What free speech isn’t

Ken White is an attorney specializing in free-speech issues, and is the main contributor to the well-known and useful law website Popehat. This week he has a good article in The Atlantic about American free-speech law, which you can read by clicking on the screenshot below:

We talk a lot about free speech on this website, as it’s an important issue in politics, especially on American college campuses. But “free speech” as construed by students often differs considerably from free speech as the courts have defined it under the First Amendment. White’s article aims to let us know what the law really is, not what it should be. As he says:

What speech should be protected by the First Amendment is open to debate. Americans can, and should, argue about what the law ought to be. That’s what free people do. But while we’re all entitled to our own opinions, we’re not entitled to our own facts, even in 2019. In fact, the First Amendment is broad, robust, aggressively and consistently protected by the Supreme Court, and not subject to the many exceptions and qualifications that commentators seek to graft upon it. The majority of contemptible, bigoted speech is protected.

If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment. Those tired tropes are barriers to serious discussions about free speech. Any useful discussion of what the law should be must be informed by an accurate view of what the law is.

I’ve been trying for years to point out these tropes, with mixed success. Because hope prevails over experience, I’m trying again. Here are some misstatements, misconceptions, and bad arguments about the First Amendment you will encounter regularly in American media. Watch for them, and recognize how they distort the debate over speech.

This is a very useful primer for anyone who wants to wade into this contentious area. I’ll just give the headers (in bold) for the misconceptions and muddy thinking he addresses, but to see why they are misconceptions, peruse the article: it’s a must-read.

“Not all speech is protected; there are exceptions to the First Amendment.”

“This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.”

“Incitement and threats are not free speech.”

“Fighting words are not free speech.”

“Hate speech is not free speech.”  

“Stochastic terrorism is not free speech.” White defines “stochastic terrorism” as “speech that, according to some advocates, whips up hatred against groups and leads unbalanced people to commit violence against them, even if it doesn’t explicitly call for violence. “

“We must balance free speech with [social good].” / “There is a line between free speech and [social evil].” 

JAC: Here I’ll put White’s take, as this is a very common misconception among Leftists:

It’s common, in free-speech debates, to find people arguing that America must balance free speech and safety, or free speech and the right to be free of abuse. A related rhetorical trope is “line drawing”: the idea that we must draw lines between free speech and abusive speech.

In point of fact, however, American courts don’t balance the benefits and harms of speech to decide whether it is protected—they look to whether that speech falls into the First Amendment exceptions noted above. As the Supreme Court recently explained, the “First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

A related trope is “This isn’t free speech; it’s [x],” where x is bullying, or abuse, or some other social evil. But many social evils are protected by the First Amendment. “This isn’t free speech; it’s [x]” is empty rhetoric unless x is one of the established First Amendment exceptions.

“They do it in Europe!”

“We talked to a professor and a litigator who said this is not protected speech.”

“This speech may be protected right now, but the law is always changing.”

102 Comments

  1. DW
    Posted August 26, 2019 at 12:18 pm | Permalink

    One thing that annoys me in all of these debates, and even this article falls into it:

    Free Speech is a principle.

    The 1st Amendment is one implementation of Free Speech on the government.

    I really despise how many people will demand that Free Speech is only in relation to the government.

    • EdwardM
      Posted August 26, 2019 at 12:27 pm | Permalink

      Huh? This article was talking about the 1st amendment. That IS “only in relation to the government”.

      Me no understand.

      • DW
        Posted August 26, 2019 at 2:29 pm | Permalink

        The title is literally “Don’t use these Free-Speech Arguments Ever Again”. The first paragraph ends “This has all led to more discussion about free speech and its limits”, then the article goes on to only talk about the first amendment. The implication that “free speech” is ONLY about the 1st Amendment.

        Free Speech is a broader concept than the 1st Amendment, and there seems to be many people that don’t understand that.

        • Posted August 26, 2019 at 2:36 pm | Permalink

          It’s clear from the outset that White is talking only about First Amendment construals of free speech, about which there are plenty of misconceptions. He’s also clear that there are discussions about free speech that overlap or are separate from the First Amendment. In other words, he makes it clear that his discussion is limited, so I’m not sure why you’re saying he missed something that he didn’t.

          From the piece:

          What speech should be protected by the First Amendment is open to debate. Americans can, and should, argue about what the law ought to be. That’s what free people do. But while we’re all entitled to our own opinions, we’re not entitled to our own facts, even in 2019. In fact, the First Amendment is broad, robust, aggressively and consistently protected by the Supreme Court, and not subject to the many exceptions and qualifications that commentators seek to graft upon it. The majority of contemptible, bigoted speech is protected.

          If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment. Those tired tropes are barriers to serious discussions about free speech. Any useful discussion of what the law should be must be informed by an accurate view of what the law is.

          • DW
            Posted August 26, 2019 at 2:52 pm | Permalink

            This article certainly isn’t the most egregious example of it. It does not make the affirmative case (“Muh private platform!”) against broader free speech to its credit. But the article begins with “free speech”, then shifts to only talk about the 1st amendment without acknowledging that the 1st is only a subset of the broader principle.

            By itself, it’s not a big deal. This is just something that has been irking me for a long time because I so often see the “Free speech only applies to government censorship” these days. Outsourcing censorship to massive multinational corporations is somehow not only become acceptable, but applauded by people who should be absolutely against the massive power that these corporations wield.

            • Posted August 26, 2019 at 2:55 pm | Permalink

              Well, you’ve made your feelings clear; no need to say the same thing over again. He’s talking about “free speech” vis-a-vis the First Amendment, and he makes that clear. So no, it’s not a big deal.

