Tuesday, July 28, 2009

So you think you support free speech

Remarks at Utah State University
The Media and Society Lecture Series
Feb. 23, 2005

“I’m all for free speech. It’s the newspapers I can’t stand.”
--Tom Stoppard from his play, “Day and Night”
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

By a raise of hands, how many of you are in favor of free speech?

Now let’s test your tolerance for free speech. Consider these two statements:

Ward Churchill, University of Colorado professor:
“True enough (those in the World Trade Center) were civilians of a sort. But innocent? Gimme a break. They formed a technocratic corps at the very heart of America's global financial empire – the ‘mighty engine of profit’ to which the military dimension of U.S. policy has always been enslaved – and they did so both willingly and knowingly. Recourse to ‘ignorance’ – a derivative, after all, of the word ‘ignore’ – counts as less than an excuse among this relatively well-educated elite. To the extent that any of them were unaware of the costs and consequences to others of what they were involved in – and in many cases excelling at – it was because of their absolute refusal to see. More likely, it was because they were too busy braying, incessantly and self-importantly, into their cell phones, arranging power lunches and stock transactions, each of which translated, conveniently out of sight, mind and smelling distance, into the starved and rotting flesh of infants. If there was a better, more effective, or in fact any other way of visiting some penalty befitting their participation upon the little Eichmanns inhabiting the sterile sanctuary of the twin towers, I'd really be interested in hearing about it.”
Michael Savage, radio talk show host:
“When you hear ‘human rights,’ think gays. ... [T]hink only one thing: someone who wants to rape your son. When you hear ‘human rights,’ think only someone who wants to molest your son, and send you to jail if you defend him. Write that down, make a note of it.”
Are you outraged? I hope so. Do you believe that these statements deserve the protection of the First Amendment?

The scary truth is that Americans don’t know what to think about free speech. A recent survey by the First Amendment Center found:

• 30% of Americans agreed with the statement that the First Amendment goes too far in the rights it guarantees.

• 42% of Americans said the press has too much freedom.

• 77% said it is important that the news media act as a watchdog on government.

• 44% disagreed with the statement that people should be allowed to say things in public that might be offensive to religious groups.

• 63% disagreed with the statement that people should be allowed to say things in public that might be offensive to racial groups.

• 45% said the U.S. Constitution should be amended to prohibit burning or desecrating the American flag.

• 56% said newspapers should be allowed to freely criticize the U.S. military about its strategy and performance.

• 51% agreed that, as part of its war on terrorism, the government should be allowed to monitor certain religious groups even if that means infringing upon the religious freedom of those groups’ members.

In another survey of high school students by the Knight Foundation, more than a third said the First Amendment’s guarantees went too far. Only half said newspapers should be allowed to publish freely without government approval of stories. Three in four said flag burning is illegal (which it is not). About half said the government can restrict any indecent material on the Internet. (It cannot.) About one in five students said people should not be allowed to express unpopular views.

That, folks, is very, very frightening.

Supporting the First Amendment, and specifically its guarantees of freedom of speech and the press, is easy when we agree with the speech in question. The real test is when we disagree with or fear what’s being expressed.

One of the most difficult issues confronting any community newspaper is reconciling its role as a protector and implementer of the First Amendment with its desire to facilitate a civil and respectful community discourse. What to one person may be a simple and frank exchange of ideas is offensive and outrageous to another. How far should a newspaper go in policing this exchange?

Here’s one view from someone whose name should be familiar to you:
“The First Amendment generally, and freedom of expression in particular, are not absolute concepts, and that is why they are at once so difficult to administer and so essential to a free society and an educated citizenry. Community interests and civility have always to be weighed in the balance.” (Kermit Hall, former president of Utah State University)
This is a compelling argument. Unfortunately, too often demands for civility mask a more troubling intent – to curtail speech with which we disagree. In other instances, the intent is good but the issue gives rise to many difficult questions. Who decides what’s offensive? Even if speech is nearly universally considered offensive, should it really be against the law? Which is a higher value, free expression or enforced civility? What exactly are we afraid of?

