This morning after reading over last night's posting, I realized there was an additional comment that I should make. Regardless of the vileness of someone's speech, the very act of restricting that speech is damaging to all of our speech rights. We cannot have a free society when we limit someone else's speech. This has to be the premise that the decision in Dearborn has to be made. If not, all of our free speech rights will be impacted.
The problem of limiting speech is that we do not know whom is the "all-knowing arbiter" of what is and what is not right. What is disgusting and degrading to me, might be just your way of talking. What causes me discomfort, could be normal for you. No two people look at the world through the same prism. Our experiences, upbringing, and view of the world, colors how we interpret things. Therefore, it is imperative that few limits (yelling fire in a crowded theatre, for example) should be placed on our freedom.
I believe the Skokie, Illinois issue mentioned last night is a great example of how free speech rights must be granted even to the most disgusting of our fellow citizens. The last thing the Jewish population wanted was a Nazi Party parade down the very streets of their town. However, the Nazis had the right to express their opinions, using their free speech rights. Although I detest the Nazis and everything they stand for, I will stand by them and their right to express their ideas until my dying breath. You see, if I do not, my own rights to say and yes to blog my opinion, very possibly could be impacted. Someone might not like what I said or wrote and would want me banned, fined, imprisoned or worse. Where would have my rights gone?
There is an old joke in Russia. It goes like this. An American and Russian are speaking about their relative freedoms in each country. The American brags about his right to go to the White House and call the President all sorts of names, asserts that his mother and father were not married and nothing will happen to him. The Russian says that he has the same rights. He can go to the Politburo and call the President of the United States all sorts of names and assert that his mother and father were not married and he will be given a medal.
Although the Russian said he had the same right as we do in the United States, he did not. If you talk to Russian emigres you will hear stories about the fear of saying the wrong thing to the wrong person. The fear of speaking your mind for the retribution would be great. I do not want that to happen here.
The freedom of speech is one of the bedrocks of the United States. Should we lose it, have it minimized in any way, how long will it be before the other freedoms will be lost?
So getting back to Dearborn. Although Reverend Jones does not speak for me (nor I for him), I believe that he has the right to speak there. I do not think that he should have to post any "peace bond" to cover the cost of any riots that might occur for I doubt that he will start the riot.
As far as the Muslim population goes, my advice would be to ignore the Reverend. He speech will not endanger your rights as American citizens to worship as you wish. Ignore him, don't give him an audience, go about your daily business as if he did not exist. Any attention given him will only encourage him.
The City of Dearborn should be on call but should keep a low key. The more attention you give both sides of this tinderbox will not be positive. Have the police available to step in, but only to act if violence occurs. Hold both sides equally responsible for any damage that does occur.
However, my prognostication is that today the Court in Dearborn will tell the Reverend that he must post a bond before speaking, the Reverend will say no, tomorrow he will speak in front of the Islamic Center and will be arrested for speaking without a permit. When he is released several hours later after posting bail, I am afraid that Muslims will take to the street and demand severe punishment for his disrespect to their religion.
I sincerely hope that everyone will follow my "sage" advice, however, I am not hopeful. If they do it will be a victory for freedom of speech, if not, we all will lose.
The problem of limiting speech is that we do not know whom is the "all-knowing arbiter" of what is and what is not right. What is disgusting and degrading to me, might be just your way of talking. What causes me discomfort, could be normal for you. No two people look at the world through the same prism. Our experiences, upbringing, and view of the world, colors how we interpret things. Therefore, it is imperative that few limits (yelling fire in a crowded theatre, for example) should be placed on our freedom.
I believe the Skokie, Illinois issue mentioned last night is a great example of how free speech rights must be granted even to the most disgusting of our fellow citizens. The last thing the Jewish population wanted was a Nazi Party parade down the very streets of their town. However, the Nazis had the right to express their opinions, using their free speech rights. Although I detest the Nazis and everything they stand for, I will stand by them and their right to express their ideas until my dying breath. You see, if I do not, my own rights to say and yes to blog my opinion, very possibly could be impacted. Someone might not like what I said or wrote and would want me banned, fined, imprisoned or worse. Where would have my rights gone?
There is an old joke in Russia. It goes like this. An American and Russian are speaking about their relative freedoms in each country. The American brags about his right to go to the White House and call the President all sorts of names, asserts that his mother and father were not married and nothing will happen to him. The Russian says that he has the same rights. He can go to the Politburo and call the President of the United States all sorts of names and assert that his mother and father were not married and he will be given a medal.