  2. Carl
    Posted August 26, 2019 at 12:19 pm | Permalink

    My confirmation bias is speaking, but I thought that was a great article. Thanks for the tip.

  3. EdwardM
    Posted August 26, 2019 at 12:25 pm | Permalink

    An excellent article. I liked the analogy to the venomous snake.

  4. ThyroidPlanet
    Posted August 26, 2019 at 12:29 pm | Permalink

    Sub

    • GBJames
      Posted August 26, 2019 at 12:39 pm | Permalink

      Ditto

      • rickflick
        Posted August 26, 2019 at 7:45 pm | Permalink

        I’ll see your ditto and raise you one dittoto.

  5. Posted August 26, 2019 at 12:41 pm | Permalink

    Excellent and important article. Thanks for sharing.

  6. Posted August 26, 2019 at 1:06 pm | Permalink

    I seem to recall an interesting distinction in a flag-burning prohibition case some years ago, where the court noted that political speech, including symbolic speech, was fully protected but conduct was not. The flag-burners got the green light as “symbolic speech” and therefore covered, but presumably if they had crossed over into conduct (perhaps burning in a public place where people passing might be injured?), they could have lost the case. (I’m definitely with the article on the idea that free speech protections should not wobble with the winds of generational preference, but I like that conduct distinction, which might correlate to the “true threat” standard the writer notes.)

    • DW
      Posted August 26, 2019 at 2:43 pm | Permalink

      My understanding is that the government cannot ban the speech, but can ban the action when they have reasonable cause to do so. For instance, if the government arrested someone for burning a flag in the middle of California wildfire zone, that would not be unconstitutional. You can’t burn anything in these areas because of the threat of wildfires. If you are arrested for doing so, you can’t claim that its an infringement on your freedom of speech.

      Another example would be making a molotov cocktail out of a flag. This is not as far-fetched as it sounds. On July 4th of this year, a rabid communist threw a burning flag on a uniformed secret service agent in front of the whitehouse.

      • EdwardM
        Posted August 26, 2019 at 2:59 pm | Permalink

        Yes. Those are crimes. The first is arson, the second attempted murder.

  7. Pablo
    Posted August 26, 2019 at 1:22 pm | Permalink

    I can’t get to the article. How many people posted that stupid XKCD cartoon in response?

    • Posted August 26, 2019 at 1:26 pm | Permalink

      “Stupid XKCD cartoon” is redundant.

      • Posted August 26, 2019 at 9:02 pm | Permalink

        I strongly disagree. XKCD is one of the most intelligent cartoons around.

    • Ken Kukec
      Posted August 26, 2019 at 2:17 pm | Permalink

      The Atlantic discontinued comments about a year and a half ago. It’s gone back to an old-fashioned letters-to-the-editor approach (albeit inviting them to be submitted via an email form).

      Dunno why anyone would be moved to post the XKCD cartoon in response to Ken White’s article. To do so would seem redundant, inasmuch as White’s piece deals exclusively with free speech under the First Amendment, which prohibits restriction on free speech only if imposed by the government.

    • Jim Swetnam
      Posted August 26, 2019 at 6:10 pm | Permalink

      I couldn’t find that xkcd cartoon you are referring to. But you really think xkcd is stupid? Wow! I’m tempted to wonder if you have a liberal arts background, vs science, because xkcd is very popular among my engineering and science cohort. We may be a self selected group for having a peculiar sense of humor. That’s nerds foe ya.

      • Posted August 26, 2019 at 8:07 pm | Permalink

        It would all be a matter of opinion. Mine is that ‘old xkcd’ was often good and sometimes great. ‘new xkcd’ is usually boring. Not that you asked me.

        • infiniteimprobabilit
          Posted August 27, 2019 at 6:16 am | Permalink

          He’s up to #2194 now. Kinda hard to keep being witty and original three times a week after that long…

          cr

      • Ken Kukec
        Posted August 26, 2019 at 8:44 pm | Permalink

        I’m guessing, this one, Jim:

        • Jim Swetnam
          Posted August 26, 2019 at 10:00 pm | Permalink

          Thanks Ken, Great cartoon. Sounds like a sane policy, even familiar, doesn’t it? Redundant, maybe even stupid? I don’t see it myself , the stupidity I mean, but I’m a Mpnte Python fan. Good humor has so many levels. OK. Maybe some of you just didn’t get the joke.

          Hell, maybe even I don’t think it’s that funny. But it’s a slice of life. ¿Que no?

          • Ken Kukec
            Posted August 27, 2019 at 11:09 am | Permalink

            That cartoon is redundant only in the sense that it addresses overtly what was the premise of White’s piece — that the First Amendment constrains only government conduct. I think the cartoon is good and accurate as far as it goes (although it doesn’t acknowledge that there are “free speech” interests beyond the First Amendment).

            I haven’t followed XKCD lately the way I did when it first came out, but back then I thought it was pretty goddamn thoughtful and funny.

        • AL
          Posted August 27, 2019 at 9:52 am | Permalink

          People who care about the accuracy of their worldview don’t like to exist in thought bunkers. I find that cartoon frequently popping up disingenuously in places as a defence against criticism of thought bunkerism.

        • ThyroidPlanet
          Posted August 28, 2019 at 4:32 pm | Permalink

          Two things get under my skin about Munroe here:

          1. Right to free speech also includes, as Hitchens argued, the right to hear free speech.

          2. An apparent false dilemma is set up : if Munroe can’t handle speech he’s hearing, it must be because the speaker is an asshole. If it is not a false dilemma then it’s not clear what it is.

