Free Speech: An American Idea

Stephen H. Unger
September 19, 2012

Why Should We Care About Free Speech?

A basic argument for protection of the right to free expression is that restrictions on what we are allowed to say or write would constitute an onerous intrusion in our personal lives. This, in itself, might be considered adequate justification for a strong interpretation of the First Amendment. But there is an even more powerful argument.

In the absence of infallible people, we have no really effective way of approaching truth or, alternatively, recognizing error, in any area of human activity, other than by exposing our ideas to the criticism of others, and carefully considering those criticisms. This process is fundamental to progress in science, and in every other area of human activity, including social and political matters. For this reason, freedom of expression is an essential component of democracy. The classic defense of free expression is the first two sections of John Stuart Mill's lucid, indispensable, essay, "On Liberty" [Mill].

Attacks on freedom of expression come from several very different directions. One major group of assailants comprises those seeking to establish, or maintain, dictatorial control of their countries. Obvious examples were Nazis, and Fascists, and the rulers of Czarist and Communist Russia. Myanmar (Burma), Kazakhstan, and Saudi Arabia are contemporary instances of countries currently regarded as being far from democratic, and where is little pretense that free speech exists.

There are also political leaders and government officials in countries, such as the US, purporting to be democracies, who seek to suppress free speech in order to conceal corrupt practices, and other embarrassing behavior. A common technique employed for this purpose is to invoke "national security" considerations as a pretext for suppressing the free flow of information [unger].

Others uncomfortable with free expression are people who are deeply offended by public criticisms of their religious beliefs. Still others, perhaps the largest group, fear that expression of bigoted notions about members of various groups would hurt their feelings, and might promote hostility toward them.

Hate Speech

In recent years, Western European democracies, and Canada, have enacted legislation banning "hate speech" [Liptak][Greenwald]. This is defined typically as, "publicly making statements by which a group is threatened, insulted or degraded due to race, skin color, national or ethnic origin, faith or sexual orientation." (This is the Danish version.) Truth is not an acceptable defense.

The law was invoked not long ago in Denmark to convict Jesper Langballe, a right-wing member of the Folketing (parliament), who, in a newspaper column, made statements about honor killings and other abuses of Muslim women. He was fined about $1000 (the maximum sentence under the law is 2 years imprisonment.) In France, actress Brigitte Bardot, an animal rights activist, was fined $23,000, for criticizing a Muslim ceremony involving the slaughter of sheep [Maines]. (Almost all the European hate crime cases I have found involve Muslim targets.)

More generally, the European Court of Human Rights recently ruled that free speech protection does not extend to "concrete words constituting hate speech that might be offensive to individuals or groups." [Lopas]

Free expression advocates believe that outlawing hate speech, in addition to opening the door to widespread censorship, it is not an effective way to respond to bigotry [Mchangama]. A principal effect would likely be to allow bigots to play the role of heroes persecuted by a dictatorial government. The appropriate response to a nasty, or false, statement is a valid rebuttal. Where such rants have been widely disseminated, and might have significant effects, appropriate organizations can mount educational campaigns to counter them.

Laws against holocaust denial are of a similar nature. About 17 nations have such laws. These include Austria, Belgium, Canada,, France, Germany, Hungary, and Switzerland, but not the UK or any of the Nordic countries. As an example, David Irving, a right wing British author of history books, was convicted of this crime in Austria, in 2005, and served 13 months of a 3 year prison sentence.

Since such laws would obviously violate the First Amendment, they do not exist in the US. More generally, expressions of opinion are not subject to legal sanctions in the US, where hurt feelings are not considered adequate legal grounds for restricting speech.

Libel

In the realm of civil law, the US is similarly ahead of the UK, and probably many, if not all, other countries, in that truth is an absolute defense in a libel suit. An example of the use of libel laws in the UK is the successful civil libel suit against the authors of an article criticizing McDonald's Restaurants on a variety of grounds, including selling unhealthy food and mistreating its employees [Wikipedia-Mclib]. The company was awarded damages of 40,000 pounds. (In response to widespread public outrage over this affair, McDonald's decided not to collect the damages.)