Although the Russian said he had the same right as we do in the United States, he did not. If you talk to Russian emigres you will hear stories about the fear of saying the wrong thing to the wrong person. The fear of speaking your mind for the retribution would be great. I do not want that to happen here.
The freedom of speech is one of the bedrocks of the United States. Should we lose it, have it minimized in any way, how long will it be before the other freedoms will be lost?
So getting back to Dearborn. Although Reverend Jones does not speak for me (nor I for him), I believe that he has the right to speak there. I do not think that he should have to post any "peace bond" to cover the cost of any riots that might occur for I doubt that he will start the riot.
As far as the Muslim population goes, my advice would be to ignore the Reverend. He speech will not endanger your rights as American citizens to worship as you wish. Ignore him, don't give him an audience, go about your daily business as if he did not exist. Any attention given him will only encourage him.
The City of Dearborn should be on call but should keep a low key. The more attention you give both sides of this tinderbox will not be positive. Have the police available to step in, but only to act if violence occurs. Hold both sides equally responsible for any damage that does occur.
However, my prognostication is that today the Court in Dearborn will tell the Reverend that he must post a bond before speaking, the Reverend will say no, tomorrow he will speak in front of the Islamic Center and will be arrested for speaking without a permit. When he is released several hours later after posting bail, I am afraid that Muslims will take to the street and demand severe punishment for his disrespect to their religion.
I sincerely hope that everyone will follow my "sage" advice, however, I am not hopeful. If they do it will be a victory for freedom of speech, if not, we all will lose.
What is your opinion on the Snyder v. Phelps Supreme Court case? Basically, I agree with the federal court's findings in the case, and disagree with the Supreme Court. The lower courts made a distinction between the protest signs that talk about general groups vs. those that said "you" (reasonably meaning Snyder and his family).
ReplyDelete--David
The Phelps people are dispicable, low-down, slime (now that I have that out of my system), however, the first amendment was not written to protect what everyone agrees upon. It was written to protect the unpopular, the heretical, the "flat earth" believers. You must remember where the authors of the Constitution were coming from. They were the very people who were the enemy of the Crown, the ones whose speech was limited and those who could have been tried for treason for what they said.
ReplyDeleteWith this framework in mind,you can see why they wrote the First Amendment. They did not want those whose opinions were different from the mainstream to be limited.
The Snyder case and the one in Dearborn are similar in that the person whose speech is being violated is not a person we might want to go to dinner or associate with. However, in neither case did this person create a danger to anyone and was seeking only to express his opinon. I think in both cases, their rights of free expression were violated.
In regard to your question regarding the lower courts cut-out on expression. I disagree with it. Expression whether written or verbal (unless it causes immediate harm to others e.g. screaming fire in a theatre) has to be protected regardless how distasteful we might regard it.
The lower courts ruled that some of the signs were protected by the First Amendment but others were not. A sign like "Death to Fags" is protected. I agree with that. A sign with the word "you" and reasonably directed specifically at Snyder himself arguably moves into the unprotected area of the law -- speech that causes severe emotional and psychological harm. Are you saying only speech that risks immediate physical harm (screaming fire in theatre) should be the only category of speech that is unprotected? How about bullies at school who verbally torment gays? I think there was a gay college student awhile back who was "outed" and then incessantly verbally harassed by other students. He committed suicide. Is that protected speech? The school administrators should not intervene?
ReplyDelete--David
Here you go. This is a quote from Justice Alito's dissent in Snyder v. Phelps. He says it better than I could:
ReplyDelete"This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”). When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery."
--David
David, first of all thank you for your thoughtful comment, this is exactly what this blog is all about.
ReplyDeleteMy comment to your first post is that in my opinion, only immediate threat of danger should be the limitation on speech. Once we start slicing and dicing our speech right, we will end up with nothing because there will always be someone who can construct an argument where the right should not exist.
As far as gay rights, I feel sorry for someone who is outed or tormented by other students, but does this not fall under the immediate danger?
I feel sorry for the Snyder family and cannot imagine the horror they faced with the loss of their son and to have these jack asses protesting at his funeral, is terrible. However, the other side of the argument has two points going against them in their court case. First, the family was not threatened as the Phelps family was 1000 feet away and did not come anywhere near the family. The Snyder family did not even see the protestors at the funeral and were only made aware of their protests on the evening news after the funeral. Again, I strongly disagree with the protests at funerals and think it is horrible and cannot understand the rationale of the Phelps family. But, I still believe they have the right to protest.
Regarding your second post, I do not agree with Alito, yes, conservatives can disagree with other conservatives!! If I am ever asked to choose between a right or making concessions on the right, I will always go to protect the right.
