Rethinking free speech

The aftermath of the terrorism in Charlottesville, Va.,has presented the greatest challenge to support for the breadth of the concept of free speech in years, and it appears to be softening.

Both the New York Times and the Boston Globe today carry calls to clip its wings somewhat after the American Civil Liberties Union fought for the right of Nazis and white nationalists to march in Virginia.

“Sometimes even a free speech fanatic like me is forced to admit that the correct answer is ‘shut up,’” Globe columnist Hiawatha Bray writes.

Last week, Bray penned a defense of the free speech rights of former Google engineer James Damore, who wrote a memo his colleagues didn’t like, as he characterized it.

But enough free speech is enough. Bray is applauding the decision by internet providers to oust the Daily Stormer, the pro-Nazi web site, which is returning to the “dark web.”

It might sound like an about-face for me, the guy who teed off on Google just last week for firing employee James Damore because he wrote a memo his colleagues didn’t like. Where’s my reverence for freedom of expression?

It’s right here, strong as ever. I’m pretty nearly an absolutist about such things. I favor the free expression of pretty much all opinions, even bigoted and hateful ones. But if it’s your view that your opponents ought to be killed, it’s time to shut you up.

This is a long way from James Damore’s memo, which suggested that biological differences between men and women may explain Google’s diversity problem. Controversial? Immensely. Hateful? Not even a little bit.

Even so, Google had a right to fire him for writing it. I just think it was a dumb and perhaps dangerous thing to do, because it called into question Google’s regard for the open exchange of ideas. Remember that Google has a near-stranglehold on our access to Internet information. If such a company would fire a man merely for writing a controversial memo, what’s to stop it from shielding all of us from “bad ideas”? For our own good, of course.

The Daily Stormer situation is quite different, on multiple levels. First, neither Google nor GoDaddy have the power to drive this site from the Internet altogether. There are plenty of other domain hosting services where the Stormer can peddle its poisons.

Meanwhile, in a New York Times op-ed, K-Sue Park, a housing attorney and the Critical Race Studies fellow at the UCLA. School of Law, wants the ACLU to rethink the protections of the First Amendment.

Park, a former volunteer with the ACLU, says the organization’s support for the First Amendment is dangerous because it doesn’t protect all people equally.

The question the organization should ask itself is: Could prioritizing First Amendment rights make the distribution of power in this country even more unequal and further silence the communities most burdened by histories of censorship?

This is a vital question because a well-funded machinery ready to harass journalists and academics has arisen in the space beyond First Amendment litigation. If you challenge hateful speech, gird yourself for death threats and for your family to be harassed.

Left-wing academics across the country face this kind of speech suppression, yet they do not benefit from a strong, uniform legal response. Several black professors have been threatened with lynching, shooting or rape for denouncing white supremacy.

Government suppression takes more subtle forms, too. Some of the protesters at President Trump’s inauguration are facing felony riot charges and decades in prison. (The A.C.L.U. is defending only a handful of those 200-plus protesters.) States are considering laws that forgive motorists who drive into protesters. And police arrive with tanks and full weaponry at anti-racist protests but not at white supremacist rallies.

Park says the ACLU’s unwavering support for free speech presumes that all radical views are equal.

In 1992, the U.S. Supreme Court was unanimous when it declared unconstitutional a St. Paul ordinance restricting symbols of hate in the form of a burning cross on the lawn of a black family on Dayton’s Bluff. It was a seminal free speech case.

Nonetheless, Justice Byron White advocated the idea that restrictions on hate speech could restrict “only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace.”

He joined the judgment, he said, “but not the folly of the opinion.”

Twenty-five years later, and 15 years after his death, White is picking up some supporters.

Related: The case against free speech for fascists (Quartz)

City Issues Permit For ‘Free Speech Rally’ On Boston Common (WBUR)

  • Gary F

    Just who makes the decision what isn’t free speech? Will public areas named after Robert E Lee come down and stuff named after Sen Byrd stay up?

    • Sam M

      When the speech says that others aren’t entitled to their freedom I think we can draw a pretty decent line.

      • Gary F

        Like Citizens United? or the 2nd Amendment? Just who makes those decisions?

        • Umm….. the U.S. Supreme Court.

        • >>Just who makes those decisions?<<

          You were out when they covered this in Civics class?

          • Barton

            realizing, of course, that they don’t seem to teach Civics anymore?

          • “Social Studies” then…

          • Jerry

            What the heck has my brother been doing when he goes to work as a social studies teacher then?

          • jon

            Your brother has been lying to you… along with the liberal media, and the state’s educational requirements.

