Tag Archives: Free Speech

Civility And The First Amendment

How many times have we heard someone defend a racist, belittling or otherwise nasty tweet or Facebook post by claiming that critics were attacking his or her  “First Amendment rights”?

The First Amendment may protect that person’s right to spew vitriol against government censorship, but it also protects the speaker’s critics–including, for that matter, decisions to fire the speaker from a private-sector position. Beyond that widespread misunderstanding of just what it is that Freedom of Speech protects, however, is a lack of appreciation of the important role of civility in America’s marketplace of ideas.

I recently participated in a “civility training” for Women4Change Indiana, and dug out a brief introduction to the topic that I had delivered a couple of years ago. Given how very un-civil American discourse has become, I thought it might be timely to share.

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Twenty-five years ago, when I was Executive Director of Indiana’s ACLU,  I mounted a campaign to promote civility and a more civil discourse. Several members let me know that they were upset, 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 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 dangerous–words and ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—to decide what sort of speech should be permitted– was far more dangerous.

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, racial “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 is clearly an important contributor. 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.

“No Brainer” Trump…

Several media outlets have reported on Trump’s enthusiastic embrace of a measure to outlaw flag burning. Congresscritters repeatedly introduce these bills, despite the fact that the Supreme Court ruled years ago that flag burning is protected under the First Amendment.

Ed Brayton commented on Trump’s history with the issue.

During the 2016 campaign, Trump said that anyone who burns an American flag — you know, all four of them in the entire country over the last few decades– should be stripped of their citizenship and be put in jail. Now two Republicans have proposed yet another bill to make flag burning illegal and he’s endorsing it on — where else — Twitter:

All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!

Coincidentally, No Brainer is the Secret Service’s code name for him.

You would think that an administration’s Press Secretary would try to intercede to protect freedom of expression, since all media–even rightwing outlets–rely on First Amendment protections to do their jobs. But of course, this is the Trump Administration, which has hired spectacularly dishonest specimens to fill that post. (My favorite description of departing Sarah Huckabee Sanders was penned by Bret Stephens of the New York Times, who wrote that Sanders “combined the sincerity of Elmer Gantry with the moral outlook of Raskolnikov.”)

Since no one currently serving in this administration seems to “get it,” let me see if I can explain the way free speech jurisprudence works in language that thinking people  (a category that rather clearly excludes the current occupant of the White House) can understand.

The Free Speech clause of the First Amendment protects the exchange of ideas against government censorship. All ideas. Even awful ideas. Ideas that piss people off. Government doesn’t get to decide which ideas get transmitted, period. (Your mother, on the other hand, can censor you. So can your boss. The Bill of Rights only restrains government.)

Government can prohibit actions for a whole host of reasons, but it cannot pick and choose among messages. If there is an ordinance banning outdoor burning in dry weather, for example, or laws criminalizing the theft of a flag belonging to someone else, people violating those laws can be punished, because those measures don’t implicate an exchange of ideas. They are what lawyers call “content neutral.”

The rules are different for actions we call “symbolic speech.” These are actions that are clearly intended to communicate ideas. A silent march by Neo-Nazis–or any group of activists– doesn’t require verbal expression to send its message. We get it.

Flag burning offends us precisely because it sends an unmistakable message of disrespect for the country.

Brayton illuminated another common misunderstanding of what the First Amendment  does and does not protect, in a post about a Tennessee police officer who had advocated killing gay people.

Grayson Fritts, the Tennessee sheriff’s deputy/pastor who gave a sermon calling for LGBT people to be put to death, has been given a buyout and allowed to resign rather than be fired. And his boss says that’s because firing him would violate his First Amendment rights. I’m virtually a free speech absolutist, and I can say without hesitation that he is totally wrong….

If he was just a preacher who said that, I’d excoriate him for it but still support his constitutional right to say it. But as a government employee whose job is to administer justice fairly and equally, it’s a clear violation of his oath of office to think that some of the people he is charged with protecting and serving should be murdered by the state because he doesn’t approve of them. There is no free speech issue there.

A zoning administrator handing out religious tracts on the job is violating the terms of her employment, and a President trying to stifle views with which he disagrees is violating the terms of his. Free speech jurisprudence doesn’t protect them.

When elected officials–from the President on down–are abysmally ignorant of the constitution they swear to uphold, we’re in a world of hurt.

Fox And Its Friends

Both the New York Times and the Washington Post have reported the acrimonious departure of Fox News commentator and author Ralph Peters from that cable channel. As the Post described the resignation,

Commentator and author Ralph Peters isn’t just closing the door on his career at Fox News Channel. He’s slamming it right off the hinges.

In a blistering goodbye email, Peters, a retired Army lieutenant colonel who commented on military affairs, called Fox “a mere propaganda machine for a destructive and ethically ruinous administration.” He described President Trump as being “terrified” of Russian president Vladi­mir Putin.

Peters accused Fox of assaulting America’s constitutional order, undermining the rule of law, and “fostering corrosive and unjustified paranoia among viewers.”

Peters had been associated with Fox for ten years, and it’s hard not to wonder what took him so long to recognize the cable channel’s business plan, which has always depended upon pandering to the biases of conservative viewers, no matter how much that required doing violence to accurate reporting–but I suppose it’s better late than never.

Although Peters didn’t use the word “treason” in the blistering email he sent to the organization, the implication was hard to ignore.

When prime-time hosts — who have never served our country in any capacity — dismiss facts and empirical reality to launch profoundly dishonest attacks on the FBI, the Justice Department, the courts, the intelligence community (in which I served) and, not least, a model public servant and genuine war hero such as Robert Mueller — all the while scaremongering with lurid warnings of ‘deep-state’ machinations — I cannot be part of the same organization, even at a remove. To me, Fox News is now wittingly harming our system of government for profit.

Previously during his ten-year stint as a Fox commentator,  Peters said that his producers had never given him a script, or instructed him what to say. In the past year, however, as questions  about the possibility of collusion between Trump’s campaign and Russia continued to gain salience, Fox refused to let him comment on the topic, despite the fact that he has considerable relevant expertise. (He was a former intelligence officer.)

There has been a good deal of research by political scientists into the operation of “confirmation bias”–a very human trait we all share to some degree. Fox–along with talk radio demagogues and outlets like Breitbart and InfoWars–intentionally feeds conservatives’ desire to see their beliefs confirmed by “news.” (At the other end of the spectrum, “Addicting Info,” “Occupy” and others provide similar grist for liberal true believers, but research suggests that their influence pales in comparison with Fox.)

Here in a nutshell (no pun intended) is the dilemma of a liberal democracy committed to the principle of free speech. The marketplace of ideas must be open to all–ideologues and cranks as well as thoughtful commentators and accurate journalists. That means the consumers in that marketplace must be discriminating, in the best sense of that word. They must be able to separate the wheat from the chaff. And in a country where civic and news literacy are low, consumers are more likely to “buy” substandard or counterfeit  products.

I’m glad Peters finally figured out that Fox cares more about profit than patriotism, more about ratings than reality. Somehow, however, I doubt that his departure will prompt many loyal viewers to change the channel.  Confirmation bias may be more addictive than cocaine.

 

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.