Sterling Silver

In 1977 a group of Nazis wearing and bearing swastikas marched in Skokie, Illinois. Skokie is a town with a majority Jewish populationⁱ and, having been warned of the upcoming event by the boasting of the Nazis themselves, some citizens attempted to use the legal system to prevent the march from occurring. The lawsuits aimed at doing so worked their way quickly through the court system, and ended when the Supreme Court affirmed the right of the Nazis to march.ⁱⁱ

There is protection of our people, by the First Amendment to the Constitution that established the United States, from intrusion into their right to free speech. That dictum gave the marchers the right to flaunt their prejudices untouched by the authorities. It is a protection, however, from any action by the government, and, at least on paper, does not limit a private organization from deciding what speech it will permit. Thus a newspaper can select which articles, letters, and opinions it will publish, and colleges can evict an individual who disrupts a speaker.ⁱⁱⁱ

Perhaps our laws should protect free speech from attacks by non-governmental groups and individuals – but they don't. There are certain uses of speech that are limited or prohibited by law^iv or by the courts,^v but those are exceptions. (In addition there is some limitation on the use of pejorative speech which targets “protected” minorities; and the government becomes involved when it is used during the commission of a crime. This turns it into a “hate” crime with increased penalties. In this instance however, the government is involved speech which, at the time uttered, is not Constitutionally prohibited.)

But, for the most part, free speech is not a feature that automatically exists outside of government. And we impose added limitations on ourselves and on others.

So Los Angeles Clippers' owner Donald Sterling's racist remarks are not protected. Indeed, Sterling's views have long been known throughout the basketball community.^vi And yesterday NBA Commissioner Adam Silver imposed a lifetime ban on Sterling's participation, in any way, with NBA activities. He also fined Sterling $2,500,000, and asked other team owners to force Sterling to sell the Clippers.^vii Silver's decision has been widely praised, not only by those involved directly in the sport, but by the general public as well.

I must admit that I am disturbed by a law that allows Nazis to spew bigotry and hatred publicly, outside the homes of people whose friends and families were murdered by those whom the marchers admire, while words of bigotry and hatred are not protected privately inside an individual's house. I should have thought the opposite to be true – that we were free to think and believe what we want, and to speak our minds freely within the confines of our own castles (it shouldn't matter that what we said was unpopular or even, as it was in this case, racist) despite their proscription in public.^viii

The widespread dispersion of someone's words or image has been made possible and popular by the internet and the social media. The Supreme Court may have decided that there was a Constitutional right to privacy^ix but the parameters of that right aren't clear. Ideally then, even if speech isn't protected, the right to privacy should limit the damage. Such privacy, though, which used to be the heritage of all except “public figures,”^x now doesn't seem to be available to anyone. In this particular instance, Sterling was recorded “illegally,” but the person who made the recording will probably benefit greatly from the act and is unlikely ever to be punished. The concept of privacy is dead. No longer can you say what you think in public or in private; and you take a risk even thinking it.

I'm a hermit. I don't like to talk to people and I suspect my ideas don't correspond to theirs anyway. If I have prejudices, I'm not going to reveal them to anyone but you.^xi And you're not listening anyway. But sooner or later I'll be “outed” and someone will take issue with what I think. I hope so. I haven't had a good fight all day, and you can't force me out of the NBA.

I         Including a large number of Holocaust survivors.

ii        More precisely, the Court decided that the Illinois Supreme Court's action to stop the march was improper, and the group's First Amendment rights would be violated.

iii      They rarely do however. Academic institutions take pride in allowing “free speech,” especially the “proper” unpopular views. They revel in declarations of their openness to all opinions, emphasizing those popular with the faculty and with minority groups. And many of them defend the disruption of some campus speakers as the exercise of First Amendment rights by those who are disrupting. Since, by doing so, they sacrifice the opportunity for free speech by the speaker, their position is difficult is difficult to justify. Even more so since the Amendment specifically deals with governmental actions.

iv        For example libel or slander.

v        Speech aimed at causing a riot will not be permitted. The classic example is falsely yelling “fire” in a crowded theater. There are, however, other limitations on speech.

vi       Though they never were a matter of much concern until they were “tweeted.”

vii      Whether these decisions are legal is up to the lawyers to argue and the courts to decide, but the remarks attributed to Sterling – and he has admitted to having made them – have been widely condemned.

viii     Actually we should be able to speak our minds publicly as well, but some are too “sensitive” to tolerate that.

ix       Even if the Constitution is unaware of it.

x        Who is a public figure and how can someone decide he doesn't want to be one? Is it possible for someone to assert that he want's his privacy – that the Supreme Court has told him he is Constitutionally entitled to it? And if he makes such an assertion, does it have any meaning?

xi      PETA be damned, I have a very low view of skunks. There. Now I feel better. But don't tell them that or I'll never be allowed in a zoo again. Anyway, they'd probably prefer to eliminate the zoos.