            He is probably a paid protester, or a super spy for the CIA.

            🙂

          • Laurie K.

            Depending on the school district, they do still teach Civics. It was a required class for my children not too long ago.

      • RBHolb

        If there is any place to draw the line, that is not it.

        For all the idealistic, high-minded talk about free exchange of ideas, it is the most repugnant speech that needs the most protection. Censorship is, like it or not, a slippery slope. It is also a temptation to all governments, right, left, or moderate (what liberal does not occasionally have private fantasies about the FCC arresting Rush Limbaugh?). Saying nothing more than “others aren’t entitled to their freedom” is pretty weak stuff, in the scheme of things. Besides, it;s an awfully subjective point–don’t you know any libertarians who will whine and cry about the jackbooted tyranny that makes them pay income taxes?

        On this topic, I would recommend Fred Friendly’s book “Minnesota Rag,” the story behind the landmark SCOTUS opinion in Near v. Minnesota. The “rag” in that case was a scandal-mongering tabloid. Colonel McCormick, of Chicago Tribune fame, was the “rag’s” main supporter in the litigation, reasoning that, if they go after a scandal sheet in Minnesota today, tomorrow they’re coming for the Chicago Tribune.

        • Sam M

          So infringing on someone else’s liberty isn’t a good place? I think that’s the perfect yardstick to measure it by.

          • RBHolb

            There is a big difference between “say[ing] “that others aren’t entitled to their freedom” and actually “infringing on someone else’s liberty.”

          • Sam M

            What purpose does it serve to talk about infringing besides inflaming, taunting and threatening? I don’t believe threatening people is a protected form of speech and neither is slander/libel. I guess I don’t really see the difference.

          • RBHolb

            Theoretical discussion?

            Again, if you’re personally threatening someone, that is a different matter from saying someone’s liberty should be taken away. I find The Turner Diaries to be repugnant (based on the descriptions of others–I wouldn’t touch that trash), but it is still protected speech. I don’t want the government deciding for me when I should feel threatened.

    • Are you talking constitutionally-protected free speech? Because that answer is pretty easy.

      • Gary F

        Who makes that call? Where does it start, where does it end? Who gets to make the decision? Yes. Very, very, subjective.

        • It’s really not. The Supreme Court makes the call on what is constitutionally protected speech. Politicians make the call on statues on their property since they (a) own the property and (b) own the statues.

          There’s still nothing to prevent YOU from putting up a statue of Robert E. Lee on your lawn but the pols are empowered by people to make those decisions. Is it any more or less “subjective” than state legislators deciding to limit the power of a city to enact an ordinance? I don’t see how.

          • jon

            Amazes me how many online constitutional scholars never got so far as to read article III of the constitution…

          • MikeB

            TL;DR

          • Jay T. Berken

            “(a) own the property”

            As long as there isn’t an ordinance whether city, county or association, against it. It is mostly the association ordinance that don’t allow you to have things in your yard. The funny thing is people move within these places that have requirements.

          • You could also put them in a hotel lobby, if you owned such things.

          • rosswilliams

            Lets be clear, the Supreme Court that “makes the call” is made up of 9 politicians. So the real answer is politicians decide. And we have enough history with the court to understand that they almost always decide in favor of those in power.

        • MikeB

          Very subjective. Always has been. This is just a continuation.

    • Rob

      How is free speech implicated when a government picks and chooses which statues are on government-owned property? The statues may be profoundly inappropriate for other reasons, but where’s the free speech issue?

      • Sam M

        My wife changes out decorations and pictures all the time in our house. I would argue that’s all they are doing here really.

  • Mike

    Once again, we’re being told that we need to restrict civil liberties for “safety.” This has been a continuing refrain of people in positions of power since 9/11.

    If anyone believes that, once a legal precedent of government censorship is established, it will be restricted only to “hate speech,” they are extremely naive. Governments that have the power to restrict speech based on its content use that ability to suit the preferences of politicians and other powerful factions.

    I find the need to defend the Bill of Rights more depressing than anything a white supremacist protester could possibly do. The founders of this country were profoundly skeptical about concentrated power in the hands of government, which is why we have the separation of powers in the Constitution and the Bill of Rights. To forget the wisdom of that skepticism is a grave mistake.

    The ACLU defends the rights of all kinds of marginalized people, including illegal immigrants, Muslims, and fringe left-wing groups. Like all organizations, its budget is limited. If you support robust freedoms, then donate to the ACLU so that they can defend even more of them.

    • jon

      Not all slopes are slippery. Full stop.

