Tag Archives: Free Speech

Reviving Civility

A few nights ago, I participated in a panel discussion devoted to the revival of civility, as part of the annual Spirit and Place Festival sponsored by IUPUI. The evening began with a soliloquy of sorts on the subject by former Congressman/Statesman Lee Hamilton, then segued to the panel. I’m not sure any of us had especially useful recommendations for how we might inject mutual respect into political conversations, or ensure that those discussions are based upon verifiable fact, but we tried.

Since I have no idea how Americans of good will might revive civility, or rescue it from the Trumpian depths of Twitter and media comments sections, I took a somewhat different approach to the subject, which I am sharing, below.

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When I was asked to participate in this panel, my mind went back twenty years. I was then the Executive Director of Indiana’s ACLU, and I had mounted a major campaign to promote civility and encourage more civil discourse about hot-button civil liberties issues. Several members objected. They let me know that they were upset–that they thought such an effort was inappropriate because they were convinced that an emphasis on civility somehow undermined, or was evidence of less than robust support for, Free Speech.

That misunderstanding is evidently shared by the Neo-Nazis who marched in Charlottesville, the creators of racist, homophobic and anti-Semitic websites, and participants in proliferating Facebook confrontations and Twitter wars. They defend their vitriol as “Free Speech;” and disparage and dismiss civility as “political correctness.”

They couldn’t be more wrong.

This nation’s Founders understood that all ideas, no matter how noxious, should be available for discussion. They didn’t protect speech because they underestimated the danger bad ideas could pose; they knew how powerful –and damaging–ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—what sort of speech should be permitted– was far more dangerous than the bad ideas themselves.

But that’s where civility comes in.

If free speech is to achieve its purpose—if it is meant to facilitate a process in which citizens consider and vet all ideas, consider all perspectives—we need to listen to each other. Insults, labeling, dismissing, racist “dog whistles”—all those hallmarks of incivility—make it impossible to have the kinds of genuine conversations and productive disagreements that the First Amendment is intended to foster.

Screaming invective across political or religious divides actually undermines the purpose of the First Amendment’s Free Speech provisions. Is such speech protected? Absolutely. Is it useful? Absolutely not.

There are multiple reasons for the recent rise in incivility, but the anonymity and distance afforded by the internet and social media are clearly important contributors. As many of you know, I have a daily blog, and I’ve found it necessary to impose standards of conduct for commenters. Civil disagreements are encouraged; ad hominem attacks, personal nastiness and unrepentant bigotry are not welcome and will not be tolerated, not just because they are unpleasant and hurtful, but because people engaging in those behaviors derail the substantive and instructive disagreements that people with different perspectives need to explore if we are going to live and work together.

Responding to a Facebook argument or Twitter blast with an insult may make you feel better, but it doesn’t advance the conversation, and it certainly doesn’t count as participation in the marketplace of ideas.

Defending obnoxious and uncivil behavior as “Free Speech” is the ultimate hypocrisy.

 

 

 

 

Free Speech Conundrums

A friend of mine–a very thoughtful observer of American life and culture–asked for my opinion of the ACLU’s reported decision not to represent Charlottesville protestors alleging violation of their free speech rights if the “speakers” were armed at the time.

I haven’t seen a detailed statement to that effect, but based upon what I know, I agree with it.

When I teach the free speech clause, I tell students it requires distinguishing between speech—defined as the transmission of an idea—and action. The government cannot prohibit or punish the articulation of a message; it can, however, justifiably prohibit or punish harmful actions.

It isn’t always easy to draw the line, to identify when a message or idea becomes something else.

I illustrate the dilemma by giving students a number of “scenarios” requiring that they  decide whether something was speech or intimidation, speech or fraud, speech or harassment, speech or the first step in commission of a crime ( the RICO arguments).

Assume that a 6’4″ muscular body builder tells a hundred pound 5’1″ woman “If you don’t let me [fill in the blank], I’ll beat you so badly you’ll be unrecognizable.” Assume, also, that he does nothing more–doesn’t lunge toward her, or otherwise make menacing moves–has he simply exercised his constitutionally-protected freedom of speech? Or is he guilty of threat and intimidation?

What’s the difference between a labor union picketing a store by marching on the sidewalk with placards, and anti-choice activists coming into a residential neighborhood with bullhorns and screaming from 2:00 a.m. to 7:00 a.m night after night in front of the home of the Director of Planned Parenthood? (True story.)

Can we draw a distinction between the speaker who says “I think we need to overthrow the government, and this is why,” and the one who tells a group of angry citizens “I’ve got the rifles outside in my truck! Everyone who’s with me come and get one and we’ll march on City Hall right now!”

As they used to say on Sesame Street, one of these things is not like the other. And by and large, the courts have understood the differences.

So I agree with the ACLU’s decision. (I am surprised; it seemingly breaks a long tradition of ACLU First Amendment absolutism.) In the real world, racist speech by an armed and confrontational White Supremacist crosses the line from protected expression to  criminal intimidation.

Permit me to offer an (admittedly imperfect) analogy: the ACLU supported the Supreme Court’s decision in Citizens United. I tend to be a free speech purist, and in the abstract, I agreed with the reasoning. But in the real world, that decision gives the rich and powerful permission to corrupt the political process and drown out the speech of others. I agree with former Indiana Supreme Court Justice Ted Boehm, who once told me that the original legal error, in his opinion, was Buckley v. Valeo’s equation of money with speech. I also agree with former Representative Lee Hamilton, who has said that the Supreme Court doesn’t need more Justices who graduated from Harvard Law; it needs more Justices who’ve run for County Sheriff.

The First Amendment protects the exchange of ideas, no matter how pernicious or hurtful or offensive. However, it does not protect actions that government can properly forbid, merely because those actions are accompanied by–or accomplished through–the spoken word.