Official Secrets

In the UK, under The Official Secrets Act, a government employee who discloses material that has been ruled as secret, for any reason, by the government, is subject to criminal penalties [TalkTalk]. Furthermore, a journalist who reports on such material is also subject to prosecution. Arguments that the material in question has already been published, or that the release and/or publication is in the public interest are not acceptable defenses.

There are similar laws in almost every country--except the US, where the First Amendment protects journalists, or others, who publish material of this type. However, there have been times when this was not the case. The 1917 Espionage Act was used on a large scale to prosecute people for such acts as making speeches calling for the US to end its participation in the ongoing war (WW I), or arguing that the draft was unconstitutional [Wikipedia-Esp]. Socialist Party leader and presidential candidate Eugene Debs, was sentenced to 10 years imprisonment for a speech condemning the war.

These events prompted the formation, in 1917, of the Civil Liberties Bureau, which, in 1920, was renamed The American Civil Liberties Union (ACLU). As a result of lawsuits brought by the ACLU, Supreme Court decisions, starting in the 1920's, greatly strengthened First Amendment protection for journalists and news media. The Pentagon Papers case made it clear that simply classifying a document as secret is not enough to justify outlawing its publication [Wikipedia-Pent].

However, in recent years, the Obama Administration has been making heavy use of the Espionage Act to prosecute government employees who reveal "secrets" embarrassing to the government [Carr]. Furthermore, they have started going after individuals, or organizations such as WikiLeaks, who publish material provided by government whistle-blowers. There are strong indications, tho no solid proof, that the Justice Department has obtained a sealed indictment of WikiLeaks' Julian Assange for violating the Espionage Act.

Obscenity

Another area in which statements have been censored, or sometimes even criminalized, despite being unrelated to any action, is obscenity. Justification for such restrictive laws is similar to that for hate laws; profanity offends people.

The 1873 federal Comstock laws [Wikipedia-Com] banned the mailing of textual, pictorial, and any other material deemed to be obscene. The maximum penalty was 5 years imprisonment at hard labor. Twenty four states passed similar legislation.

A principal target of these laws was the birth control movement. The shipment of contraceptive devices of all types, as well as written material pertaining to birth control, and sex education in general, was thereby outlawed. The mailing of certain anatomy textbooks to medical students was barred.

Over a period of a century, the scope of these laws was whittled down by Supreme Court decisions based on the First Amendment, with the ACLU playing a leading role. Altho the federal law has not actually been repealed, it has largely been nullified, as have the various state laws.

A fundamental problem with such laws is that of defining what constitutes obscenity. The nearest to a legal definition is the Miller test, developed in the 1973 Supreme Court case Miller v. California. A work is to be considered legally obscene if all 3 of the following conditions are satisfied:

  1. Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest.
  2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law.
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Obviously this is a very fuzzy definition, even apart from the fact that it explicitly refers to "applicable state law", meaning that the definition varies from state-to-state, as well as over time. The effect of obscenity laws and regulations on the exercise of civil liberties has diminished, as a result of various court decisions, to more of a nuisance than a major threat. The situation is not much different in most other industrialized nations.

What is Meant by Freedom of Expression?

The First Amendment provision against "abridging the freedom of speech, or of the press" is the foundation of protection of free expression in the US. Its interpretation by the courts has evolved over the years, and I will discuss only what I believe are the fundamental aspects. The basic idea is that there should be no content-based legal impediments to the expression of our opinions, thoughts and feelings.

But there can be constraints arising other from other considerations. For example, one could not reasonably claim the right to operate a loudspeaker, after midnite, in a quiet residential neighborhood, regardless of the subject matter of the speech. More problematic is the issue of unsolicited political phone calls, particularly robotic calls. This is a difficult, as yet unresolved, issue.

Handing out leaflets on a public street is generally considered an important enough political activity to justify the relatively minor nuisance effect. But, along with such activities as picketing, and door-to-door soliciting, this is a complex legal matter [FindLaw]. One key consideration is that the contents of a non-commercial message not be used as legal grounds for restricting distribution.