The mere existence of the Orwellian term “free speech zone” – demarcated plots for “free speech” in areas near where President Bush gives public speeches – should give us great pause. As 65-year-old retired steelworker Bill Neel commented after being arrested for speaking his mind outside one of the “free speech zones”: “I thought the entire country was a free speech zone.” By definition, what exists outside a free speech zone? It’s not just the Republicans, of course. The Democrats set up similar zones during their national convention in Boston.

But we fear that the speech may get out of hand, right? The trouble is, we shouldn’t censor speech out of a fear of what it might lead to. If protesters go beyond the First Amendment’s guarantee “peaceably to assemble,” arrest them, and good riddance. Until they reach that point, leave them alone.

Speech codes are all the rage on college campuses today – an ill-advised attempt to impose political correctness at the very venues where the First Amendment should be revered and upheld most generously. Consider these examples, taken from the web site for the Foundation for Individual Rights in Education, all of which I have personally confirmed. I should note that some of these have actually been enacted while others are just proposed:

• Brown University wants to ban "verbal behavior" that produces "feelings of impotence, anger, or disenfranchisement," whether "intentional or unintentional." What is “verbal behavior?” It’s either verbal, or it’s behavior. And if I say to someone, “you’re such a wuss,” have I produced “feelings of impotence” in that person making me subject to some kind of censure, or worse?

• The University of Connecticut requires that “all members must accept responsibility for creating an environment that promotes individual growth and builds community through the safe, respectful exchange of diverse thought, opinion, and feeling.” Guess what: A real exchange of diverse thought, opinion and feeling can never be safe. It’s risky, personal, difficult, messy stuff.

• Syracuse University’s handbook states that “Students have the right to express themselves freely on any subject provided they do so in a manner that does not violate the Code of Student Conduct.” I’d suggest that any free speech policy that includes the words “provided” or “so long as” is more likely a censorship policy. It further prohibits “harassment, whether physical or verbal, oral or written, which is beyond the bounds of protected free speech, directed at a specific individual(s), easily construed as ‘fighting words,’ and likely to cause an immediate breach of the peace.” By extension, one must assume that if I were to step on campus and shout the words, “the Orangemen suck,” I’d be breaking the student code. I don’t know any more provocative fighting words than those. Basketball games at Syracuse must be deathly quiet. Wouldn’t a cheer encouraging the team to “beat Notre Dame” be considered “fighting words?” More seriously, what if I said, “All overweight white 46-year-old men with facial hair should be imprisoned without delay?” That’s outrageous, inflammatory and just wrong. But it’s also Constitutionally protected speech. If someone actually takes steps to follow through on that suggestion, now we’ve likely got a violation of law.

• At one point West Virginia University enforced "free speech zones" that comprised only one percent of the public campus.

• The University of North Dakota’s student code prohibits “any action, activities, or situations intentionally created to produce unnecessary or undue mental or physical discomfort, embarrassment, harassment, ridicule, excessive fatigue, interference with scholastic or personal lives, or exposure to situations wherein one’s physical or mental well-being may be in danger.” Intended to restrict hazing, this policy appears to me to put serious limits on football practice, too. Another part of the code states: “This section is not violated by actions that amount to expression protected by the state or federal constitutions or by related principles of academic freedom.” Good luck figuring out what that means.

You may ask how Utah State University fares. The answer is mixed. USU’s student code begins with this contradictory paragraph:
“As members of the academic community at Utah State University, students share responsibility for its growth and continued well being and for maintaining an environment which encourages free inquiry and expression.” So far, so good. “Students are expected to engage in reasonable and substantial preparation for their coursework and to follow course and class guidelines as set forth in syllabi and as enunciated by their instructors.”
No problem there. Now, however, here comes the politically correct censorship language.
"All interactions with faculty members, staff members, and other students shall be conducted with courtesy, civility, decency, and a concern for personal dignity.”
Oh, brother. Oops, sorry. I hope I haven’t injured anyone’s personal dignity with that uncivil remark.