Hate Speech – The Case For (Against?)

“Suffer you mother-*#&@%<~ son-of-a-!%*&$. I hope you rot in Hell.” Not a nice thing to hear. Especially if you're being kicked at the same time. It's assault, and it's punishable as such.

But what about “I pray that you are forgiven.” Said to a homosexual, as the speaker knocks the wallet from his hand while he is preparing to make a contribution to an LGBTⁱ charity, it's hate speechⁱⁱ and it may also deemed assault,ⁱⁱⁱ but more than that, because of what was said, in this instance it's also a hate crime.

The First Amendment, it seems, has become a framework for various pressure groups to use when promoting their aims. Thus:

“In 1977, the ACLU filed suit against the Village of Skokie, Illinois, seeking an injunction against the enforcement of three town ordinances outlawing Neo-Nazi parades and demonstrations. Skokie, Illinois at the time had a majority population of Jews, totaling 40,000 of 70,000 citizens. A federal district court struck down the ordinances in a decision eventually affirmed by the Supreme Court.”^iv

Free speech had to be protected irrespective of the consequences, but in an age of diversity and multiculturalism

“Islam and Freedom of speech has become a contentious issue in recent times. The limits of what is, and what is not, acceptable speech is becoming a new battleground between Islam and the west. The issue came to a head in September 2005 a few days before Ramadan when the Danish newspaper Jyllands-Posten printed insulting and blasphemous cartoons of our noble Prophet.”

That statement, and its explication of “acceptable speech,” as printed in the blog of Caliphate Online, doesn't come as much of a surprise. The fact that important American publications refused to publish those cartoons, however, is a little more troublesome. Although there are loud protests whenever their own actions are criticised, and accusations that other parties would abridge their First Amendment rights, “Major American newspapers, including The New York Times, The Washington Post, The Los Angeles Times and The Chicago Tribune, did not publish the caricatures. Representatives said the story could be told effectively without publishing images that many would find offensive.”^v They chose, in this instance, to practice self censorship. Free speech was less important than not offending others. Sensitivity was the prime consideration in reporting this piece of news. When it comes to expressing editorial policy, however, the same papers are not at all reticent about stating views that many will find offensive. First amendment rights and free speech^vi are for those who can afford it, and they can exercise it whenever they choose to do so. And, as they have demonstrated, they can eschew it whenever they choose to do so. Notwithstanding any protestations of virtue and concern, their agendas seem to reflect politics rather than sensitivity.

And some publishers had other motives. “John Donatich, the director of Yale University Press, said the press has a long history of defending free expression, but the risk of violence in this case, outweighed the benefit of including the images, which can easily be found on the Internet.”^vii The same fear of violence motivated other publishers to take the same course.

“Congress shall make no law ... abridging the freedom of speech, ... ” That was the take on speech in 1789^viii But that has since been viewed as more a theory than as an appropriate reality. Though the Constitution said nothing about judicial interpretations of that or other mandates, nor about legislative measures that respond to the Court's decisions, it's clear that the First Amendment (as well as the remainder of the Constitution and its amendments) is flexible.^ix It shouldn't be taken too seriously. It's not an absolute. It is more important that we not risk the possibility that emotional harm that might come to anyone who is in a preferred^x group. That, of course, is not everyone, as the ACLU has shown.

And the definitions of “free speech” and one's First Amendment rights are also somewhat fluid. They include both the requirement that one be able to express his views, even if others^xi may find them hateful, and that he be able to prevent those others^xii from expressing theirs. It may not be clear from a simple reading of the Constitution that these “rights” exist, but executive, legislative, and judicial practice reflect the fact that they have a significant presence in the American ethos. Surely they're in the Constitution. How could it be otherwise? If we haven't found them, we haven't looked hard enough.

We are left with a language of sensitivity and euphemisms. We are reluctant to “call a spade a spade.” So we deny the language we learned as children and substitute code words when we suspect precision will cause discomfort (without always asking those we see as “victims” whether they agree). Later, however, we'll have to substitute other code words when we feel that the ones we have been using have taken on the pejorative tone at which we cringe.^xiii We practice self-censorship and the censorship of others with whom we disagree. And if we cannot censor, we punish. Somewhere along the line “hate speech” has become more offensive than any crime it might accompany. And the ACLU seems to take note only of certain “offenses” while ignoring others. It is clearly inappropriate to defend those who would insult Muslims, blacks, homosexuals, or others who might be offended. That would show a lack of sensitivity for their feelings, and the Constitution certainly shouldn't protect that. But if Nazis want to affront Jews or others, stopping them would be in violation of the same Constitution.

