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By GENE POLICINSKI
First Amendment Center
So how “free” is free speech, really?
By law, under the First Amendment, speech is very free. Government can only stop us from speaking, or punish us for what we’ve said, under very limited circumstances.
Sometimes, those limits on free speech are pretty clear and generally agreed upon. For example, speech that is involved in a criminal act like extortion or blackmail finds no shelter in the First Amendment.
We can say confidently that child pornography has no free-speech protection, though the actual laws surrounding production, distribution and possession are based not on the repugnant idea of that material but in the belief that no child can be involved or exposed to such material without being harmed. But even here, the rise of “virtual” computer images in such repellent material gives rise to new questions – at least in the theoretical – of whether current laws apply since no actual child is involved.
Other areas involving freedom of speech are not so clear.
As a starting point, it’s important to note that there are no conditions or modifiers about free speech in the 45 words of the First Amendment.
Nothing about being nice, polite or sensible and nothing about prohibiting speech that is insulting, hateful or disgusting.
What the nation’s founders set out in creating the First Amendment’s protection for free speech, and its companion freedoms of press, religion, assembly and petition, was a place where people could express themselves freely and exchange views and information with others on important issues of the day — the so-called “marketplace of ideas.”
Philosophers and other great historical thinkers had been pondering that idea for centuries prior to the American Revolution.
English poet John Milton, in Areopagitica in 1644, posed a meeting place where “ All the winds of doctrine were let loose to play upon the earth, so Truth be in the field … Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”
A plain-spoken explanation of the concept: Everyone may set up a “stand” in this idea market and hawk our conceptual wares. No one is forced to buy what we’re selling, or even to listen. But through civil discourse, we’ll arrive at “truth.”
No fair preventing the “vendors” from being heard. It’s up to speakers to be convincing if they want shoppers – our fellow citizens – to agree. And, finally, speakers live with the consequences of our expression in the marketplace.
Let’s look at some recent examples of how free speech works – or doesn’t.
Retiring Ohio State president Gordon Gee has been pummeled for his bad humor last December about Catholics and priests at Notre Dame. He said June 4 that the incident was at least a small factor in his decision to retire. But clearly, many saw his speech – entirely within the law by the way – as a major impediment to Gee remaining a fully effective leader on campus. No prosecutor charged Gee with blasphemy after his remarks became public. But amid furious nationwide criticism, he decided to retire as university president.
President Obama and the First Lady both faced hecklers recently during public remarks. The President was interrupted repeatedly during the latter portion of a speech on counter-terrorism. According to a report by the online magazine Slate, after several interruptions, Obama got the last word: “The voice of that woman is worth paying attention to. Obviously, I do not agree with much of what she said. And obviously she wasn’t listening to me and much of what I said. But these are tough issues, and the suggestion that we can gloss over them is wrong.”
Days later, as Michelle Obama was addressing a Washington, D.C., fundraiser, a woman shouted support for lesbian rights. “One of the things I don’t do well is this,” the First Lady said, leaving the lecturn and facing the protester directly — saying the audience could “listen to me or you can take the mic, but I’m leaving. You all decide. You have one choice.” The protester was led away and the speech continued.
Shouting down or drowning out speakers is not an exercise in free speech. No ideas are exchanged when the speech from one party or group is simply designed to inhibit the speech of another.
Which brings us to a recent public program in Manchester, Tenn. An angry group continually shouted during remarks by U.S. Attorney for the Eastern District of Tennessee Bill Killian, who had come to speak about speech that might cross the line into criminal conduct.
The background to the meeting involved threats and violence against area Muslims in the past few years. But an incident at hand provoked intense emotions.
A cartoon posted on Facebook by a local public official showed a squinting man sighting along the top of a double-barrel shotgun, with a caption that it was “the only way to wink at a Muslim.”
Hateful and juvenile humor? Certainly. Protected — even if repugnant — speech? Probably.
Grounds for prosecution? Doubtful.
To be fair to U.S Attorney Killian, he duly noted at the outset: “Let me be clear, in this country, hateful speech is allowed. It is protected by the freedom of speech part of the First Amendment.
But if someone makes threats of violence, that is not protected speech and they will be prosecuted. Likewise, if someone commits acts of violence under the guise of religious or other speech, they will be prosecuted for their violent acts.”
Some in the audience are reported to have yelled “serpent” and “traitor” — but reporters present said the interruptions grew so loud and frequent that only portions of his remarks could be heard. The insults are protected by the First Amendment. But denying Killian or anyone else the right to speak and be heard, and tromping on the rights of others to hear him because you disagree, is just wrong.
Certainly the nation’s founders had brainpower in mind when protecting freedom of speech — not just lung-power.
Gene Policinski, senior vice president and executive director of the First Amendment Center and president and chief operating officer of the Diversity Institute, is a veteran journalist whose career has included work in newspapers, radio, television and online.