There is a more positive clause later in the code, which guarantees “The right, subject to time, place, and manner restrictions, to express personal opinions on campus, to support or oppose causes, to arrange public assemblies, and to hold rallies, demonstrations, and pickets which do not materially and substantially interfere with normal university activities or the rights of others. Institutional control of facilities shall not be used as a censorship device. Any institutional regulation regarding time, place, and manner of expression must be content-neutral, must be narrowly tailored to serve a significant university interest, and must leave open ample alternative channels of communication.” That’s not bad, though still too restrictive in my book. It is interesting that one section of USU’s student code is called “Procedures for Freedom of Expression.” Hmmm. It’s not really freedom of expression if it involves procedures, is it?

Conservatives’ instinct is to legislate their version of morality. Liberals’ tendency is to legislate their type of civility. Either effort does violence to civil liberties. I like what former Chief Justice Warren Burger once wrote on the subject:
"A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and, like many other virtues, it cannot be legislated."
California will find itself confronting this issue after the passage last year of new hate crime legislation that targets certain types of speech. Here’s some of the language of that new law:

“Speech alone is not sufficient to support an action brought [under this law] except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.”
This is a Pandora’s Box. Who gets to decide what constitutes speech that “threatens violence against a specific person or group of persons?” This, in my view, is a classic example of well-intentioned lawmaking gone horribly wrong. For example, if a street preacher proclaims, “Vengeance is mine, sayeth the Lord,” should he be thrown in jail? Perhaps so long as it’s the Lord threatening violence we can get away with it.

I beg your indulgence for a few moments while I review a little Supreme Court history. For starters, it should be noted that laws like the new hate speech law in California have generally been upheld by our Supreme Court. In a case going back to 1942, the court ruled that:
“(I)t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
It should also be noted, however, that the Court generally has been reluctant to uphold convictions of persons prosecuted under such laws, often finding that the language or administration of the law was too vague. One analysis puts it this way:
“(It is) not clear … whether only actual disorder or a clear and present danger of disorder will entitle the authorities to terminate the speech or other expressive conduct. Neither, in the absence of incitement to illegal action, may government punish mere expression or proscribe ideas, regardless of the trifling or annoying caliber of the expression.”
In other words, the courts are still trying to figure out what it means to not abridge freedom of speech, but at the very least annoying, obnoxious or objectionable speech is protected.

While I’m certainly no Constitutional scholar, it’s clear to me that the standards established by university speech codes and the new California law go well beyond the threshold set by Supreme Court Justice Oliver Wendell Holmes, who coined the phrase “clear and present danger” to determine when speech should be regulated. The famous analogy he used was falsely yelling “fire” in a crowded theater, which would present a clear and present danger to those in the building. Ironically, Holmes used this phrase in a dissenting opinion, but it eventually came to be accepted by the Supreme Court as the standard test for restricting free speech. The “clear and present danger” test certainly is a far higher standard than California’s threshold that an individual “reasonably fears” that violence will be committed against them as a result of someone’s speech.

Underlying all of this talk of free speech is a relatively simple but sublime concept: The marketplace of ideas. This, too, comes from a famous dissent by Oliver Wendell Holmes, in which he wrote:
“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition ... But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”
But, you say, haven’t our political campaigns gotten out of hand?

Take this exchange, for example:

Candidate A: My opponent represents "cut-throats who walk in rags and sleep amidst filth and vermin."

Candidate B: My opponent has two mistresses from Europe and plans to nullify the Constitution and name his son King.

These claims were made by surrogates for John Adams and Thomas Jefferson during the campaign of 1800. And you thought taking the low road was a modern phenomenon. Hardly. The rhetoric used by our Founding Fathers makes the 2004 campaign look like a race for home room president. And it got worse.

Here’s an excerpt from a wonderful column by Tamim Ansary, author of the critically acclaimed memoir West of Kabul, East of New York and 38 nonfiction books for children.

In 1820, “Andrew Jackson was running against the incumbent president, John Quincy Adams. Jackson's people nicknamed Adams ‘The Pimp’ because he introduced the czar of Russia to a young woman, with whom the czar later had an affair. They also charged that Adams had installed ‘gambling furniture’ in the White House (he had bought a pool table).”