I know it's wrong of me to think so, but from my perspective there should be a single standard – either all speech designed to express opinion is permissible^xiv or it isn't. If the latter position is to be adopted, then it should apply to every instance in which an individual takes exception to what is being said or done. It should not be made the rule only for some preferred people of groups. But in any case, I don't think that was the intent of the Founding Fathers. If the media are free to express opinions, so are individuals. And a crime is a crime. It is the crime that should be prosecuted, irrespective of the motive. If the opinion of the perpetrator is the decisor of the significance of the crime, we have lost the freedom to form our own opinions, and the Constitution and Bill of Rights are meaningless. However attractive that may be to many among us, we will all lose by it. “Acceptable speech” is not acceptable.

Next episode: “Mom, Pop, And Jack The Killer Giant” – Burnt fat and me.

i     Lesbian, Gay, Bisexual, Trans-gender.

ii    The previous declaration, since it mentions “mother” and “son,” clearly expresses family values and represents a statement of love, not hate.

iii    And it's probably a few other crimes as well.

iv    Wikipedia article on ACLU.

http://en.wikipedia.org/wiki/American_Civil_Liberties_Union

v     U.S. Says It Also Finds Cartoons of Muhammad Offensive, Joel Brinkley and Ian Fisher, New York Times, February 4, 2006

vi    Ditto propaganda.

vii    Patricia Cohen, The New York Times, August 12, 2009. The view, apparently, was that others should take any risks involved. Yale was playing it safe.

viii    That's when the Bill of Rights was submitted to the new states. It wasn't ratified until 1791.

ix    I'll comment on the Judiciary in a future essay – a continuation of the ongoing series on proposals for changes in the Constitution.

x     Read “minority,” although that is a political, not a mathematical term.

xi    Who are not in one of the favored groups.

xii    See note x. It is permissible, indeed appropriate, to shout down those who would espouse a contrary view.

xiii    I recently heard on the radio about a politician who was taken to task for using the word “disabled.” Some felt that this was too harsh. Presumably they preferred “differently able” or “challenged,” but the individual who had been careful not to specify the disability (lest it be considered insensitive) was berated.

xiv   Holmes's exception for speech intended to cause danger – he mentioned “fire” in a crowded theater – however, makes sense. I'd also make an exception for speech (or publication of material) that threatens pubblic or national security. Some governmental secrecy is necessary if we are to be able to deal with other nations.

Sez Who?

 

“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 crime^vii – 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.

iv    Schenck v. United States, 249 U.S. 47, 1919.

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

All The News That's Fit To Print

 

Who, what, where, when, and how. They're supposed to be the basis of journalism – the information, the points most important when writing an article for publication. And they must play some part, but certainly not the most important, in the process. If information were the primary consideration they might be – but it's not.

The most important criterion in journalism nowadays is selling the newspapers,ⁱ not the significance of the story or its completeness and accuracy. So there's only one question to be answered now: “Will it sell?”ⁱⁱ

In that respect there are several determinants that play a part. People are certainly interested in news, but even more so in news that feeds their biases. So, for example, if Palestinians butcher an Israeli familyⁱⁱⁱ it will play well in papers that serve Jewish populations and in papers that specialize in sensationalism.^iv For others it will be a one-shot affair, appearing, but hidden, because it cannot be completely ignored, but it's not something an editor with a contrary agenda or mandate wants to dwell on. And, of course, it will play well in those media serving populations that cheer the event, only in those outlets the slant will be different.^v

One criticism of a free press and the First Amendment is that it exists primarily for those able to pay the bills.^vi If you can afford to publish, hire editors and reporters, and control editorial policy, you'll be able to exercise your constitutional rights to the hilt.^vii You can give news space to advocacy journalists who don't hesitate to use loaded language and opinion in articles nominally labeled as news, and their bias – what they promote in those articles – is your bias. After all, that's why you hired them.