    • ladyatheist
      Posted August 26, 2019 at 6:57 pm | Permalink

      I rather like that cartoon. Too many people think that free speech means they can say anything they want, anywhere they want, without consequences.

  8. Posted August 26, 2019 at 1:26 pm | Permalink

    The Regressive Left loves to reify inchoate concepts, and “Stochastic Terrorism” is another nonsense product of that predilection.

    It’s also a double-edged sword — for, if Donald Trump and the KKK are guilty of inspiring Patrick Crusius, then Elizabeth Warren and Greenpeace are just as guilty of inspiring Connor Betts.

    • eric
      Posted August 26, 2019 at 1:34 pm | Permalink

      I think there’s probably a grain of truth to the concept of “stochastic terrorism” (though I think that’s a terrible name for it). I’d say the recent uptick in white supremacist attacks and attempted attacks is related to Trump’s speech and tweets. However, as the article says, just because you know there’s a good chance some idiot will act on your words, and even if you intend for that to happen, it’s still protected by the 1st amendment since it doesn’t have the directness and immediacy needed to count as incitement.

      • Posted August 28, 2019 at 11:51 am | Permalink

        It is related to what is called the “doctrine of double effect”. However, the interesting thing to my mind in both of these cases is how one handles the “probabilistic” nature – how much increased probability is a concern?

        If me saying “Green jello sucks.” increases the chance that some loser is going to pin prick a green jello eater from 1e-9% to 1.1e-9%, is that “stochastic terrorism”, or at least “stochastic assault”? Should I care?

    • Carl
      Posted August 26, 2019 at 1:59 pm | Permalink

      “Stochastic” is a term from mathematics meaning random. A “stochastic process” is one that can be described with equations using random variables.

      I suppose Stochastic Terrorism models the population as containing some percentage of unstable people who will act out with violence if they hear certain dangerous things. Probably true, but who didn’t know that already? Restricting speech because it might trigger some nut is what Stochastic Terrorism means without the fancy words.

      • Posted August 26, 2019 at 2:23 pm | Permalink

        Exactly. Once on that road, it follows that we should censor anyone who says. “We’d be better off without President Trump,” “I wish President Obama were gone,” etc. Almost any criticism could trigger someone on the loony fringe. That’s exactly why we have the 1st Amendment — to prevent govt authorities from making just that argument to suppress speech.

        • EdwardM
          Posted August 26, 2019 at 2:39 pm | Permalink

          One could also point out that the Bible is filled with stochastic terrorism; “Thou shalt not suffer a witch to live”. Etc.

      • Ken Kukec
        Posted August 26, 2019 at 2:38 pm | Permalink

        No First Amendment doctrine has been geared to the effect speech might have on those most susceptible to incitement since SCOTUS adopted a “contemporary community standards” test for obscenity in a series of cases in the 1960s.

        The “stochastic terrorism” argument reminds me of the prosecutor’s summation at the obscenity trial of Lady Chatterley’s Lover in the UK, wherein he asked the jurors whether it was the type of book “you would wish your wife or servants to read.” 🙂

    • Jim Swetnam
      Posted August 26, 2019 at 7:04 pm | Permalink

      Hey, the world is filled with random lunatics who might at any moment open up with automatic weapons. Sounds stochastic to me, certainly in the sense of being unpredictable. This is the first time I’ve heard the term, but I like it as it is an elegant rephrasing of “random lunatics” the phrase I have been using. And I’d be as comfortable using it describe lethal left wing nut jobs as right wing. Lot more of the latter opening fire than the former I’d have to say. Connor Betts notwithstanding.

      But it goes back to the intentions of the presumed inciter or inspiration for the lunatic, doesn’t it? Isn’t that the argument here? To a reasonable person, who seems more likely to inspire violence in a susceptible person, Elizabeth Warren or Donald Trump? It seems bizarrely hyperbolic to conflate the two on this issue, sir.

      In the end I’d have to concede that so far Trump is probably within the law with all of his barely concealed incitements, as long as they are not grossly specific. I wonder, though, who will call him out if his words do cross that line. Will you sir? Do you know where that line is? I don’t, but I think it’s possible he may already have crossed it.

      • Jim Swetnam
        Posted August 27, 2019 at 11:18 pm | Permalink

        Oh! I misunderstood the intended definition of stochastic terrorism. I agree that that is a clumsy usage, as defined. I like my own definition better, as it makes more sense. It’s off point in thus discussion though. Sorry.

      • Posted August 30, 2019 at 1:16 pm | Permalink

        I wonder, though, who will call him out if his words do cross that line. Will you sir?

        I believe he came very close to crossing the line during the 2016 campaign when he suggested gun owners could stop Hillary Clinton from infringing on their 2nd Amendment rights.

        _

        Elizabeth Warren or Donald Trump? It seems bizarrely hyperbolic to conflate the two on this issue….

        Warren, with her incessant warbling about the ‘atrocity’ of ‘mamas and babies in cages’, and strident calls for class warfare, would easily qualify as an instigator of violence, were the demented rules of Stochastic Terrorism™ applied by the Regressive Left to their own.

        Plus, the fact of the matter remains that Connor Betts was in part inspired by Warren.

  9. Randall Schenck
    Posted August 26, 2019 at 1:48 pm | Permalink

    Support of free speech can also be a two-edged sword and used against democracy. While we are falling in love with free speech for all we need to be very careful of what we are saying. The dangers on social media are what I am referring to. Knowing that Facebook and Twitter posts allegedly from Black lives Matter groups saying not to vote for Clinton were actually being posted by white people in Russia, not Black people in Chicago. The same was true for posts telling Americans to vote for Jill Stein of the Green Party because Hillary is going to win anyway.