      Limiting one type of speech isn’t the same as limiting all types of speech, we already limit speech that incites violence, yet no one is saying that because we can’t incite violence the next thing on the list is the right to express a political opinion (well some people are saying that because their political opinions are “let’s incite violence”)…

      Taking down a few confederate statues isn’t the same as taking down founding fathers statues… it just isn’t.

      The idea that everything we do sends us down an unstoppable path towards something else is a remarkable bit of conservative propaganda that we shouldn’t ever change anything.
      Obamacare is the first step to communism.
      Social security is going to make us all dependant on the government.
      Gay marriage will lead to people marrying animals.
      People being able to buy assault weapons is going to lead to billions of mass shootings and hour.

      All of these slippery slopes we aren’t sliding down. and certainly not sliding down without consideration and thoughtfulness.

      I’m not saying the bill of rights shouldn’t be defended.
      Indeed it should be vigorously defended, and perhaps occasionally amended and clarified… and never should we amend or clarify it simply because we are continuing to sliding down the slope, it should be done with thought and consideration. The way things are generally being done, and this notion that they aren’t undermine our current government as nothing but puppets being pushed this way and that without consideration for what their actions mean…

      Mostly though I think people just need to understand what their right to free speech actually means… because people seem to think that it means some one else is required to give them the soapbox to stand on… and it’s never meant that.

      • Mike

        // Not all slopes are slippery. Full stop.

        But many are, and this is one of them. Placing limits on speech that is meant to incite imminent violence is qualitatively different from placing limits on speech that is more abstract and advocates a political viewpoint. I have a right to say, “I think the U.S. government should be violently overthrown.” I don’t have a right to say, “Go kill that person over there.”

        The evidence is overwhelming, both currently and from history, that if you start allowing governments to censor viewpoints and opinions, they will use that power to censor the most marginalized people and groups, and will use it as a tool to maintain power for the already privileged.

        https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

        • jon

          That court case doesn’t seem to support your opinion that the slope is slippery… I’ve no idea why you linked it other than it shows the current state of things, and that is a state you don’t feel should be changed, which is the bases of your slippery slope argument…

          Many first world countries in europe have many more free speech restrictions than the US, and do not suffer from the same levels of inequality that the US does suffer from… I don’t think that the data supports your claim that this is a slippery slope, nor do I think that the process for changing laws is something that can happen without some thoughtfulness and debate.

          • Mike

            Here are a couple examples of how restrictions on speech are used against marginalized groups:

            http://www.bbc.com/news/uk-england-leeds-19883828
            http://www.timesofisrael.com/french-high-court-bds-activists-guilty-of-discrimination/

            The latter was later overturned by the French Supreme Court.

          • jon

            If you want to make a slippery slope argument you need to show a slide… you posted case law from 1969 that showed free speech in the US being restricted to not include inciting violence… and now in 2017 we are still discussing that slippery slope, we haven’t slide and further down 40 years later…

            You posted people who were involved in hate speech, and then tried, and either convicted or not depending on the specifics… Hey the system works!
            Laws discriminate against criminals… they are a marginalized group in society… doesn’t mean we shouldn’t have laws.

          • Mike

            Their only “crime” was expressing opinions that offended the majority.

          • jon

            The drug cartels only “crime” was taking a bunch of plants across an imaginary line.

    • Chris

      The first amendment is a constraint on government not private companies and not the people. Last I checked nazis are not a protected class who can’t be denied public accommodations. Nazis have a right to speak that the government can’t stop but the rest of us don’t have to be silent in their presence.

      • Mike

        The government can’t deny access to public facilities based on the identity or viewpoint of a particular group. That is quite obviously a violation of that group’s civil rights.

        • Chris

          I’m aware of that, thank you. Google or paypal can deny access to Nazis though and while some people may consider that a decrease in free speech, it is not a violation of anyone’s first amendment rights.

          • Mike

            As far as I know, what you say so confidently is actually debatable. If a business offers a service to the general public, its legal ability to discriminate against certain members of the public is constrained. For example, the court decisions that struck down Jim Crow in the South made it illegal for private businesses to discriminate on the basis of race.

            Courts have also recently held that businesses may not discriminate on the basis of sexual orientation (wedding cakes, etc.). I don’t know if a fringe political group has sued or been successful using this argument.

          • jon

            Nazis aren’t a protected class. People are free to discriminate against nazis.
            The things you can’t discriminate against are:
            Race.
            Color.
            Religion or creed.
            National origin or ancestry.
            Sex.
            Age.
            Physical or mental disability.
            Veteran status.