But there are other considerations. How do readers see themselves?; what are the characteristics by which they define their lives? Are they conservatives or liberals? Do they view themselves as intellectuals who look for articles with big words that won't be understood or appreciated by their “inferiors,” or are they simply interested in easy reading?^viii How big and how colorful should the pictures be? And how catchy the headlines? Do readers want to be surprised or given stories that fulfill their expectations?^ix In the unlikely event that Israelis were to slit the throats of Palestinian children there would certainly be detailed and well-illustrated front page stories, for prolonged periods, around the world – especially in Arab countries and in Europe. And in “liberal” papers everywhere.^x In fact, had that been the story recently, it would have blown reports of the earthquake, tsunami, and nuclear accident in Japan out of the water, and it would have dominated the United Nations Security Council debates, making Libya a second-class crisis.

And it is not simply the stories that sell papers, other features^xi include such additional items as comics, puzzles, advertising, entertainment listings, gossip, and, of course, sports. The mix of all these elements is the grist which you might think is produced by the media mill, but it is actually the fuel which makes the mill run. The publisher may provide the underlying bias – one governing both the slant of the “reporters” and the choice of the consumers – but it is hardly the only consideration used in crafting a media product. Whatever the publisher's politics, left or right, he's in business to make money. (Even liberals want to make money.) So he caters to his public's other wants as well.

But it's usually not a problem – at least in locales where there are multiple outlets. And that is now becoming everywhere, since the internet is available.^xii The publishers choose the issues^xiii and the public chooses the publishers who say what particular groups want to hear. The opinion columns will generally follow the opinion preferred by the organ, although there will often be a smattering of contrary views to demonstrate “even-handedness.” And letters to the web site or paper will usually reflect the view of the outlet as well – either because the readers already favor its perspective, or the letters published are selected to reinforce what has been written.

There's another group whose voice must be heard. That is the voice of the advertisers. Readers don't pay the bills. Advertisers do. But advertisers have a far greater interest in selling products than in selling political opinions. They tend to stay aloof of issues and maintain their neutrality to as great a degree as they can. Their advertisements are certain to appear in multiple outlets with conflicting politics in order to reach as many people as possible. They're only likely to withdraw their ads, for a period at least, if they get too many angry letters about a particular position expressed by a paper – one that embarrasses them. And they don't get embarrassed easily. It's bad for business. What's good is that a lot of people see the ad. Their politics are irrelevant.

What it all boils down to is the idea that when you read your favorite source of news you are getting what you pay for. It may not be true or complete, but it will be predictable and satisfying, especially if it promotes your righteous indignation. As Will Rogers said, “All I know is what I read in the papers.” He was, of course, being sarcastic. He was aware that the papers weren't to be trusted. But that's something that all of us should keep in mind.

Which leaves us with:

Who? Who can supply what the publisher believes and what the readers will buy? Don't waste your time with truth and accuracy. That's rarely the concern of the readers.

What? What do those readers believe already? It's worth reinforcing.

Where? Where can we hide a story we don't like but are obligated to print, and where can we place the advertisements so they won't be missed?

When? When will they be bored with the current story and looking for something new? New is more important than news.

Why? Why do readers actually take what they read seriously? But then who cares – as long as they buy the paper or turn to our internet site?

Next episode: “A Christmas Letter” – Unseasonal?

i     Actually that should read “media” rather than “newspapers.” The world is changing and with it the means of communication of information. Indeed, the nature of information is also changing, or at least the nature of what people consider information.

ii    In fact that's probably always been the case. If publications like the Weekly World News sell, it can only mean that truth and accuracy are not major considerations among the readers.

iii    As happened recently in Itamar, Israel.

iv    As they say in the trade, “If it bleeds, it leads.”

v    “Advocacy journalism,” the disguising of opinion as fact, can take any event and tailor it to the bias of the “journalist.”

vi   The same is true, by the way, for all propaganda. Whether paid for by bribes, threats, or industrial (or oil) contracts, the circulated points of view can be costly and, in the end, the consumer will pay for it.

vii   You're entitled to a contrary opinion. You have rights too. But no one is obliged to publicize it.

viii   Or viewing, or whatever.

ix    The classic, if apocryphal, example is the story titled “Man Bites Dog” rather than “Dog Bites Man” which would be more in keeping with people's stereotypes.

x    The same story, of course, would be played down in media with a different perspective.

xi    Especially features.

xii    The publisher of a local organ may be obliged to slant his news in keeping with local biases, but he is likely to have them anyway. National and international news are probably obtained from other sources.

xiii   The editors choose which articles will appear since there is not room for every story to appear. The result is that the stories chosen are usually those that say what the publisher wants said, and there is “no room” for those that might lead a reader to consider a different opinion or to focus on a different subject. Although editors usually profess independence, they will rarely disagree significantly from the ideas of whoever signs the paycheck – either because they chose the position based on the outlook of the organ, or they were chosen for the position based on their previously demonstrated slant.