    Using Free Speech to destroy democracy is the new thing and the internet platforms are the tool.

    • EdwardM
      Posted August 26, 2019 at 2:03 pm | Permalink

      What are you suggesting? That the government ought to put restrictions on what can be posted online?

      You’re right that the interwebs is a nasty, toxic place filled with people who have bad intent. But I think this pretty much covers it;

      ” The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

      The SCOTUS (and I, as if that matters) feels that the potential for misuse and bad outcomes to allowing speech unfettered* by government action is outweighed by the cost such attempts have on our most important civil right.

      *with the few highly limited and misunderstood exceptions noted

      • Randall Schenck
        Posted August 26, 2019 at 2:20 pm | Permalink

        First of all, the constitution is far outdated to deal with cyber security and the internet. It is about as outdated and stupid as the 2nd amendment. Simply stating the lovely or patriotic love for free speech does not get to the problems associated with the cyber war we are fighting today. If we sit here and do nothing or very little we will soon have no democracy left to love. The idea of total freedom on the internet is insane and the Russians and other foreign governments are proving it every day.

        If you do not believe the Russian interference in our 2016 election was significant and likely made the difference, then I rest my case you should just keep going with your free speech.

        • EdwardM
          Posted August 26, 2019 at 2:35 pm | Permalink

          So I ask again, what are you suggesting? Near as I can tell the Russkies used privately owned media sources to do their dirty work. Those companies are free to restrict who uses their services and under what terms, but what are YOU suggesting the government should do?

          • Randall Schenck
            Posted August 26, 2019 at 3:08 pm | Permalink

            The govt. will have to step in and regulate the platforms on the internet because they will not regulate themselves. They even attempted to deny there was a problem for more than a year after the 2016 interference. The foreign actors are allowed to run free through the platforms and spread all the misinformation everywhere. They also do much of this with stolen and false IDs, pretending to be Americans while they run wild. The platforms do almost nothing because there is no money in regulating their business. There is lots of money in selling their service to Russia, China, N. Korea, Iran and others.

            By the way, other countries are regulating the hell out of Facebook and others, while we do nothing. And also by the way, Russia uses it’s government to do the work on the platforms. Read the Mueller report…. When you finish that, read The Fifth Domain, by Richard Clarke and Robert Knake.

            • EdwardM
              Posted August 26, 2019 at 3:19 pm | Permalink

              Thanks Randall. You actually mentioned something I think the government CAN do. You cited the fact that these characters sometimes commit crimes in order to do their nefarious deeds (identity theft is a crime everywhere) and THAT means the government has a remedy (of sorts) that doesn’t run afoul of the 1st.

              As for your idea of the govmint regulating private companies speech policies I think is the slipperiest of slopes. Still, one could imagine a situation where the government reminds companies like Facebook and Twitter that they are customers too (these companies often do work for or with governments, especially in distributed computing). As a powerful customer, the government can have a big influence on the companies policies -I see this as a potentially fruitful effort that (if done right) mightn’t run afoul of the 1st amendment

              • Randall Schenck
                Posted August 26, 2019 at 3:29 pm | Permalink

                It is also very likely the govt. will bust up these firms. They can do that too you know. Too much power leads to too much damage. It is called Anti-Trust.

                Warren came out for busting them up long ago.

              • tomh
                Posted August 26, 2019 at 6:10 pm | Permalink

                The government already regulates speech on broadcast networks, which I believe are private companies.

              • EdwardM
                Posted August 26, 2019 at 8:31 pm | Permalink

                tomh – for a nuanced understanding of just what, exactly, the government may do to regulate broadcast speech see;

                https://www.fcc.gov/consumers/guides/fcc-and-freedom-speech

                In essence, the FCC must walk a very fine line as it cannot violate the 1st amendment. The kind of regulations they impose are those allowed by SCOTUS and Mr White gave a good idea of those limits in the article we’re discussing.

                From the link above;

                “The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech.”

        • Posted August 30, 2019 at 1:21 pm | Permalink

          First of all, the constitution is far outdated to deal with cyber security and the internet. It is about as outdated and stupid as the 2nd amendment.

          It sounds like you’re saying we can ignore the Constitution, or parts thereof, at our discretion.

    • Carl
      Posted August 26, 2019 at 2:16 pm | Permalink

      The connection to free speech doesn’t seem relevant here, except in the sense that someone unable to speak couldn’t lie or commit fraud. It’s the lies and fraud you point out that are damaging democracy, not free speech.

      Lies and fraud have been with us always. The Jefferson campaign accused Adams of being a “hermaphrodite.” I do worry with you that the technology for spreading lies is so effective now.

      • Posted August 26, 2019 at 2:37 pm | Permalink

        Well-put (again), Carl. Laws against fraud and libel should be applied to virtual media as they have always been to print media. Although Randall is right that adapting the principle to new media requires a bit of technical finesse, I think he extends his point too broadly. There is no need to revisit the 1st Amendment on this. None on the “free speech” side are saying we should permit fraud and libel. We are just rejecting this new trend that says things that Dick or Jane find hurtful or misleading (i.e., out of sync with their political assumptions) should not have 1st Amendment protection.

      • Randall Schenck
        Posted August 26, 2019 at 2:38 pm | Permalink

        The unregulated condition of the platforms on the internet is all about free speech. Even other countries in Europe are beginning to deal with the damage but we are way behind. Free speech is great for Facebook and twitter and all the others. It is why they are so rich and getting more so every day. But the damage they are doing to people and democracy is large. The lie travels round the world on the internet in seconds and the truth – no one cares about that. There is no money in that.

