An Illegitimate Free Speech Debate

Europe isn’t the United States.  That’s either a good thing or a bad thing, according to what the issue may be, and which side of it you’re on. When it’s useful to point to the choices made elsewhere, people are happy to do so. And then, they’re disdainful of such machinations when it’s not. Nothing surprising here.

So when the New York Times uses Europe as the measure of what is, and can be, permissible speech, one can only be deeply saddened that the litigant who hired Floyd Abrams to win New York Times v. Sullivan is only too happy to do the flippy-floppy with Europe when it’s convenient.  And apparently, when it comes to the use of social media and terrorism, the ambivalence is too hard to resist.

Even in the United States, where the Constitution proclaims that freedom of speech may be curbed only if it poses a “clear and present danger,” there is a legitimate debate about what this means in the context of the sort of horrific propaganda that ISIS has spread. In Europe, limits on what can be said or done in specific categories are not uncommon, such as laws in more than a dozen European nations that ban denial of the Holocaust.

By calling this a “legitimate debate,” the door is opened to a balancing of liberty and fear.  The putative test, “clear and present danger,” arose from Schenk v. United States, a World War I decision in which Oliver Wendell Holmes twisted law to suit a nation’s desire to silence speech that failed to support our war efforts.  It was a low point of free speech, but then, in times of war, the law falls silent.

Though the phrase, “clear and present danger,” remains in the American consciousness, it was rejected by the Supreme Court in Brandenberg v. Ohio, where the fighting words doctrine was “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” One would think that someone at the New York Times would know about this, since that decision has been with us since 1969.

The problem, of course, is that Brandenburg does nothing to further the free speech wiggle room that reference to Europe, not to mention Schenk, provides. It’s not that they want to eliminate free speech altogether, as that would be wrong.

Yet laws hastily adopted in the aftermath of a terror attack have a tendency to come back in forms not intended or foreseen. More dangerously, it seems an inevitable extension of Murphy’s law that if a government is given unintended powers, those powers will be misused. The National Security Agency’s misuse of its surveillance powers, as revealed by Edward Snowden, are a notorious example, and what future leaders might do is chillingly demonstrated by Donald Trump’s suggestion that the United States should close parts of the Internet to combat terrorism — and his postscript: “Somebody will say, ‘Oh freedom of speech, freedom of speech.’ These are foolish people.”

The gratuitous smack at a despised presidential candidate and casino pit boss, plus the flagrant abuse of Murphy’s law, notwithstanding, the distinction between First Amendment rights that are liked versus the ones that are not becomes apparent.  Don’t try this at home, as this can only be done by skilled professionals on a closed dissembling track. You could hurt yourself.

The rise of international terrorist organizations and the ability of the terrorists to recruit and indoctrinate via the Internet and social media have created an indisputable threat to democratic societies, one that tests traditional boundaries between security and freedoms.

So we need to stop this “indisputable threat” for the children, even if it means the death of free speech?

On the contrary, what is foolish is the rush to exploit fear and crisis to suppress the freedoms that define democracy — the very freedoms Charlie Hebdo stood for and its attackers sought to undermine. There is no question that terrorism requires a robust response, but it cannot be used as justification for arbitrary and unfair laws.

See? You probably just got whiplash. I told you.  So what’s the point of this editorial, and this concomitant post about it? Perhaps the Times’ editorial is just a free smack at the Donald for saying something monumentally foolish about the First Amendment, as if there was any possibility that he could reinvent it to suit his litigious desire to silence people who don’t love him enough.  For the Times to suggest that terrorism “cannot be used” to justify “arbitrary and unfair laws” hardly seems worth saying.

But at the same time, there is so much misstated, so much wiggle room built into this editorial, as to suggest that this is a pre-emptive shot at breaking down our resolve to protect the “freedoms that define democracy” which the Times doesn’t quite favor.  Like hate speech. Like laws that Europe has embraced, including outlawing Holocaust denial. Like terrorism, provided they’re not “arbitrary and unfair” but important and valuable to protect us.

Walking this very fine line between loving and hating the First Amendment, according to whether or not you favor any particular outcome, is a dangerous and offensive trick. The New York Times wants to leave open the door to the suppression of speech that it finds unacceptable, while slamming it shut when some yahoo like Trump tries to use it to pander to the base emotions and ignorance of people who aren’t Times subscribers. Or to put it more bluntly, free speech is very important except when the Times says it’s not, because feelings.