Alito says, words can hurt. I would agree with that however, whose words should be superior? Are words like, Kike, Wop, herm, sand "n" and the N word hurtful. Yes but does that mean they cannot be uttered? So where do we end the list of words that cannot be said? Who is the arbiter? Is fat, a hateful word? How about dumb blonde? Where does it stop?
Anytime we start dicing up a right, we get into this round robin of questions to which there is no answer. For this reason, I have to stay with the most strict description of rights.
Thanks again for your comments and I hope others will comment.
I'll start where you end. You say, "For this reason, I have to stay with the most strict description of rights." That is not where you are. The most strict description of the free speech would hold that it is an absolute right that trumps all other fundamental rights with no exceptions. You, Alito, and I agree that free speech is not an absolute right. We only differ from you in where we draw the boundary.
ReplyDeleteLet me clarify. One does not cross the line from protected speech to unprotected speech simply by uttering hurtful words. Intent and broader contexts matter. There must be intentional infliction of grave injury by an utterance and the utterance has, as Alito says, little to zero compensatory redeeming social value as a step toward truth in public discourse (the constitutional objective in protecting free speech). Who decides? Ultimately, legislatures and courts decide the scope free speech under the First Amendment. The rest of us just have opinions.
From your example of yelling fire in the crowded theater, I take it that you consider all speech protected unless it risks immediate physical injury to somebody. This narrow interpretation does, indeed, allow intentional infliction of emotional and psychological pain on other human beings for no other purpose. This not only includes cases such as Snyder's, but also actions which are illegal in all 50 states, such as extreme sexual harassment in the workplace, libelous speech, child pornography, and so forth. Justice Alito and I do not believe the First Amendment was ever intended to legally shield these sorts of "speech."
--David
David, I would agree that I believe in a narrow definition of the exceptions to freedom of speech. I would not agree that all intentional infliction of emotional and psychological pain is automatically an exception. Of course, child porn which is illegal due to the fact the child cannot give consent is not a freedom of speech issue.
ReplyDeleteThe other examples you give of exceptions (sexual harrassment and libelous speech)to the freedom of speech are very dependent upon the facts of the case. However, only in the most extreme cases should it limit freedom of speech. Too often these type of cases are not free speech cases, but become that due to legal moves.
I reiterate, the Phelps case was intentional hate but they still have the right to express their case. I know I hate it, but that is the real definition of free speech.
tom
You say, "I would not agree that all intentional infliction of emotional and psychological pain is automatically an exception." Agreed. It is not automatic. As Alito says, it must be balanced against whatever social value the speech may have. The speech crosses the line when it serves no purpose except its intended purpose to inflict emotional or psychological pain on the specific individual to whom it is directed. Even in that case, do you consider it protected?
ReplyDeleteI included child pornography as an action that is protected speech, if one adopts the narrow interpretation that all speech is protected that does not risk immediate physical injury to somebody (i.e., your yelling fire in theatre standard). By that narrow standard, child pornography is protected to the extent that it can be produced without inflicting physical injury to the child. To say that no person can be involved in a free speech act without their consent, introduces an entirely different boundary condition than causing physical injury. So I guess you are prepared to add this piece of "slicing and dicing" of the right also.
You say, "The other examples you give of exceptions (sexual harrassment and libelous speech)to the freedom of speech are very dependent upon the facts of the case." Of course they are, but I was just pointing out that they -- like child pornography -- are protected speech under the narrow interpretation (risk of physical injury). Now it seems that you are agreeing with Sam and me that, where the requisite facts can be proven in court, sexual harassment and libelous speech are not protected by the First Amendment. If so, then our views are not as far apart as I thought.
--David
David, thanks for the spirited and informed discussion of the issue.
ReplyDeleteYes, we probably are not that far apart, however, I will always veer toward the freedom rather than a limitation. Limitations scare me and I would rather support a Nazi parade through Skokie than to limit their right to speak. I think you would agree with that.
Please continue to read the blog and comment. I enjoyed the intellectual challenge.
Yes, I agree on Skokie.
ReplyDeleteBut I still believe the federal courts got it right in Snyder v. Phelps. The disgusting signs that attack generic groups (homosexuals, blacks, etc.) are protected even at funerals, but not the signs that specifically say "you" and are directed at the Snyder family for the sole purpose of inflicting emotional and psychological pain on the victims. I only want to limit Phelps' freedom to the extent necessary to preserve other fundamental freedoms of others that get trampled by granting him virtually unlimited free speech. We still disagree on it, but then, so did the Supreme Court by 5-4.
--David