By law, under the First Amendment, speech is very
free. Government can only stop us from speaking, or punish us for what we’ve
said, under very limited circumstances.
Sometimes, those limits on free speech are pretty
clear and generally agreed upon. For example, speech that is involved in a
criminal act like extortion or blackmail finds no shelter in the First
Amendment.
We can say confidently that child pornography has no
free-speech protection, though the actual laws surrounding production,
distribution and possession are based not on the repugnant idea of that
material but in the belief that no child can be involved or exposed to such
material without being harmed. But even
here, the rise of “virtual” computer images in such repellent material gives
rise to new questions – at least in the theoretical – of whether current laws
apply since no actual child is involved.
Other areas involving freedom of speech are not so
clear.
As a starting point, it’s important to note that
there are no conditions or modifiers about free speech in the 45 words of the
First Amendment. Nothing about being
nice, polite or sensible and nothing about prohibiting speech that is
insulting, hateful or disgusting.
What the nation’s founders set out in creating the
First Amendment’s protection for free speech, and its companion freedoms of
press, religion, assembly and petition, was a place where people could express
themselves freely and exchange views and information with others on important
issues of the day – the so-called “marketplace of ideas.”
Philosophers and other great historical thinkers had
been pondering that idea for centuries prior to the American Revolution.
English poet John Milton, in Areopagitica in 1644, (1644), posed a meeting place where
“ All the winds of doctrine were let loose to play upon the earth, so Truth be
in the field … Let her and Falsehood
grapple; who ever knew Truth put to the worse in a free and open encounter?”
A plain-spoken explanation of the concept: Everyone may set up a “stand” in this idea market
and hawk our conceptual wares. No one is forced to buy what we’re selling, or
even to listen. But through civil
discourse, we’ll arrive at “truth.”
No fair preventing the “vendors” from being heard.
It’s up to speakers to be convincing if they
want shoppers – our fellow citizens – to agree. And, finally, speakers
live with the consequences of our expression in the marketplace.
Let’s look at some recent examples of how free
speech works – or doesn’t.
Retiring Ohio State president Gordon Gee has been
pummeled for his bad humor last December about Catholics and priests at Notre
Dame. He said June 4 that the incident
was at least a small factor in his decision to retire. But clearly, many saw
his speech – entirely within the law by the way – as a major impediment to Gee
remaining a fully effective leader on campus. No prosecutor charged Gee with
blasphemy after his remarks became public. But amid furious nationwide
criticism, he decided to retire as university president.
President Obama and the First Lady both faced
hecklers recently during public remarks. The President was interrupted
repeatedly during the latter portion of a speech on counter-terrorism.
According to a report by the online magazine Slate, after several
interruptions, Obama got the last word: “The voice of that woman is worth
paying attention to. Obviously, I do not
agree with much of what she said. And obviously she wasn’t listening to me and
much of what I said. But these are tough issues, and the suggestion that we can
gloss over them is wrong.”
Days later, as Michelle Obama was addressing a
Washington, D.C., fundraiser, a woman shouted support for lesbian rights. “One
of the things I don’t do well is this,” the First Lady said, leaving the
lecturn and facing the protester directly – saying the audience could “listen
to me or you can take the mic, but I’m leaving. You all decide. You have one
choice.” The protester was led away and the speech continued.
Shouting down or drowning out speakers is not an
exercise is free speech. No ideas are exchanged when the speech from one party
or group is simply designed to inhibit the speech of another.
Which brings us to a recent public program in
Manchester, Tenn. An angry group continually shouted during remarks by U.S.
Attorney for the Eastern District of Tennessee Bill Killian, who had come to
speak about speech that might cross the line into criminal conduct.
The background to the meeting involved threats and
violence against area Muslims in the past few years. But an incident at hand
provoked intense emotions. A cartoon posted on Facebook by a local public
official showed a squinting man sighting along the top of a double-barrel
shotgun, with a caption that it was “the only way to wink at a Muslim.”
Hateful and juvenile humor? Certainly. Protected –
even if repugnant – speech? Probably.
Grounds for prosecution? Doubtful.
To be fair to U.S Attorney Killian, he duly noted at
the outset: “Let me be clear, in this country, hateful speech is allowed. It is
protected by the freedom of speech part of the First Amendment. But if someone
makes threats of violence, that is not protected speech and they will be
prosecuted. Likewise, if someone commits acts of violence under the guise of
religious or other speech, they will be prosecuted for their violent acts.”
Some in the audience are reported to have yelled
“serpent” and “traitor” – but reporters present said the interruptions grew so
loud and frequent that only portions of his remarks could be heard. The insults
are protected by the First Amendment,. But denying Killian or anyone else the
right to speak and be heard, and tromping on the rights of others to hear him
because you disagree, is just wrong.
Certainly the nation’s founders had brainpower in
mind when protecting freedom of speech – not just lung-power.
About the author: Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran
journalist whose career has included work in newspapers, radio, television and
online.
This article was published by the First Amendment
Center.
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