a citizen’s journal by Thomas Nephew

Thinking about free speech, bad speech, and more speech

Posted by Thomas Nephew on March 10th, 2012

A friend recently pointed out a piece by Jonathan Turley, “Free speech under fire,” and wrote, Don’t forget, the cure for offensive free speech is more free speech (discussion, debate, dialogue) — not suppression of free speech.”

I don’t disagree in the cases Turley describes — I think the judge got the case he leads with wrong.  (Well, for lack of legal training I guess I should rephrase: I hope the judge got this case wrong.)  An assault is an assault, it can’t be excused by claims (far-fetched ones at that) that the assault was a response to hate speech.  Likewise, I don’t support criminalizing Holocaust or genocide denial, as happens in Europe.

But I think my friend’s statement still begs many questions of what all counts as “suppression” of free speech.  Who is actually capable of it?  Are we talking about legislation and enforcement, or citizens’ and political groups own choices to condemn speech and boycott its supporters?  Does the word “suppression” encompass “discouragement” or “regulation”?  To cut to a couple of chases: “don’t be telling us not to ask people to boycott Rush Limbaugh or oppose Citizens United!  You’re suppressing our speech!” 🙂

I’m trying to make a friendly but serious point.   It needn’t be all we consider, but as a starting point, our First Amendment is in this respect strictly and (I think) rightly about government abridgment of free speech — “Congress shall make no law… abridging the freedom of speech. It’s not about the rest of us penalizing bad speech, or agitating that others do so; that’s arguably a great deal of the point of free speech.

Moreover, “freedom of speech” and “guaranteed, unregulated, unopposed amplification of speech” are not the same thing; that’s why the former is guaranteed, and the latter is not.  For example, Rush Limbaugh will always be free to say disgusting things about people he disagrees with, even if his radio program dies for lack of advertising — he’ll just be saying them to his drinking buddies at the Lowlife Saloon, not to a nationwide audience.  Likewise — and to recall an example where *my* ox was gored — the Dixie Chicks remain free to make new music and seek new audiences when their fan base got upset about Natalie Maines’s “ashamed of Bush” remark.  I think what happened to the Dixie Chicks was unjustified and even a demonstration of a “fascist impulse.” But I’m for free speech — not consequence-free speech; while a law against criticizing the president would not be fair game, the conservative listeners boycott of their music was.*

Turning to another example of often-offensive free speech, corporations and groups should be able to advertise on behalf of favored candidates — but it’s not “suppressive” to insist on spending limits or transparency.  By contrast, the Citizens United ruling is the very apotheosis of “more speech” — indeed, it’s “all but unlimited speech which no one has a prayer of adequately rebutting in the same volume” — as a supposed cure for the other guy’s speech.  But this particular “more speech cure” is a new and worse disease; true, I can write a blog post or upload a video rebutting some Super PAC lie — yet “more speech” rebutting “bad speech” — but the fifty people who see those rebuttals are a drop in the democratic bucket compared to the millions who see the TV ad or radio spot I’d be responding to.

This kind of issue — how to oppose offensive and/or  free speech — can be fraught even in relatively small-scale, local settings. For example, last fall a letter was circulated to Montgomery County, Maryland politicians asking them to sign a statement condemning an Islamophobic presentation at a local Republican women’s group.  Later on, a second letter requested that an Annapolis hotel not host a conference scheduling a number of Islamophobic speakers.

The first letter — elected officials signing a letter criticizing an event — arguably verged on government abridgement of free speech. But “verging on” and “being” are different things; since the letter merely found the Islamophobic event “inappropriate” and saying rhetoric of the kind “had no place in” the county.  This wasn’t attempted abridgement of free speech so much as free speech of their own.  The second letter was actually an easier case from my perspective: one group of private citizens asks another to reconsider a course of action.  Given the (insultingly overblown) fears this raised for the conference organizers, though, the letter resulted in a small police presence at the conference.  While not arguing against the right to draft and send the letter, a simple counterdemonstration or request to speak as well might have been a better choice of tactics.

In both cases, the group I was a part of took slightly different approaches to those of the lead organizers.  We worked with the circulator of the letter to stage an informational forum about the “Creeping Sharia” myth, and we joined in a counterdemonstration at the Annapolis hotel without signing the letter asking for the hotel to disinvite the convention.  I think those were good choices — but I don’t think drafting or signing either letter would have been beyond the pale, either.  Far from being suppressive of free speech, they were most properly understood as examples of precisely the “more free speech” — nothing more, nothing less — that my friend supports.

As do I.  What I’m saying is that we make it much too easy for ourselves by claiming a “free speech absolutist” mantle when it can’t possibly be true.  I don’t know where my friend stands on the Rush boycott or Citizens United, but the point is that sometimes whichever side one is on, someone’s speech is diminished — Limbaugh’s, or those encouraging a boycott; an Islamophobe’s, or those seeking to mobilize public opinion against him; corporations wanting to engage in unlimited, unregulated advertising, or people rightly feeling their own citizenship is rendered inconsequential by comparison.  In such cases, we must decide what we believe free speech is for, and whether that value is compelling enough for us to intervene.

There are other distinctions and issues to to be made in the two cases, e.g., a public figure trying to humiliate a private figure vs. a public renouncing a group who had sought the limelight; the possibility of monopolistic radio station collusion in the Dixie Chicks boycott; etcetera.  But for the purposes of discussing the right to object to their speech by penalizing their businesses, the broad similarities outweigh them.

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