“One man's terrorist is another man's freedom fighter.”
“Muslims are the majority of terrorists.”
Where do you draw the line between bias, opinion, and fact? And where does outright lying fit in? Should you draw a line? How shall we interpret and implement the First Amendment?i
Justice Potter Stewart is remembered (among other things) for his attempted definition of “hard-core pornography”: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it …”ii Not everyone agreed,iii some questioning the “definition” and others the decision. In fact, another concurring opinion in the same case, that of Justices Black and Douglas, maintained that the First Amendment does not permit censorship of any kind. Is “censorship” the same thing as the banning of free speech? And is it really total?
Justice Oliver Wendell Holmes, Jr. didn't think so, writing "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic."iv Why not? The test that the Court applied was the possibility of creating a “clear and present danger.”v In the case they were evaluating, the Court decided unanimously that the plaintiff had crossed that line by pamphleteering against the [First World] war and urging draftees not to cooperate, and his conviction for conspiracy to violate the Espionage Act was upheld. Speaking for the entire court Holmes related the view that particular statements had to be viewed in the context of the times. Statements which were considered unexceptionable in peacetime might be punishable in time of war.
But ideas about the definition of obscenity and clear and present danger aren't really the main issue. The real question has to do with free speech. Is it absolute?
That, though, brings up another question. Are there absolutes? Or do views of “eternal truths” really depend on the times and mores. What does a Justice “know?” Justice Stewart was sure of himself, but was he doing any more than expressing a prejudice?
And, who decides what [absolute] community standards are? If those are the benchmarks by which people and ideas are to be judged, there has to be some way the individual will know what they are, and what the law is, if only so he can obey it. Although the decision would ultimately be made by a jury, the standard remains very subjective and that presents the possibility that someone might act in good faith according to what he believes are reasonable standards, but be overruled by a more conservative jury.
That kind of subjective criterion for what is and is not acceptable is also one that has been the focus of more recent debate. It has yielded euphemism as an art form, and euphemisms as societal norms: politically correct speech and the entire idea of “hate” speech are good examples. So is “advocacy journalism” – the use of what pose as objective news stories to promote personal biases or political spins. It is the Trojan Horse of journalism.
What's the line between “hate speech” and “fire?” Is there one? I think so. And my inclination would be that it relates to what the speech is likely to provoke or has already provoked. If the crime was caused by the speech,vi the speech should be actionable. If the crime did not specifically result from the speech, it is the crime that should be punished, and adding a penalty for “bias” is simply a means of discouraging free speech. In the case of the individual who cries “wolf,” whose shouts of “fire” cause a crowd to stampede and result in an injury or death, the shouts are crimes additional to the injury or death and should be prosecuted as such. However offensive we may find calling a Jew a “kike” before mugging him, though, the crime was the mugging, not the insult. Using his words to add an additional punishable offense – a hate crimevii – impinges on his freedom of speech.
Much remains subjective. But the punishment of speech that does not result in physical injury seems a contradiction of what we consider a basic right. The view that a particular statement is a threat, that it insults someone, or that it may cause psychological damage,viii is certainly one that must be respected, however censorship is a solution that is even more threatening. No one will defend the idea that “names will never hurt you.” They will. As will verbal abuse and bullying. But punishing the name-caller is not the solution. Justice Louis Brandeis said, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."ix,x,xi
Next episode: “Pride And Principles” – Gary Cooper, Grace Kelly, and American Foreign Policy
i The real question relates to what the first amendment (and, by extension, the fourteenth – Gitlow v. New York, 268 U.S. 652, 1925) covers. That seems to be a moving target.
ii Jacobellis v. Ohio, 378 U.S. 184, 1964. His opinion concurred with the Court's that the film that was being evaluated fell into the category of protected speech which, in his view, permitted all obscenity except hard core pornography.
iii The Court, itself, later changed its view of obscenity. In Miller v. California, 413 U.S. 15, 1973 it loosened its definition, making “community standards” the deciding factor.
v The “imminent lawless action” test (the Brandenburg test) has replaced that concept. See Brandenburg v. Ohio, 395 U.S. 444, 1969.
vi Libel and incitement are two examples that come to mind immediately.
vii Hate speech will be discussed in a future blog. Nah. Whom am I kidding? I haven't been subtle about where I stand, in this or prior blogs, so let me finish this off now. The whole idea of “hate speech” is obtuse. It's the creation of PD (politically delicate) people who are so sensitive to the feelings of others that they would sacrifice free speech and liberty in general for the chance to appear to be concerned for the rights of others. It's simply a way to pile on charges when someone is accused of another crime. Correctness is more important to them than the First Amendment. I don't buy that argument for a moment. There's no need to waste another blog on it.
viii It is, however, difficult to determine who would be wise enough to make such a decision.
ix Emphasis added.
x Whitney v. California, 274 U.S. 357, 1927. Justice Brandeis joined in the decision to uphold the law under which the plaintiff was convicted, but that was for Constitutional reasons separate from the facts of the case.
xi “The price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.” – Justice Robert Jackson
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