In the process of trying to play both sides of the issue, however, it deliberately embeds a degree of stupid in its readers. The only thing missing is the reference to “yelling fire in a crowded theater,” provided that the people in the theater who burn are all Trump supporters.

There is a clear and present danger to our appreciation of what the Constitution protects, and it’s editorials like this that throw principle to the gutter to smack down the enemy while preserving their own options. It’s not that Trump’s statements about the First Amendment aren’t ludicrous, but that the Times’ editorial is just as dangerous.


9 thoughts on “An Illegitimate Free Speech Debate

  1. PDB

    Given how completely meaningless this editorial is when taken as an entirety, you have to wonder whether it was written in an attempt to make a serious point (at which it failed), or in an attempt to fill space on the editorial page in the print edition (at which is succeeded).

    1. SHG Post author

      That was my initial impression, but it became clear when the slipped in the Trump example as a juxtaposition to their own sensibilities. It may be subtle, but there’s method to the madness.

  2. mb

    I’ve never seen so many words spent setting up the required limiters and unlimiteds for a successful doublethink with so little use of said doublethink to advocate for anything. It’s like they just wanted to make sure that we know that they can pretend that their feelz are immutable principles, even though they aren’t feeling strongly about anything at the moment.

  3. David M.

    “free speech is very important except when the Times says it’s not, because feelings”

    Want this as a tattoo. Maybe on the forehead.

  4. Random Wine Geek

    I’m so thankful that the current Nee York Times editorial board wasn’t at the helm in the 1960s and 1970s. Every reporter and editor should be required, as a condition of employment, to read the opinions in New York Times v. U.S. (especially the Brennan concurrence) and New York Times v. Sullivan at least once a quarter, and to write an essay analyzing whether they are living up to the standard set by their predecessors.

  5. Lurker

    As a European, I’d like to note that we are pretty keen on our freedoms and rights. The difference is mainly the order of precedence.

    For example, we have a much better and more strictly regulted right to privacy than you do. As a necessity, it also means that free speech needs to be balanced against it. This is a good thing: publishing a name of a defendant in a minor crime is a criminal offence, which allows for better rehabilitation. The private companies are not allowed to keep arbitrary databases on people, and public officials aren’t allowed to publish mugshots or criminal records to smear people. Such limitations on speech protect the individual. (With well-developed exceptions for public figures, allowing for political debate.)

    We definitely do not have the completely unlimited principle of free speech, because we’ve learned the hard way that tolerating extreme forms of intolerance is dangerous for the democratic society. Still, we have managed to keep free society for decades (in the particular case of my nation, since 1918). Thus, you should not decry the constitutional principles of another country, if you do not understand them nor know how they are applied in practice.

    1. David M.

      Hey Lurker, you’re Finnish, right?

      Sweet. I’m German. We also “balance” rights. And since I don’t want to bore you or other readers with a lengthy sermon, I’ll just tell you that our constitution protects both free speech and a right to “dignity.”

      Sixty-five years of constitutional jurisprudence later, our right to free speech is essentially gone. What’s more, the government now has a constitutional writ to intervene in private speech between private citizens, ostensibly to safeguard our dignity. The document Americans helped us design, that was inspired by the US Constitution and supposed to rein in the government, now serves to expand its power.

      And in practice, our restrictions on speech are used to crack down on people who voice political opinions our sitting government doesn’t like, as well as on people who hurt the feels of celebrities or gov’t employees. Just like speech laws the world over (cf., say, blasphemy laws.)

      “Tolerating extreme forms of intolerance” is a bad thing? Way to go. As soon as you stop, you’ve become that which you set out to prevent. Restricting disfavored speech isn’t just a double-edged sword; it’s self-defeating. Kant would hate it.

      ps. I’d caution you not to conflate gov’t regulation of private speech with restrictions on what government officials may say when they’re on the job.

      1. SHG Post author

        Because I put little stock into vagaries like “dignity,” I prefer to use the paradigm of communications. As it’s a two-part process, sending and receiving, the question is which side is forced to suffer the “indignity” of limitations, the sender who is precluded from putting his thoughts out there or the recipient who doesn’t want to hear the sender’s hurtful words.

        Lurker is right, that it’s a matter of priorities. Mine are clear, and so I dismiss his as wrong. Not because I don’t know them or grasp them. I just fundamentally disagree with them.

        1. David M.

          Well said. And there’s your difference between Americans and Europeans. For us, despite our rhetoric – all the “balancing” bullshit – putting your thoughts out there is very clearly a privilege, not a right, and the government’s to withhold.

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