            Nazi status, and political opinions don’t make the cut. (at least at the federal level, your state laws may vary…)

          • Mike

            You don’t have to be a protected class to enjoy Constitutional guarantees. They apply to everybody.

            Sexual orientation is not a protected class according to federal law, but as I mentioned before courts have ruled increasingly that businesses cannot discriminate against GLBT people.

          • True. But it is a protected class in state law.

          • jon

            And the constitution doesn’t guarantee that I’ll not discriminate against you, only that the government won’t.
            If I’m mean to you, then you have no real recourse from the constitution.

            If I refuse to sell you a bullhorn for a nazi rally, the constitution doesn’t say I have to sell that to you.

            Sexual orientation is usually covered by state laws.

          • L. Foonimin

            Wouldn’t belief in “National Socialism” – Nazi philosophy, be considered a creed?

          • jon

            If you can convince the courts that a political party is a Creed as far as the civil Rights act is concerned…

          • Chris

            It will be quite a day when the Gorsuch court confirms Trump’s belief that nazis are equivalent to African American in needing civil rights protections. I think you’re wrong that it’s debatable, but strange things are happening everyday.

          • Mike

            The Bill of Rights applies to everyone, as does the Equal Protection Clause of the 14th Amendment. From a First Amendment perspective, the speech of wildly disparate groups is all equal, and all protected.

          • Chris

            I think you are misunderstanding…disparate speech may be protected from government restriction, but not from Google banning nazis.

          • Mike

            I’m not misunderstanding. I’m contesting your assertion that private companies can discriminate against whomever they like just because they’re not the government.

          • jon

            ok, then why are you talking about the bill of rights and the 14th amendment? Have you read those things? They don’t provide any of those protections. You might as well cite the repair manual for a 2006 ford focus…

            The civil rights act provides some protection, but not for nazis, as stated above, nazi’s aren’t in a protected class (state laws may vary).
            https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

          • Chris

            not “whomever they like”, but rather, whomever they like who isn’t a protected class in civil rights law. You’re either misunderstanding what I’m saying or what the first amendment protects. anyway…

    • I agree that on balance the ACLU does good work, and they do sometimes have a thankless job. But the eternal problem with law is that it invariably lags the reality of the present. In a mostly rural country with low population density and limited technology, the framers of the Constitution did the best job that they could. Today’s world is very different, and the courts can struggle trying to reconcile the scope of our foundational documents with the reality around them. For my part, I find the endless hand-wringing over “original intent” rather silly. It’s obvious that when free speech and Second Amendment “rights” include openly intimidating voters at a polling station, something is out of whack. Meanwhile, doctors in some states cannot speak to their family practice patients about the potential health hazards posed by guns in the home.

      So, yes, it is time to revisit what these rights are really about. We have a right to vote without intimidation. Doctors should be able to speak freely with their patients. We should be able to visit an anti-Trump website without the Justice Department collecting our IP addresses. We have a right to demonstrate in the public square – safely. It is time to step back from picking apart the minutia and take a broader look at what constitutes rights in today’s world, because the practical effect of a mindset of rural license is to suppress the rights of many in a densely populated modern urban society.

      • // Taking down a few confederate statues isn’t the same as taking down founding fathers statues… it just isn’t.

        Taking down statues isn’t infringing on speech at all since the people taking down the statues own them — or at least charged with owning them. They are determining what they wish to say with their speech. They don’t wish to say “we honor the Confederacy that fought the United States.”

        That’s not in any way a violation of free speech. That’s the embodiment of it.

        • jon

          think you got the response on the wrong post…

          Yes, taking down statues isn’t a free speech infringement. The statement was about slippery slopes.

          • right. Response to a reply one segment up.

  • Rob

    Threats made by non-government parties may be free speech, but can also cross the line into being tortious behavior. And I’m totally fine if people who make threats of violence or death against others are prosecuted on assault charges. Maybe if a few of the intimidators lose their social media privileges, it would curb the enthusiasms of other online harassers.

  • Speaking of free speech, I’m limiting yours today if you’re clearly trolling.

    • This is a privately run forum and it is your right to do that.

      /Heck, Julia has been “limiting” MY speech for over a decade now (used to call her “Shiva – Destroyer of threads”)

      😀

  • MrE85

    Just saw a friend on Facebook make a similar comment on restricting free speech, and I must say I was surprised and a little taken back.

    As the “Don’t be a sucker” video showed, It’s not about the fact that hate-speak is out there, but rather how we react to it.

  • MrE85

    These threads often remind me of the ending of “He’s Alive,” a particularly good episode of “The Twilight Zone.” https://www.youtube.com/watch?v=B3ID7k0_xn4

  • AL287

    There is a world of difference between the marches of the Civil Rights Era and the White Supremacy marches of 2017.