“From the president's followers came this mature rejoinder: ‘General Jackson's mother was a COMMON PROSTITUTE brought to this country by British soldiers! She afterward married a MULATTO MAN, with whom she had several children, one of whom was Andrew Jackson!

“Moving along now to Abraham Lincoln, arguably our greatest president. His opponents made a campaign issue of his looks. To be blunt, they called him ugly. Remember the nickname Honest Abe? Democratic newspapers called him ‘Honest Ape’ and ran cartoons depicting the great man as a monkey! Racist innuendo? You bet--and unblushingly so! Lincoln's opponents calculated that more than a few people at the time regarded racism as respectable.

“The election of 1876 (if you believed the dueling campaign literature) came down to a choice between an alcoholic, syphilitic con artist (Samuel Tilden) and a man so venal he robbed corpses on the battlefield during the Civil War and once shot a gun at his own mother (Rutherford B. Hayes).

“In short, American politics was never an elegant debating club guided by the values of Miss Manners.”
Truly unfettered speech may be untidy, but we have no business regulating it unduly. We should demand civil discourse by supporting reasonable cultural standards, not by passing laws against bad language. Our well-meaning attempts to enforce civil and proper debate put in jeopardy a higher value – unrestricted expression. As our Founding Fathers expressly stated: “Congress shall make no law … abridging the freedom of speech, or of the press.” Could they have been any clearer?

But in this post-9/11 era, isn’t it worth giving up some freedom in exchange for safety? Here’s what Benjamin Franklin had to say on the subject: “Any society that would give up a little liberty to gain a little security will deserve neither and lose both.” I couldn’t agree more.

Of course, the really dicey issues involve obscenity, pornography and violence. What is acceptable? The most famous view is that of Supreme Court Justice Potter Stewart, who wrote in a concurring opinion:
“It is possible to read the Court's opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
The “I know it when I see it” definition of obscenity is a dangerous one for what I think are obvious reasons. This definition depends on the cultural, religious, and intellectual prisms through which the viewer experiences the speech in question. For example, some years after the Potter opinion, a Utah Supreme Court Justice wrote the following in an opinion about a pornographic movie:
“A more sickening, disgusting, depraved showing cannot be imagined. However, certain justices of the Supreme Court of the United States have said that before a matter can be held to be obscene, it must be ‘... when taken as a whole, lacks serious literary, artistic, political, or scientific value.’

“Some state judges, acting the part of sycophants, echo that doctrine. It would appear that such an argument ought only to be advanced by depraved, mentally deficient, mind-warped queers. Judges who seek to find technical excuses to permit such pictures to be shown under the pretense of finding some intrinsic value to it are reminiscent of a dog that returns to his vomit in search of some morsel in the filth which may have some redeeming value to his own taste. If those judges have not the good sense and decency to resign from their positions as judges, they should be removed either by impeachment or by the vote of the decent people of their constituency.”
Well, now, there’s a calm, rational point of view!

In general, more speech is better than less. Even when I believe that a letter to the editor or comment in a guest column casts me or my newspaper in an unfair or unflattering light, my instinct and general practice is to print it. I believe that the readers of the Post Register in eastern Idaho, if given information clearly and in context, can arrive at their own conclusions regarding what is said. If the choice is between messy free speech and tidy muzzled speech, I will lean toward the former. I recognize that I draw a less restrictive line than some of our readers would like.

Before I close, please forgive a brief digression into a semi-related issue: confidential sources. Too many newspapers – the San Francisco Chronicle and the New York Times most recently – attempt to equate the use and protection of confidential sources with the First Amendment. This is nonsense. Guarantees of press freedom are not absolute, and they certainly don’t extend to protecting sources. Some states have shield laws, which protect reporters from prosecution if they don’t want to divulge their confidential sources. Unfortunately, this protection encourages reporters and their sources to play fast and loose with the facts, including the publication of grand jury testimony (in the case of the Chronicle) that wasn’t subject to cross-examination or other scrutiny. The First Amendment does not give us the right to use confidential sources, and it is a dangerous practice that threatens the credibility of journalists. It should be reserved for only the most extraordinary situations.