It isn’t always easy to tell the difference, and we may not all agree on where the line should be drawn, but we have to draw it.

Sticks and Stones…

Remember the old child’s chant: sticks and stones may break my bones, but words will never hurt me?

It’s more complicated than that.

We have a legal system that distinguishes between acts and words, that protects expression of even the most hateful sentiments while forbidding people from acting on those sentiments.

There are all kinds of reasons–practical and theoretical–for prohibiting government censorship of even the most vile speech. I have addressed many of them previously. (If you want another exposition of those reasons, you could do worse than John Stuart Mill.) The Founders of this country certainly recognized that speech can be dangerous, but they believed–correctly, in my view–that giving government the power to decide which ideas could be expressed is a far greater danger.

Recognizing the difference in the degrees of harm inflicted by hurtful words and violent or otherwise harmful acts does not require us to ignore the very real–and deleterious–consequences of words. But we also need to understand that the only effective remedy is culture, not law.

Refusing to use bigoted terminology is not “political correctness.” It is recognition that decent adults do not contribute to the coarsening of society, and do not participate in the creation of a culture that winks at bad behavior.

Language shapes culture in ways too numerous to count. The nature of discourse considered appropriate for a civil society shapes the attitudes of the young and influences the behaviors of adults. Widespread use of language that diminishes people based upon their sexuality or religion or country of origin creates a belief that discrimination against those people is justified, and in the case of unbalanced folks (of whom there seem to be many), is seen as a license to harm them.

Do people have a right to express reprehensible opinions? Of course. I am one of those free speech purists who, like Voltaire, may “disagree with what you say but defend to the death your right to say it.” But the fact that people have a right to be hateful is not the same thing as an endorsement of their venom, and it does not require us to ignore or fail to condemn the unfortunate effects of such speech on American society.

The law cannot require us to grow up. That doesn’t mean we should behave like spoiled children– and it certainly doesn’t mean electing people who don’t understand the very real and very important difference between “political correctness” and adult behavior.

Cue the Censors….

Remember the chant from our childhood– “Sticks and stones may break my bones, but words will never hurt me”?

Of course, that has never been true; words can and do deeply wound. But the message of the chant is nonetheless important: just as we realize that politics is “warfare by another name,” and infinitely preferable, since politics at least lets us live to fight another day, discussion and debate and even name-calling are preferable to physical attacks.

Furthermore, the notion that robust speech and debate are an essential element of the search for truth is enshrined in the Free Speech clause of the Constitution’s First Amendment. Freedom not just for ideas with which we agree, but freedom even–perhaps especially– for the idea we hate, as Justice Holmes memorably put it.

And yet, if there is one constant through American history, it is the urge to suppress ideas that offend some person or faction. Pick up any newspaper or visit any news site, and there will be reports on efforts to censor. Two recent examples:

The Kansas State Senate on Wednesday passed S.B. 56, with twenty-six Republican senators supporting the measure, and six Republicans and eight Democrats opposing. The bill is ostensibly designed to protect students by making it illegal to display or present material that is “harmful to minors,” such as pornography.

But the broad categorizations and vague language have caused concern among teachers and free speech advocates about what will and won’t be policed.

Of course, what I think is “harmful to minors” may be rather different from what you think is harmful.

Censorship efforts are often accompanied by pious expressions of concern for children; other times, however, it is very clear that opponents of particular ideas simply want to suppress those ideas.

A Pennsylvania transit system permitted churches to advertise on the sides of its buses but refused to allow a group that doesn’t believe in God to place an ad containing the word “atheists,” fearing it would offend riders, according to a federal lawsuit filed Tuesday.

The County of Lackawanna Transit System repeatedly rejected the ads sought by the Northeastern Pennsylvania Freethought Society, telling the group it doesn’t permit advertising space to be used as a forum for public debate. The transit system also told the group its ad might alienate riders and hurt revenue, according to the lawsuit, filed in Scranton.

The transit system allowed several churches — as well as a political candidate and a blog that linked to anti-Semitic, Holocaust denial and white supremacist websites — to advertise before the Freethought Society first tried placing its ad in 2012, the suit said.

I don’t suppose it occurs to the censors that when you demonstrate fear of an opposing idea, you are simply highlighting the weakness of your own position….

 

 

Someone Needs to Explain Free Speech to Micah Clark

Recently, a State Trooper was sued for proselytizing a woman he’d stopped for speeding. The Indianapolis Star has the story.

Not surprisingly, our homegrown theocrats saw nothing wrong with this.

Micah Clark, executive director of the American Family Association of Indiana, said that although the traffic stop might not have been the best time to quiz someone about faith, he questioned whether a police officer should lose his right to free speech because he is wearing a badge.

“I have people pass out religious material all the time. Mormons come to my door all the time, and it doesn’t offend me,” Clark said. “(This case) might not be the most persuasive time to talk to someone about their faith, but I don’t think that a police officer is prohibited from doing something like that.”

Let’s try this slowly, so that even folks like Micah can understand: when people are acting in their individual capacities, they have free speech (and free exercise) rights. When they are acting on behalf of government–when they are what lawyers call “state actors”–the Establishment Clause of the First Amendment prohibits them from using their governmental authority to impose their religious beliefs on others.

That’s why a sectarian prayer from the Speaker’s Podium at the Statehouse violates the Establishment Clause, but a group of legislators voluntarily praying in the back of the chamber or on a street corner is protected by both the Free Exercise and Free Speech clauses of that same Amendment.

When you are acting as a private citizen, you can pray or proselytize to your heart’s content.

When you are acting as a representative of the government of all the people, you can’t.

It isn’t rocket science.