    • Ken Kukec
      Posted August 26, 2019 at 2:59 pm | Permalink

      Social media platforms are private corporations and, thus, not subject to First Amendment free-speech requirements (which apply solely to governmental restrictions on speech).

      The extent to which the US government nonetheless can regulate these platforms to promote or restrict free speech is a contentious and unresolved issue, one that is the subject of a number of bills proposed in congress.

      • infiniteimprobabilit
        Posted August 27, 2019 at 6:32 am | Permalink

        Given that many of those platforms are international in extent, how does the *US* government have any standing in regulating them?

        Of course, governments can try to regulate the Internet within their borders, as China does, and Pakistan (and haven’t we heard from PCC on that topic? 😉

        But if there is to be any greater regulation, surely nobody has any legitimate standing except, possibly, the UN or similar organisation. (And yes I know exactly how popular that suggestion is going to be in some circles on the right – vbeg).

        But even within any country, it’s a tricky question. As you note, Ken.

        cr

    • eric
      Posted August 26, 2019 at 6:59 pm | Permalink

      There were con artists, snake oil salesmen, and demagogues loooong before the internet and social media existed. The founders were certainly aware of the abuses of speech; here’s Madison, from I believe the time of his presidency:

      “Our First Amendment freedoms give us the right to think what we like and say what we please. And if we the people are to govern ourselves, we must have these rights, even if they are misused by a minority.”

      And remember, that’s from the guy who originally didn’t want the amendments written!

      The internet is a big bullhorn. It’s unique in human history in terms of the size of the bullhorn and the ability of nearly everyone to use it, but the fact that liars use it to lie is not unique, not at all new, and IMO not any reason to give up our speech rights.

      • rickflick
        Posted August 27, 2019 at 11:23 am | Permalink

        Well said. And spoken freely.

  10. JezGrove
    Posted August 26, 2019 at 2:04 pm | Permalink

    The story behind the so-called “fighting words” exemption was very interesting.

    • Jim Swetnam
      Posted August 26, 2019 at 5:42 pm | Permalink

      In another matter I was looking up some legal definitions of assault. Perhaps some of the lawyers here will correct me, but I perceived that there is a distinction between someone calling you an asshole to your face, for instance, and someone getting in your face and angrily or threateningly saying it, which might be simple assault if you felt that your safety was endangered.

      I imagine that it might be hard to prove state of mind in the threatened, and intent to harm in the threatener, but I can certainly imagine that some “fighting words,” and some “hate speech” might be considered assault. I would say it depends on the circumstances, but it is certainly not a hard and fast rule to claim this is a misconception or muddy thinking.

  11. Roger Lambert
    Posted August 26, 2019 at 3:17 pm | Permalink

    I think the idea that free speech protections, derived from the 1st Amendment, are not only robust, but are robust because of the robust interpretation of the 1st Amendment by the Supreme Court is very important.

    In other words, what you want to be true about free speech is only true if the Supreme Court says it is true. What the Supreme Court say counts.

    Now, ask yourself if you feel the same way about the 2nd Amendment.

    • Carl
      Posted August 26, 2019 at 3:34 pm | Permalink

      I do think that. In general what the Supreme Court rules counts. And I like what it has ruled concerning the First and Second Amendments.

      However, it is completely reasonable to think the Court has decided wrongly on this or that issue. I would feel that way if it suddenly decided mandatory prayer in school was required (not even remotely likely) or that restrictions on abortion rights were permissible (remotely likely).

      • Posted August 26, 2019 at 3:36 pm | Permalink

        Then there’s Citizens United.

        • Carl
          Posted August 26, 2019 at 4:20 pm | Permalink

          I like the Citizen’s United decision – a robust reading of the First Amendment. Fortunately, we both agree it is the law even if we disagree on what should be the law.

          If you want a decision that is now almost uncontroversially considered wrong, use Dred Scott.

          • Posted August 26, 2019 at 4:45 pm | Permalink

            Robust? I doubt that this is what the authors of the First Amendment had in mind.

            • Carl
              Posted August 26, 2019 at 4:57 pm | Permalink

              They may not have had protection of blasphemy in mind either. Good thing it only matters what they wrote down, how it was understood at the time, and how it’s been interpreted by courts since.

              • Posted August 26, 2019 at 5:03 pm | Permalink

                So Citizens United is what you get by strict interpretation of their words? I don’t think so.

              • Carl
                Posted August 26, 2019 at 5:47 pm | Permalink

                Yes. The purpose of the constitution is to limit government, not to grant rights.


                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.

              • GBJames
                Posted August 26, 2019 at 5:57 pm | Permalink

                That’s simplistic nonsense, Carl. Those parts of the Constitution, like the 14th, that grant rights are no less Constitutional than parts limiting government.

          • Ken Kukec
            Posted August 26, 2019 at 4:54 pm | Permalink

            I think Dred Scott is a bit more than “uncontroversially considered wrong,” Carl; it was invalidated by the 13th Amendment.

            I think Korematsu v. US would be a better example of a case that has been uncontroversially considered wrong for well over half a century, even before it was abandoned expressly (albeit in dictum) in Trump v. Hawaii.

            • Carl
              Posted August 26, 2019 at 5:06 pm | Permalink

              The 13th Amendment doesn’t wipe out memory of the Dred Scott decision, but I agree the Korematsu case is a better example.

      • Roger Lambert
        Posted August 27, 2019 at 2:23 am | Permalink

        “However, it is completely reasonable to think the Court has decided wrongly on this or that issue.”

        At the heart of the article is the point that the people who think the 1st Amendment has been decided incorrectly, or the 1st is, or should be, open to their particular take on the matter are wrong because they are wrong – or more likely, ignorant – on the law itself.