Finally, I recognize that this is more art than science. No one understood that more than Thomas Jefferson, who in 1823 wrote this to his friend Lafayette: "The only security of all is in a free press. The force of public opinion cannot be resisted when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary, to keep the waters pure." This is the same man who, as president, said on several occasions that “the advertisement is the most truthful part of a newspaper.”

Here’s my view: Except in the rarest of instances – those that constitute a “clear and present danger” – the government and its entities, including our public universities (or private universities receiving public funding), must let speech happen. Draw the line when someone acts in a way that deprives others of their safety or freedom. If the speech simply makes others uncomfortable, let it rip. That will sort itself out. Among other things, it’s how we sort out the kooks from the rational people.

I believe in the advice of that famous revolutionary pamphleteer, Thomas Paine, who wrote: “I have always strenuously supported the right of every man to his own opinion, however different that opinion may be to mine. He who denies to another this right, makes a slave of himself to his present opinion, because he precludes himself the right of changing it.”

The title of my remarks today comes from a semi-famous play by famous playwright Tom Stoppard. The play, “Night and Day,” takes place in a fictional African country locked in a civil war. At one point, one of the protagonists of Stoppard’s story says, “No matter how imperfect things are, if you’ve got a free press, everything is correctable. Without it, everything is concealable.” And so it is.


And now, for something completely different... A scene from Monty Python and the Holy Grail.

ARTHUR: How do you do, good lady. I am Arthur, King of the Britons. Who's castle is that?

WOMAN: King of the who?

ARTHUR: The Britons.

WOMAN: Who are the Britons?

ARTHUR: Well, we all are. We are all Britons, and I am your king.

WOMAN: I didn't know we had a king. I thought we were an autonomous collective.

DENNIS: You're fooling yourself. We're living in a dictatorship. A self-perpetuating autocracy in which the working classes--

WOMAN: Oh, there you go, bringing class into it again.

DENNIS: That's what it's all about. If only people would hear of--

ARTHUR: Please, please good people. I am in haste. Who lives in that castle?

WOMAN: No one lives there.

ARTHUR: Then who is your lord?

WOMAN: We don't have a lord.


DENNIS: I told you. We're an anarcho-syndicalist commune. We take it in turns to act as a sort of executive officer for the week.


DENNIS: But all the decision of that officer have to be ratified at a special bi-weekly meeting--

ARTHUR: Yes, I see.

DENNIS: By a simple majority in the case of purely internal affairs,--

ARTHUR: Be quiet!

DENNIS: But by a two-thirds majority in the case of more major--

ARTHUR: Be quiet! I order you to be quiet!

WOMAN: Order, eh? Who does he think he is? Heh.

ARTHUR: I am your king!

WOMAN: Well, I didn't vote for you.

ARTHUR: You don't vote for kings.

WOMAN: Well, how did you become king then?

ARTHUR: The Lady of the Lake,...
[angels sing]
...her arm clad in the purest shimmering samite, held aloft Excalibur from the bosom of the water signifying by Divine Providence that I, Arthur, was to carry Excalibur.
[singing stops]
That is why I am your king!

DENNIS: Listen, strange women lying in ponds distributing swords is no basis for a system of government. Supreme executive power derives from a mandate from themasses, not from some farcical aquatic ceremony.

ARTHUR: Be quiet!

DENNIS: Well, but you can't expect to wield supreme executive power just 'cause some watery tart threw a sword at you!

ARTHUR: Shut up!

DENNIS: I mean, if I went 'round saying I was an emperor just because some moistened bint had lobbed a scimitar at me, they'd put me away!

ARTHUR: Shut up, will you. Shut up!

DENNIS: Ah, now we see the violence inherent in the system.

ARTHUR: Shut up!

DENNIS: Oh! Come and see the violence inherent in the system! Help, help! I'm being repressed!

ARTHUR: Bloody peasant!

DENNIS: Oh, what a give-away. Did you hear that? Did you hear that, eh? That's what I'm on about. Did you see him repressing me? You saw it, didn't you?

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