    Not one single marcher during Martin Luther King, Jr.’s era of non-violent protest was armed.

    Civil disobedience and armed protests are not even remotely similar. The white supremacy protesters in Charlottesville looked like armed riot police.

    Had they showed up with flags and signs instead of shields, helmets and rifles it would have been a true war of words and not violent confrontation. The speech is protected not the violent protest.

    I looked back at the pictures of the torch march on Friday through the University of Virginia campus. They couldn’t have weapons there because they are strictly prohibited on all U of VA campuses. The cowards picked the University of VA campus because they knew full well there was not an armed police force to stop them.

    They marched again on Saturday in the Charlottesville city limits because the U of VA does not fall under the jurisdiction of the city of Charlottesville.

    Many businesses have in their employee handbooks that questionable behavior while off duty also reflects badly on the company which can result in suspension, termination or both. This is why the folks ID’d on Twitter were fired as well they should be.

    If mayors of large cities are smart they will pass ordinances that ban open carry of weapons, loaded or unloaded within their city limits. There might be some who already have these ordinances on the books. Take away their ability to intimidate which is their prime modus operandus and you take away their reason for protesting.

  • Karl Crabkiller

    The Justice Dept.recently issued warrants asking anti-Trump websites to provide information on “ALL” persons who have visited the targeted sites. To me this seems a clear violation of several First Amendment principals but no doubt will be supported by some factions.

    • MikeB

      I wish this would get more attention. This is not a private business deciding what to put on their servers or who they employ. This is the federal government in action. It will also expose those who use this issue solely for politics rather than principle.

  • Jerry

    It’s always important to remember that any tactic you use can be used against you,

    • Jay T. Berken

      Remember the good ol’ days when someone from the representative Right and the Left would call the President of the opposition party a ‘nazi’…now people are openly embracing the term.

  • rosswilliams

    Telling someone to shut up is an exercise of free speech, not a restriction on it.

    The ACLU’s defends the First Amendment which protects speech from government scrutiny. I am not aware of them attempting to prevent private retaliation against speech, In that latter sense, we have never had free speech. People in power have always felt free to use that power to silence speech that threatens their interests or they disapprove of for other reasons.

    Of course people who lack power, who are often the targets of hate speech, have never had that ability. But trying to solve that imbalance by empowering government to police speech is dangerous. Because, ultimately, government serves those in power and will use that power on their behalf.

    Thus we have the first amendment. If you want to police speech, you need to figure out how to do it without engaging government.

  • KenB

    “Park says the ACLU’s unwavering support for free speech presumes that all radical views are equal.”

    No it doesn’t. It’s not a judgment about the content of the speech. The ACLU’s position on 1st Amendment speech and assembly protections has been consistent since at least 1977. See the SCOTUS decision on the Nazis’ march through Skokie IL, a heavily Jewish city. (https://en.wikipedia.org/wiki/National_Socialist_Party_of_America_v._Village_of_Skokie)

    As well, the ACLU is consistent with Justice William O. Douglas’s 1977 analysis of the 1st Amendment: “The First Amendment states that ‘Congress shall make no law . .. abridging the freedom of speech, or of the press.’ The word ‘no’ does not seem to be ambiguous, though many judges read the words ‘Congress shall make no law’ to mean ‘Congress may make some laws’.” (To remind people what SCOTUS also has ruled, he added, “Today … any discussion of the Speech and Press Clause of the First Amendment must proceed on the assumption that what is denied the Federal Government is likewise denied the States.'”) http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1590&context=jleg

    It took me a long time to really understand the Skokie decision 40 years ago. But I’ve always been with Douglas since I found his analysis sometime later.

  • lindblomeagles

    “Free Speech” and “Political Correctness” in the 21st Century was, and may be for a long time, CODE WORDS for “I want to be a bigot every second I get.” It was NEVER intended as a “polite discussion” about censorship or threatening ideals. Only the most liberal of the liberal, and the most conservative of the conservative, thought otherwise. Free Speech and Anti-PC defenders ALWAYS FORGET people are FALLIBLE. People often say things without foresight (see Twitter, Facebook, and a number of other social media sites, many of them operated by Donald Trump). If angry enough, the speech becomes conduct (see Germany during the reign of Adolf Hitler, radical Islam camps or websites, or visit some of the murderers in prison). Few people ever mean to do actual harm, but MANKIND IS FALLIBLE. Inevitably, even in a free society, standards have to be implemented and maintained, something every person calling themselves a journalist should already understand.