made knowingly false statements or must have recklessly disregarded the truth in order to be liable. Free speech requires a free media and the free flow of news … and of opinion.

Nevertheless, many Americans believe that, although merely bigoted or offensive speech is a First Amendment right that must be tolerated, the First Amendment should not protect words that cross some yet-to-be-defined the line into targeted harassment or threats, or that create a pervasively hostile environment for vulnerable students or workers. How is such a line to be determined? What is “harassment” and what is a “benign pass”? What constitutes a “threat” and what is “mere sarcasm”? How is modern society to deal with moral outrage?

Actual harassment and actual threats should be treated as what they are: potential civil violations that should be left to the Courts since it is the judges who have been assigned the role of protecting Free Speech. Rallying public support to create an awareness of actual or perceived wrongdoing is Constitutionally-protected, recognizing that society eventually achieves its own balance. But such rallying should not create a groundswell that leads to government intervention, legislation or regulation. Like obscenity, Courts know wrongdoing when they see it. If the American Way is to evolve from a Hobbesian “state of nature” to a Lockean world of benevolent social contract, then the Rule of Law is an essential part of that process. America’s Constitution has worked quite well for 250 years. Students of history understand that the evolution of social contract takes time, that cycles ebb and flow, and that the trend runs from the lower left to the upper right. Social media, as well as mainstream media, today fuel extremism, both in behavior and in responses to that behavior. This stage of the cycle should be recognized for what it is: merely a stage. Ensuring the fundamental right to Free Speech is a necessary component in propelling an upward-slanting cycle. Americans should not lose sight of that fact.

Finally (from a good friend)


*┬® Copyright 2019 by William Natbony. All rights reserved.

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