Commercial speech is quite another matter. Unsolicited phone calls offering products for sale can be legally banned without conflict with the First Amendment. An offer to sell someone the Brooklyn Bridge is not an instance of protected free speech. Nor is a cigarette ad, or a deceptive advertisement of a pharmaceutical product.

Utterances such as, "Hand over your wallet or I'll cut your throat", are also not protected. But, a statement such as, "doctors who perform abortions ought to be killed", or even, "Abortion doctor Smith ought to be killed", fall under the heading of expressions of opinion, which constitute protected speech. However, pointing across the street to Dr. Smith and calling out to a crowd, "Kill that baby murderer!", is an instance of incitement to imminent violence, clearly grounds for criminal prosecution.

What About Corporations and Money?

A very important, thorny, issue raised by the Supreme Court decision in the Citizens United case [Wikipedia-Cit] is whether contributions to election campaign funds by labor unions, non-profit corporations, and for-profit corporations should be treated as a form of expression protected by the First Amendment. Along with the thorny issue of general regulation of contributions to election campaign funds, this is a matter on which there is no consensus among civil libertarians. Rather than double the length of this essay, I plan to treat these problems in a future essay

Who Cares About Free Speech?

Everybody is in favor of allowing the free expression of ideas that they sympathize with, or, at least do not consider harmful. Real advocates of civil liberties oppose suppression even of ideas that they consider most abhorrent. They believe that the proper response to such speech is counterargument.

An excellent example of this attitude was the 1970's Skokie, Illinois case [ACLU]. A group of American Nazis planned to march in uniform, complete with swastikas, thru a street in a town with a substantial Jewish population. An injunction was issued to prohibit the march in order to spare the feelings of the residents, particularly the many holocaust survivors include among them. The ACLU, on First Amendment grounds, succeeded in getting the injunction overturned by the Supreme Court. This victory cost the ACLU some 30,000 members, but is considered to be a landmark case defining the organization's principles.

The flourishing of free speech in the US is due to the fact that it is one of the few political principles that is supported by substantial numbers of Americans who agree on very little else [Malik]. It is also true that that efforts to suppress free speech for various reasons have been made by people with very diverse political views. Fortunately, the supporters have, thus far, prevailed.

References

ACLU>, "ACLU History", ACLU

David Carr, "Blurred Line Between Espionage and Truth", NY Times, February 26, 2012

FindLaw, "Speech Plus--The Constitutional Law of Leafleting, Picketing, and Demonstration", FindLaw

Glenn Greenwald, "The creepy tyranny of Canada's hate speech laws", salon.com, Mar 22, 2010

Adam Liptak, "Hate speech or free speech? What much of West bans is protected in U.S.", NY Times, June 11, 2008

Matthew Lopas, "European Court Upholds LGBT Provisions of Swedish Hate-Speech Law", hrbrief.org, May 18, 2012

Patrick Maines, "Some People 'Get It.'", Media Institute, July 7, 2008

Kenan Malik, "Why Hate Speech Should Not Be Banned", Pandaemonium, April 19, 2012

Jacob Mchangama, "Censorship as 'Tolerance'", National Review on Line, July 19, 2010

John Stuart Mill, "On Liberty", Bartleby.com, 1869

TalkTalk, "Official Secrets Act", TalkTalk

Stephen H. Unger, "Governmental Secrecy: Shield for Tyranny, Incompetence, and Corruption", Ends and Means, September 14, 2011

Wikipedia-Cit, "Citizens United v. Federal Election Commission", Wikipedia

Wikipedia-Com, "Comstock laws", Wikipedia

Wikipedia-Esp, "Espionage Act of 1917", Wikipedia

Wikipedia-Pent, "Pentagon Papers", Wikipedia

Wikipedia-Mclib, "McLibel case", Wikipedia


Comments are welcomed and can be sent to me at unger(at)cs(dot)columbia(dot)edu

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