        The author explains how various interpretations of the 1st are not valid, because they do not comport “with how the law is”. And that is because the law is not just the actual words of the 1st Amendment itself. The law is how those words have been interpreted over time in dozens of actual cases and tens of thousands of words used in SC and other court decisions.

        I brought up the 2nd, because in my experience the exact same phenomenon occurs – lots of people have (erroneous) opinions about the 2nd, based on how they feel the law should be, or their particular interpretation of the phraseology of the 2nd itself. But almost never do people base their opinions on what the law actually *is*.

        I spent a good chunk of time reading the actual case law on the 2nd, as well as reviews by Constitutional law experts. It was time well spent, interesting, and also surprising. I thought I was going to find that the last three SC gun cases were radical outliers. Definitely not what I found.

        Nowadays, what with wiki review articles and the hundreds of hyperlinks within them, one can get a informative basic education on any topic in a matter of days. What is amazing is how ill-informed even the literati are today compared to the nineteenth century. Of course, they had little else to do but read, and read they did.

        We have become a very binary culture. All is either good or bad, black or white. And the real world is mostly shades of gray.

    • Posted August 28, 2019 at 11:58 am | Permalink

      I am neither an American nor a lawyer, but I *do* think the courts are largely right about 1 and not about 2. But there is no problem with that – I just point out the mistakes in reasoning on 2 and indicate that I more or less find the arguments about 1 to be persuasive.

      Is the Constutition *merely* what the SC says it is? I don’t think so – since it can be changed. (This is a denial of a doctrine which I believe is called ‘legal positivism’.)

  12. Posted August 26, 2019 at 3:21 pm | Permalink

    I think the article is good as a general legal overview of the subject but I see one huge problem with it. While noting that the interpretation of the First Amendment and free speech has changed over the years, sometimes significantly, he seems to pretend that those challenging the current interpretation are tilting at windmills or ignoring the law. How does he think these interpretations change? Society changes and the courts are part of society.

    “The observation ‘The law changes all of the time’ is, then, like the observation ‘Not all speech is protected by the First Amendment’—a truism that is of no use in evaluating whether specific speech is protected or likely to become unprotected.”

    Ok but it does have a use in changing society and, eventually, changing the law. Politicians also know that loading the courts with people from their side of the aisle pushes change in the direction they want it to go.

    • eric
      Posted August 26, 2019 at 7:02 pm | Permalink

      I didn’t get that from the article. He spends quite a bit of ink pointing out that it’s perfectly fine that people argue over what the law ought to be. He just doesn’t want them confused about what it is when they do so.

      He even points out that lawyers, who often serve as advocates, often confuse the is from the ought as a ‘bad habit’ since they are paid to use forceful rhetoric in defense of a specific legal position.

      • Posted August 26, 2019 at 7:15 pm | Permalink

        My point is the arguing over what the law ought to be eventually ends up being the law. Sometimes it takes years and other times it happens quickly. And, of course, sometimes it doesn’t happen at all. The author seems to be saying that there’s discussion of what the law ought to be and then there’s the law and those are must be separated. I’m just saying they aren’t as separate as the author makes them out to be.

        • Jim Swetnam
          Posted August 26, 2019 at 7:25 pm | Permalink

          Nice point.

        • Roger Lambert
          Posted August 27, 2019 at 2:28 am | Permalink

          Yeah, but law has got that sticky issue of precedent. It takes a remarkably novel argument, or some very bad jurists, – or a big time majority of state legislatures (how many times has THAT happened?) – to overturn a Constitutional right.

        • infiniteimprobabilit
          Posted August 27, 2019 at 6:55 am | Permalink

          Agreed, Paul. There is no law (or Constitutional clause) so clear-cut that it cannot be reinterpreted, or exceptions found, to completely turn it on its head.

          Take, for example, the legalising of same-sex marriage, which was imposed by, shall we say, repurposing the equal-protection provisions of the 14th Amendment, originally enacted to prevent racial discrimination. In a different social climate, the SCOTUS could well have found that ‘equal protection’ was not violated if nobody, of whatever race or color, was ever permitted to marry someone of the same gender.

          To an outsider, it sometimes appears as if this concentration on the letter of the Constitution, unalterable and infallible, but re-interpretable, is as quaint (to be polite about it) as espousing the Ten Commandments. (‘Thou Shalt Not Kill’ – how’s that working out?)

          cr

  13. Daniel Quinlan
    Posted August 26, 2019 at 5:05 pm | Permalink

    I thought the article did not point out what the first amendment does not do. For instance, a person may be fired from their job for “free speech” that their employer doesn’t like. The government doesn’t protect free speech, so much as it cannot discriminate against free speech — at least not in a way that is easily detectible. A private person or corporation (is there a difference legally?) or private college may, however.

  14. Posted August 27, 2019 at 3:51 am | Permalink

    Thing that always gets me with “They do it in Europe” is that, well, how well has limiting free speech actually worked in Europe?

    We keep seeing ridiculous stories about British police contacting people for making un-PC tweets right? So Britain has these laws.

    And with these laws in place you have Brexit, and the ruling coalition including the terrorist-backed DUP. Britain’s hate speech laws have so utterly failed to deal with xenophobia amongst the populous, that the populous voted to get out of Europe largely because they didn’t like immigrants!

    • Richard
      Posted August 27, 2019 at 6:00 am | Permalink

      No, those of us who voted to leave the EU did so largely because we want the sovereignty of our nation back, rather being assimilated into a deliberately undemocratic European superstate whose stated goal is “ever-closer integration”. And we get rather tired of being told by supercilious, sneering Remainers over here that we are all uneducated, ignorant, xenophobic, racist bigots.

