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Free Speech Has Limits


January 6, 2021, Will Live In Infamy

The United States Capitol was attacked by a pro-Trump mob last week and free speech has been implicated in several respects.  You may or may not support President Donald Trump.  This blog entry doesn’t depend upon your position. We will most definitely be hearing about the siege on The Capitol for a long time.

I’ve noticed what is obvious and widespread misunderstanding about what free speech is and isn’t.  I want to offer some clarity on that topic. There’s a lot of ground to cover about free speech, and I will only be able to touch the surface of this vast topic. 

I Am Passionate About Free Speech

My interest in the topic of free speech and of the First Amendment has been keen since my adolescence.  As a child I read countless books on virtually any topic I could find.  The arrival of the bookmobile to my neighborhood was my lifeline.  I subscribed to at least two newspapers from the time I was 10 years old until the last few years, and I consumed them voraciously.*  I even had multiple letters published in the two major newspapers in Houston by age 12.  I’d read extensively about free speech on my own long before studying it in school. I fully understand unpopular speech and “wrong” speech, especially that with which I disagree, need protection.

My background also includes completing two undergraduate degree majors which have intimate involvement with free speech, political science and journalism. My expectation was to have a lifelong career in one of those fields. I was familiar with the seminal free speech cases from the Supreme Court of the United States before I got into high school. I became far more familiar with the legal framework during college and law school.

I’ve been paying a great deal of attention to speech since Wednesday morning. 

Pre-Siege Speech Was Inflammatory

Speeches at Trump’s rally down the street from the Capitol by Trump and others were inflammatory and included a multitude of falsehoods.  That type of event and language aren’t unusual.  The circumstances were exceptionally unusual, however.  

Congress was nearby, and its members, along with the Vice President, were gathered to fulfill their Constitutional duty.  They were there to count the votes cast by the Electoral College electors.   Radical groups with proven violent acts and violent rhetoric were promising to be in D.C. and to take action. Trump himself addressed one such group during a presidential debate, telling them to “stand back and stand by”. 

Context matters when discussing free speech. When, where, and under what circumstances words are spoken can make a world of difference.

People Don’t Seem To Know Basics

Since Wednesday, I’ve seen and heard a multitude of false statements about what free speech means.  Regardless of our opinions about the subsequent attack on the Capitol, our free speech rights are just as valid now as they were before the attack.

The actions now causing massive outrage in some circles ring hollow. We are not entitled to say and do whatever we want as individuals without consequence, and we certainly are not entitled to use others’ property and time to serve our desire to be heard.

Censorship Is Happening

Twitter and Facebook banning Trump and others is worthy of discussion, but many people seem to miss what it means in a free speech context.  Apple, Google, and Amazon choosing to remove Twitter rival Parler from their service platforms and support are noteworthy events, as well.  Parler seems to be a lightning rod because of having no effective policies to police calls for violence, including the murder of Vice President Mike Pence. Unsurprisingly, no one wants to work with Parler now, but that may change soon.

What those companies are doing is clearly censorship.  As a general rule, censorship is rightfully disfavored in free society.  Sometimes, it is justifiable, such as when there are threats of death or other violence.  Sometimes, private companies refuse to broadcast radical, violent voices so as to avoid possible liability.

Censorship can be right in certain contexts. Speech of violent radicals bent on inciting murder does not belong in the category of “free speech” in a civilized society.

The implications and fallout from the companies’ actions will likely take on a life of their own.  Whether their reasons were justified in these circumstances will be debated. 

Social media presents challenges to traditional frameworks for analyzing free speech legal issues.  For now, they legally can do what they’ve done. Unless laws regarding those companies change, we don’t have an enforceable right to use their services.  Those issues would break new ground and go well beyond what I wanted to cover in this blog.

Freedom of Speech is Misconstrued

To me, the most obvious misunderstanding is thinking any and all speech must be allowed without consequence.   A close cousin of that concept is the misunderstanding that “free” means limitless.  A sizable portion of people seem to think free speech entitles them to a platform for their speech and an attentive and receptive audience to go along with it.  All of these thoughts are wrong and blatantly absurd.  

Freedoms have context and are not without responsibility.  Breaching such responsibilities justifies penalties and curtailing freedoms.  Defamation, known as libel and slander, which is basically false speech harming someone, is illegal and punishable by civil lawsuits.  You may be familiar with the defamation causes of action: libel and slander.   Other forms of unprotected speech can result in criminal prosecution, such as incitement to riot.

Speech Includes More Than Words

Speech is a broad term.  It can be written or spoken words, and it routinely includes actions as expression of ideas. Even violence is a form of expression; for instance, it can express rage or hatred. 

Most people understand violence is not acceptable as a form of speech.  One has no right to commit violence, plot violence with speech, or threaten violence against one’s neighbor because of hatred of that neighbor. 

For the sake of this blog, I will call physical violence, plotting violence, and threatening violence in any manner “violent speech”.

Violent Speech Isn’t Free

Violent speech should not be free.  It is not free. It has been illegal your entire lifetime.  There is a clear dividing line against allowing violent speech.  Supporting violent speech is supporting violent crime.  Terrorizing people is not protected speech, nor should it be.  Our laws rightfully criminalize violent speech. 

Free Speech Is Critical To Freedom

Free speech is needed in a free society.  It encourages people to speak freely.  Such freedom feeds open minds.  It allows for the free flow of ideas.  It allows ideas to compete for adherents.  It doesn’t guarantee “good” ideas will win the day over “bad” ideas. It allows people to choose for themselves which ideas constitute “good” or “bad”. It allows unpopular ideas to be included because sometimes, what is now unpopular sways others in new circumstances.

Free speech is a virtue on its own, but the ultimate expression is change beyond words, words coming to life through action. The unacceptable alternative to free speech is artificial restriction of ideas and expression, as well as fear of official retribution. Free speech is vital to free society.

Freedom Requires Thick Skin

As members of our society, we must accept the fact some speech can make us uncomfortable and evoke extreme passions.  In fact, that is a key characteristic of free speech.  We must have thick skins. We must accept the fact others’ opinions and beliefs will offend and disgust us.

We also must accept the fact some speech causes harm, and not all harmful speech can legitimately be restrained or punished. The fine line is to determine where violent speech begins.  Where violent speech begins is where free speech ends.

These Concepts are Key Truths

Here are some simple concepts to put in your pocket.

The First Amendment contains a legal restraint upon GOVERNMENT, NOT PRIVATE PARTIES.  Some speech can be made illegal, even criminal, in limited circumstances. One such circumstance is incitement to riot.  Some limited government censorship is even lawful.

Social media companies are not government, so the First Amendment has no application to them.  Freedom of speech and censorship are much broader concepts than the First Amendment.

Social media companies have terms and conditions for users of their platforms.  Violations of those terms and conditions may be enforced by those companies as they see fit, as long as they are lawful.  For the most part, they can do what they want with their own property.

Similarly, we have no right to use local or national television stations owned by others to allow us to broadcast our speech.  We have no right to force newspapers and magazines to publish our speech. We have no right to another person’s bullhorn. The same applies to social media companies.

No one is owed a platform. 

No one is owed an audience. 

No one has a right to force people to listen. No one has a right to an agreeable, cooperative audience.

No one is owed cooperation from private property owners to assist exercising free speech.  No one is owed the use of others’ private property to get out their message.  I have no right to use your bullhorn, nor access to your private ranch while you have a large gathering of people there. That is true, even if you let everyone else use your bullhorn and ranch.

No one has a right to avoid consequences for their exercise of their right to free speech.

Most importantly, free speech has limits and goes hand in hand with responsibility.