Freedom of Speech: What It Is, and Isn’t
There’s been a lot of talk lately about freedom of speech, and some confusion about what that really means. To begin with, let’s look at that relevant portion of the First Amendment: “Congress shall make no law . . . 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.” But there are logical restrictions on all our rights. The 2nd Amendment may give people access to guns, but they can’t own a tank or jet fighter. Here are some examples of speech or expression that is not protected:
— yelling “Fire!” in a crowded theater — obscenity
— defamation, libel, or slander — threatening the president
— blackmail — perjury
— plagiarism — child pornography
— conspiracy or treason — incitement to violence
I’ll be addressing that last one. The common legal standard is whether harm results from such expression. This is one of those thorns in a very thorny bush, as we’ll see. Who decides what constitutes harm? Mike Pence might think LGBTQ expression is harmful.
Looking back at the first word of the amendment, Congress shall make no law. That doesn’t mean that states, counties, and cities cannot, and so we now have the “free speech zone,” which to me is an obscenity. The first such designated area was at the 1988 Democratic National Convention. The courts have ruled that government may regulate “time, space, and manner — but not content” of speech and expression. That sounds like abridgement to me. If a group wants to protest, they have to get a permit, and sometimes post a bond as well. Huh. I always thought the First Amendment was the permit. Free speech zones and permits are justified as being necessary for public safety. Several states are working on anti-protest laws right now. When protest becomes criminalized, that too will be said to be for public safety. Authoritarians always use the same playbook.
Hate has a First Amendment right, as long as it doesn’t incite violence. In 1978 the ACLU represented a neo-Nazi group that wanted to march in Skokie, IL, where many Holocaust survivors lived. It raised quite a stir, but if free speech means anything, it has to be, if you’ll pardon the expression, free for all. When a speech by a right-wing extremist like Milo Yiannopoulos or Ann Coulter is cancelled at Berkeley, home of the free speech movement, something’s gone wrong. Something’s gone wrong on college campuses, too, when you have “trigger warnings” and “safe places” for tender young snowflakes who don’t wish to hear any challenging ideas. If that’s what they want, fine, but they should stay home and cower in their parent’s basements. As Salman Rushdie said: “A campus should be a place that’s safe for thought, not safe from it.”
While we may have freedom of speech, we are not free from the consequences of it. When 49ers QB Colin Kaepernick took a knee during the National Anthem last season, he was trying to bring awareness of racial injustice. But he got a lot of people’s panties in a twist, and now no NFL team will give him a chance. A similar fuss arose nearly 50 years ago at the 1968 Olympics in Mexico. Two American sprinters, John Carlos and Tommie Smith, stood on the podium during our National Anthem, heads bowed, raising a black-gloved fist into the air. Many people were outraged, and yet these athletes were making the same point as Kaepernick. Still, they were ostracized as unpatriotic or worse.
For expressing their free speech and freedom of the press, journalists critical to Trump have been trolled with death threats. Jewish reporters have received truly despicable GIFs of Jews during the Holocaust. One journalist who is epileptic twice received videos with the strobe frequency that causes seizures. So freedom of speech isn’t free at all. It can come with tremendous cost, and that’s another reason it must be protected.
This meme was unintentionally supercharged by Trump on Friday, Sep. 22nd, at one of his Nuremberg-style rallies in Alabama. As for players who take a knee during the anthem, he said “Get that son of a bitch off the field right now, out, you’re fired!” The following Sunday not only did hundreds of players lock arms or take a knee, several teams remained in their locker rooms until after the anthem. Even NFL team owners who were friends or contributors to his campaign, spoke against him and defended their teams. But the best response by far was by Kaepernick’s mother, Teresa. Yes, mother Teresa tweeted: “Guess that makes me one proud bitch!” What a sick burn from a great mom.
Here’s another thorn in the bramble bush. While you may have freedom of speech, do you also have the right not to be fired if your speech causes your employer business? Three instances from sportscaster ESPN have a common thread. In March of last year Mike Ditka, during an on-air broadcast, said that Barack Obama was the worst president in history, and that he’d likely be voting for Trump. He was fired. In 2015 former MLB pitcher Curt Schilling was suspended after posting a very offensive anti-transgender picture on his Twitter account. Months later he made another bigoted statement about Muslims, and was fired. Last month Jemele Hill, an African-American ESPN broadcaster, tweeted that Donald Trump is a white nationalist and a bigot. The White House called for her firing. ESPN knew the political incorrectness of replacing her with anyone but other black people, tried several, and all refused. So they just let it go, which I believe was the correct response. Note that both Schilling and Hill posted their thoughts privately, on their personal accounts. Apparently that’s no longer allowed in a “free” country, because we’ve become a nation of crybabies.
A comment often heard as to Kaepernick’s actions (and lately by other, mostly black, NFL players) is the same as that in regard to celebrities who make political statements during awards ceremonies: This is neither the time nor place for that kind of thing. Well, it’s precisely the time and place. When you’re making a political statement, you want it to be seen and heard by as many people as possible. That’s the whole point, isn’t it?
I want to return to Milo Yiannopoulos again, for an important point. He was part of what was going to be a four day “Freedom of Speech Week” beginning in late September. The organizers had invited famous Righties like Steve Bannon, Ann Coulter, and others, but it turned out they hadn’t even been asked. Then paperwork was sloppily handled and incomplete, so the school canceled. Milo said he’d be there anyway, there was a turnout big enough to fill a dodge van, but he went on about how UC Berkeley was trying to squelch free speech. Correspondence in the organization seems to imply they never intended to have the event, but were looking for an excuse to cry foul. This, and intentionally provoking anti-hate protesters into violence, are old tricks used by the original Nazis. Please, let’s not do that again. Don’t think it can’t happen here. That would be a huge mistake. The winning response was brilliantly shown in Boston, the week after the tragedy in Charlottesville, VA. A “free speech rally” by the alt-Reich got their permit, but for only 100, and no guns. Much less than that showed up, to be met by 40,000 peaceful protesters. That’s how you do it.
I understand that many people who see an athlete kneel during the anthem are deeply offended. They think it shows disrespect for the flag that so many fought and died for. But I don’t think that’s disrespectful to the flag. As Texas journalist Dale Hansen said, it really shows the best thing the flag represents. I rather like a country where you even have the freedom to burn the flag. Besides, kneeling is a form of honoring, of worship, of utmost respect. What I find lacking in respect is some guy in a Stars and Stripes swimsuit, with his junk right up against it. What deeply offends me is a no-nothing clown squatting in the White House (which he called a dump), insulting the Muslim family of a fallen G.I., insulting a U.S. Senator who was captured and tortured in Vietnam, mocking a disabled reporter, and embarrassing our country by his very presence. And because of the Constitution, I still have the right to say that, unless he and his kind are allowed to steal it.
I prefer someone who burns the flag and wraps himself in the Constitution, to someone who burns the Constitution and wraps himself in the flag.
— the late, great Molly Ivins