      I recently read an article by an English journalist living the USA in which she wrote that she got tired of repeatedly trying to explain to her American friends why the UK had voted to leave. Finally she asked them to imagine that the USA was part of a pan-Americas super-state in which the majority of their laws were made in Buenos Aires, and they were powerless to change them. The result was generally stunned silence.

      • Tom B
        Posted August 27, 2019 at 6:46 am | Permalink

        I find it disturbing that I have never heard your argument in favor of Brexit before. All reports seem to focus on the anti-immigrant angle.
        Thank you.

        • Richard
          Posted August 27, 2019 at 8:53 am | Permalink

          Oh, there are lots of reasons, not just that of sovereignty; e.g.

          1) not paying the EU large sums of money each year to fund vanity projects (like building an art gallery in Poland which no-one visits) or the ridiculous Brussels/Strasbourg merry-go-round (in which the entire EU parliament decamps from Brussels to Strasbourg for three days every month, at an annual cost of about 100 million euros);

          2) leaving the Common Fisheries Programme, which has devastated the British fishing fleet, and re-gaining control of our fishing grounds;

          3) leaving the Common Agricultural Policy, which subsidizes inefficient peasant farmers and results in absurdities such as the “grain mountain”, the “butter mountain” and the “wine lake”;

          4) being able to make our own trade deals with the rest of the world, instead of being handicapped by protectionist EU trade policies and tariffs;

          5) not being hampered by endless EU regulations and red tape, which all British businesses must obey even if they don’t (and the estimates for this are 90% or more) trade with the EU;

          6) leaving an organisation which is rife with corruption and waste;

          7) leaving an organisation which is fundamentally undemocratic – if I don’t like what the UK government in Westminster is doing, I can vote to change it – but the EU Parliament is merely a talking shop with no real power, and the EU is really run by the unelected bureaucrats of the European Commission;

          8) Oh, and there’s control of our borders again: being able to limit immigration to a level which the UK (which already has a housing shortage) can absorb.

          I could go on, but life is too short… 🙂

          But you will never see the BBC or Channel 4 discussing such reasons – instead, we were all too stupid and ignorant to know what we were voting for.

          • Posted August 27, 2019 at 10:05 am | Permalink

            I guess you and the UK are going to find out the arguments against Brexit in real life very soon. It will be “interesting” to see what opinions are after the fact. My guess is that the sovereignty and autonomy is not worth much but trade is pretty much everything. We’ll see.

            • Richard
              Posted August 27, 2019 at 11:43 am | Permalink

              “sovereignty and autonomy is not worth much”

              Are you a USAian, by any chance? If so, I wonder what your Founding Fathers would have thought of that.

              You should not place too much stock in the scare tactics, now reaching the point of hysteria, employed by ‘Project Fear’ over the last three years.

              They predicted that simply voting to leave, never mind actually leaving, would result in a collapse of the UK’s economy, a loss of 500,000 jobs, genocide and war, and even an outbreak of super-gonorrhoea (yes, they actually said that!). Instead, employment has increased by 800,000 to a record high, and the UK has received more inward investment over those three years than France and Germany combined. Some collapse!

              The Remainers would have us all believe that e.g. Dover-Calais freight traffic will come to a complete stand-still after Brexit; but, Jean-Marc Puissesseau, president of Port Boulogne Calais, says:

              “There are certain individuals in the UK who are whipping up this catastrophism for their own reasons. This has provoked a lot of concern but basically ‘c’est la bullsh**’. Nothing is going to happen the day after Brexit.”

              As for planes not being able to fly, our running out of food and medicines… Everything will carry on much as it did before.

              But I am in danger of monopolizing this thread, which is against Da Roolz, so I’ll shut up now.

              • Posted August 27, 2019 at 11:53 am | Permalink

                I should have guessed you would go off the rails at my comment. My mention of sovereignty and autonomy referred to the relatively small amount lost in EU membership, not as an absolute statement about the subject. As far as the US Constitution and its framers, they would have little concept of how the world has changed over the hundreds of years since they wrote it. IMHO, a certain amount of world governance is a good thing. Whatever boosts cultural and business ties, reduces the chances of wars and other kinds of conflicts. Immigration represents a challenge but is still a short-term pain for a long-term gain.

              • Richard
                Posted August 27, 2019 at 2:17 pm | Permalink

                Excuse me? How did I “go off the rails”? I simply pointed out that Americans once thought that sovereignty and autonomy were so important that they fought a war over the issue. Whereas the UK has simply voted in a democratic referendum for a peaceful separation from the EU, without a shot being fired.

                “the relatively small amount lost in EU membership”

                Really?

                https://eur-lex.europa.eu/legal-content/SK/TXT/?uri=LEGISSUM:l14548

                “According to the precedence principle, European law is superior to the national laws of Member States. The precedence principle applies to all European acts with a binding force. Therefore, Member States may not apply a national rule which contradicts to European law.”

                I’d say that is a massive loss of sovereignty, wouldn’t you? And it won’t end there: the EU is set on a path of “ever-closer integration” which will end with all member countries reduced to being provinces.

                AS for trade: see my point 4 above. Brexit is a marvelous opportunity for trade, not the negation of it:

                https://www.gov.uk/guidance/uk-trade-agreements-with-non-eu-countries-in-a-no-deal-brexit

                —-

                Apologies for posting once more. If our good host Jerry decides that I have posted too much then I will withdraw again.

