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Some basic truths and ways to think about ‘free speech’

William Turner, Lecturer in media studies | October 15, 2017

To make sense of this year’s battles over free speech in Berkeley, Charlottesville and elsewhere, it helps to keep in mind four basic First Amendment truths.

First: The First Amendment means what the Supreme Court says it means.

To be precise, it means what at least five justices on the current court say it means. When you exclaim, “That violates our First Amendment rights!” you are simply making a prediction that at least five justices will agree with you. We have decades of Supreme Court precedents to help make our predictions more accurate.

Second: Only the government can violate the First Amendment.

Our Constitution is a series of constraints on government and government alone. (Government includes federal, state and local and their subdivisions, including Cal.) The Constitution does not bind corporations, unions, churches, individuals or private entities.

So when Twitter terminated Milo Yiannopoulos’s account, it infringed his free speech, but it didn’t violate the First Amendment – Twitter is not the government. Same with Google firing an employee because of his email denigrating women’s abilities in tech. Same if the National Football League or one of its teams fires or suspends a player for taking a knee during the National Anthem. Nongovernmental speech restrictions don’t violate the First Amendment.

Third: There is no “hate speech” exception to the First Amendment.

This is a more contentious proposition because so many people think hate speech should be outlawed. But over the decades the Supreme Court has ruled time and again that what many call hate speech is protected by the First Amendment.

Hate speech is not a legally recognized term, and it means different things to different people. In general, people use the term to refer to speech that disparages individuals or groups because of their race, religion, nationality or ethnicity. But the court has consistently held that such speech can’t be punished.

For example, the court decided that a Ku Klux Klan leader could not be convicted for advocating white supremacy and urging that “the nigger should be returned to Africa, the Jew returned to Israel.” In another case, the court decided that a fascist speaker could not be punished for provoking outside protesters to throw rocks through the windows and attacking “atheistic, Communist Jews or Zionist Jews,” leading his audience to yell “dirty kikes!” and “send the Jews back to Russia!”

The court ruled that free speech may “best serve its high purpose when it induces a condition of unrest…or even stirs people to anger.” And of course the federal courts ruled that uniformed Nazis couldn’t be prevented from marching through Skokie, Ill., a mostly Jewish town with many Holocaust survivors.

The current Roberts court has not questioned or retreated from these precedents. Indeed, it has reinforced them, ruling for example, that homophobic and anti-Catholic protesters could not be punished for picketing at a military funeral, displaying signs proclaiming “God Hates Fags” and “Priests Rape Boys.”

It also struck down a California law restricting the sale of extremely violent video games to minors, including games that allowed gamers to indulge in “ethnic cleansing” and “gun down African-Americans, Latinos or Jews.” And this June the court held that a rock band calling itself “the Slants” was entitled to a federal trademark on the name even though the term would be offensive to a large number of Asian-Americans who consider it a racial slur. In short, the court has flatly rejected invitations to treat hate speech, however defined, as a category deprived of First Amendment protection.

Fourth: We are not helpless to deal with speakers whose views we loathe.

It is well established that government, even though it can’t ban speech because of its viewpoint, can impose reasonable “time, place and manner” restrictions on speech. That is, you may have a right to express hateful ideas, but you don’t have a right to express them whenever, wherever and however you choose.

Government (including Cal) can regulate the venue, the schedule and the way in which a speaker can communicate his or her ideas. It must take reasonable measures to ensure the safety of the speaker, the audience and protesters, and this may impose some costs. But it’s better than giving in to a “heckler’s veto” or saying there are some closed questions that no one is allowed to debate.

We the people, and government, can also combat views we despise with counter-speech, condemning hateful ideas, correcting facts, promoting civility, and advocating the truth. As Justice Louis Brandeis said 90 years ago, the remedy for speech we consider dangerous or disturbing “is more speech, not enforced silence.”

Comments to “Some basic truths and ways to think about ‘free speech’

  1. This post brings up a basic question, shall we ever be able to produce and perpetuate an acceptable quality of life as long as we fail to communicate and cooperate?

    The history of the human race has many chapters where we have proven to be incapable of evolving fast enough to protect our democracy at all.

    Socrates championed Truth and Morality and ended up choosing hemlock because he realized it was an exercise in futility.

    Jesus championed the Golden Rule and was crucified for his efforts, and we now have over 1000 christian denominations making it an impossible dream.

    Lincoln championed the United States and we are still arguing whether we can truly overcome seemingly irreconcilable Us/Them dichotomies between red and blue states.

    President Eisenhower highlighted a major failure mode in his 1961 Farewell Address:

    “The prospect of domination of the nation’s scholars by Federal employment, project allocations, and the power of money is ever present – and is gravely to be regarded.”

    To prove this, Linus Pauling championed Peace as a Nobel Peace Prize Laureate but was marginalized by academic colleagues and powers that be because of the dominance of the power of money.

    Robert Reich is a Chancellor’s Professor of Public Policy at Berkeley and one wonders whether even he can successfully promote Equality for All of Us and Them in order to adapt in time:

    https://alumni.berkeley.edu/california-magazine/september-october-2006-global-warning/can-we-adapt-time

    So, currently our democracy has devolved to the point where Robert Reich posted an interview “Is Trump Unraveling?” where “He” concludes: Trump’s not just a moron. He’s a despicable human being. And he’s getting crazier. Paranoid. Unhinged. Everyone knows it. I mean, we’re in shit up to our eyeballs with this guy.

    To compound the seemingly out of control problems of our annus horribilis, the latest IEEE Spectrum magazine published an article “Make the Web Better for Everyone” by Prof. Pascal Zachary of ASU’s School for the Future of Innovation in Society who opened and concluded with:

    “The Web has serious problems: peddler of unreliable information, haven for criminals, spawning ground for irrational conspiracy fears, and tool for destructive people to broadcast their violence in real time and with posted recordings. —-

    I’m ashamed at how some people abuse the Web, which has many virtues worth preserving. I’m certain that, working with the corporations that profit greatly from the Web—and with national governments, which have the power to reduce abuses while still protecting privacy and freedom of ¬expression—we can get closer to the Web experience we all want.”

    So the paramount question is whether we can truly achieve “Some basic truths and ways to think about ‘free speech’” in time to save our democracy and the human race?
    Or is the conclusion by Will and Ariel Durant, after more than 40 years of documenting “The Story of Civilization,” becoming our epitaph:

    “When a civilization declines, it is through no mystic limitation of a corporate life, but through the failure of its political or intellectual leaders to meet the challenges of change.”

  2. As was famously said, “I may not agree with what you say, but I will defend your right to say it.”

    The framers of The Constitution were brilliant – period.

    Cary Michael Cox

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