          • rickflick
            Posted August 27, 2019 at 11:44 am | Permalink

            I just had to check out the wine lake. In 2005–2007 France (Bordeaux specifically) was producing far more wine than was being consumed. One solution was, and I guess still is, to convert excess into industrial alcohol. The government proposed taking large swaths of vines out of production, but that was hard to swallow. I’m not sure how the EU figured into the story.

            • Richard
              Posted August 27, 2019 at 1:56 pm | Permalink

              Because the EU subsidized the production of wine. Here’s an article from ‘The Wine Economist’ in 2007:

              https://wineeconomist.com/2007/12/24/draining-europes-wine-lake/

              “At the low end of the market, EU policies designed to support farm incomes have produced the famous “wine lake.” Each year the EU spends about $2 billion to buy up unsold wines and turn them into industrial alcohol. This vast reliable market for poor quality wine keeps thousands of small scale producers in business. The distillation subsidy insulates low-end producers from market forces with the result that the vineyards remain uneconomically small, the practices favor quantity over quality, and the wine, while it may reflect local tradition, finds few buyers in the marketplace.”

              • rickflick
                Posted August 27, 2019 at 5:41 pm | Permalink

                Supports are naturally going to disrupt markets. I suppose they can be useful at times, but shouldn’t be used if effects are completely unpredictable or obviously not beneficial. Undoubtedly the inertia of bureaucracy is a big factor in not being able to end them appropriately. We have massive farm subsidies in the US which, at least years ago, used to put huge amounts of excess wheat, soybeans, and cheese on the market. I remember as a college student being able to get free peanut butter and other foods free. Came in handy.

      • GBJames
        Posted August 27, 2019 at 7:15 am | Permalink

        I thought you guys voted for Brexit so the NHS would get all that extra money. That’s what the busses said!

      • Filippo
        Posted August 28, 2019 at 4:56 pm | Permalink

        ” . . . those of us who voted to leave the EU did so largely because we want the sovereignty of our nation back . . . .”

        Pat Condell has stated this clearly in his YT postings.

  15. Torbjörn Larsson
    Posted August 27, 2019 at 2:43 pm | Permalink

    Well, now we are getting somewhere! Americans are willing to define their idiosyncratic “free speech” as American. Sure, but don’t be surprised if that runs into problems, especially abroad.

    It’s common, in free-speech debates, to find people arguing that America must balance free speech and safety, or free speech and the right to be free of abuse.

    I gather from reading some rights experts that this is how we are to interpret human rights, balancing the rights against each other. Free speech may encroach on rights of privacy (a form of safety), and so compromises must be made.

    So are Americans 1st Amendment extremists!? I am asking, because I don’t know. Can US laws be amended as society change (as the “Amendments” were originally used for), for instance to incorporate UN Human Rights?

    • tomh
      Posted August 27, 2019 at 4:41 pm | Permalink

      Not until several generations die off, IMO.

    • Carl
      Posted August 27, 2019 at 5:13 pm | Permalink

      So are Americans 1st Amendment extremists!? I am asking, because I don’t know. …

      We are. We protect speech which many European countries ban, for example holocaust denial. The United States is a country where we can think what we like and say what we think without the government censoring us, with few exceptions.

      However, there are dissenters from this whose number at present doesn’t threaten a constitutional change.

      • tomh
        Posted August 27, 2019 at 5:53 pm | Permalink

        “The United States is a country where we can think what we like”

        What country prohibits you from thinking what you like?

        • GBJames
          Posted August 27, 2019 at 5:56 pm | Permalink

          North Korea?

          • tomh
            Posted August 27, 2019 at 7:20 pm | Permalink

            Really, thinking? They have mind readers there that can tell what you’re thinking? That’s a lot more advanced than the US, maybe that’s what Trump likes so much about them.

            • GBJames
              Posted August 27, 2019 at 8:51 pm | Permalink

              The desire and attempt to control doesn’t necessarily mean that the ability to detect exists.

        • Carl
          Posted August 27, 2019 at 10:40 pm | Permalink

          My original statement was a conjunction – you only quoted the first part. Why distort what I wrote?

        • Carl
          Posted August 27, 2019 at 11:28 pm | Permalink

          tomh, if you really have a serious question, I hope the author I borrowed the phrasing from (who borrowed it from Tacitus) can help you out:


          CHAPTER 20 Where it is shown that in a free state everyone is allowed to think what they wish and to say what they think

          Were it as easy to control people’s minds as to restrain their tongues, every sovereign would rule securely and there would be no oppressive governments. For all men would live according to the minds of those who govern them and would judge what is true or false, or good or bad, in accordance with their decree alone. But as we noted at the beginning of chapter 17, it is impossible for one person’s mind to be absolutely under another’s control. For no one can transfer to another person his natural right, or ability, to think freely and make his own judgments about any matter whatsoever, and cannot be compelled to do so. This is why a government which seeks to control people’s minds is considered oppressive, and any sovereign power appears to harm its subjects and usurp their rights when it tries to tell them what they must accept as true and reject as false and what beliefs should inspire their devotion to God. For these things are within each person’s own right, which he cannot give up even were he to wish to do so. …

          Spinoza. Spinoza: Theological-Political Treatise (Cambridge Texts in the History of Philosophy) (p. 250). Cambridge University Press.

          The chapter goes on at length promoting the core values that became liberalism in one of its earliest and best expressions.

    • rickflick
      Posted August 27, 2019 at 9:46 pm | Permalink

      Keep in mind, Torbjörn, that Americans are a pretty diverse assortment. In particular there is currently a divide between conservatives (Trumpites) and liberals. In addition free-speech is taught in all high schools, but by teachers from every region and all ethnic and social forms across this wide country. North-South, Coastal-interior. Definitions vary.


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