Free Speech Has Limits

As Americans, we cherish all our freedoms and perhaps none so much as our freedom of speech.  We, as a nation, will bend over backward to allow all manner of commentary, even that which offends us.  Free discourse is the backbone of our democracy.

There is however a line where such speech becomes more than speech.  When words are spoken that are fashioned to inspire or result in violence, that speech becomes criminal.  Drawing that line cannot be arbitrary but I think rational people, know it when they hear it.  This is to paraphrase Supreme Court Justice Potter Stewart who in 1964 when asked to define obscenity made his now famous declaration, “I know it when I see it.”

When the First Amendment was written and passed on December 15, 1797, there was no telegraph or telephone to spread this news.  Forty-seven years later, in 1844, Samuel F.B. Morse had come up with the telegraph and had begun stringing a wire between Baltimore and Washington, DC.  At about that time, the Whig party nominated Henry Clay as its presidential candidate.  The news of his appointment was then telegraphed from Annapolis Junction to Washington.  There was an immediate outcry from MAGA Republicans who proclaimed it to be fake news.  This was only remarkable because the Republican Party would not be founded until 1854, ten years later.

Sam Morse and Telegraph

Yes, we’ve come a long way in delivering information (aka free speech) with a speed and magnitude that 1797 Americans could not have fathomed.  We now have the radio, television, cell phones, and the Internet.  It is today estimated that 3.2 billion images and 720,000 hours of video are shared on social media daily.  These messages can travel at the speed of light around the globe.  That’s a lot of free speech.

So, where to draw the line?  For those who would argue that there should be no line, I would counter that under current case law, there already is a line.  It is merely the judging of which acts of communication violate those laws by crossing that line.  This is where a certain amount of subjectivity comes in and requires that rare commodity, common sense.

First, we have “true threats” as an exception to First Amendment protections. These are defined in Virginia v. Black 2003 Supreme Court decision as, “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”  Such speech becomes intimidation when a speaker “directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”  That’s when speech becomes criminal and not covered by First Amendment protection.

For example, if a president gives a speech to a crowd specifically gathered to stop the peaceful transition of power, and that person knows that some of the people in that crowd who are dressed in military attire carry deadly weapons, and then that person specifically identifies a person we will call Mike Pence for illustration, as the person who is responsible for their loss in the last election, and then he tells that crowd to march to where a government body that includes Mr. Pence are peacefully convened to formalize the will of the majority of voters, this might be viewed as a “true threat.”  His statement that, if his supporters didn’t, “fight like hell, or you’re not going to have a country anymore,” might even underscore that “true threat.”

Then, just minutes later, that group of excited individuals marched on that building and violence erupted.   The group of people inside the building collectively are forced to hide or run for their lives and are seen calling their loved ones to say their goodbyes.  A reasonable person might deduce that the speech referenced earlier, along with similar speeches from others, was indeed a “true threat,” now being played out in real-time.

Now we come to the matter of intent.  We know that the main speaker at this event should have reasonably known that his words would result in a violent riot.  Even if we give him the benefit of the doubt, we now know that he watched the resulting violence caused by his speech play out on live television. 

We also now know that people told him that he could stop the violence with a simple tweet or public announcement but that he refused to do so for several hours.  One might reasonably surmise that things were all going according to his plan.  This is what he intended all along.  It was only after someone was shot and killed that he used the power of his office and his influence to tell the mob to go home.  The mob then followed his command.  That sounds like clear intent.

 

A second exception to what is considered protected speech is termed “incitement” when it promotes violence or lawless action.  In caselaw, as referenced in the 1969 case Brandenburg v. Ohio, the court distinguished between mere advocacy and incitement likely to cause imminent lawless action. 

So, when Marjorie Taylor Greene speaks at a conference of fellow white supremacists and denies responsibility for planning the January 6^th insurrection by stating that if she had been involved, “we would have won…, we would have been armed.”  She is well within the bounds of protected speech and entitled to be rewarded by Kevin McCarthy with a seat on the Homeland Security Oversight Committee.  The FBI has identified the white supremacy movement to be one of our most significant sources of domestic terrorism.  MTG is a regular speaker at white supremacy conferences and Homeland Security oversees the FBI.  Unless MTG is an undercover agent working for the FBI to investigate white supremacy from the inside, appointing her to this oversight committee seems like a diabolical plot right out of a Tom Clancy novel.

Marjorie Taylor Greene speaks at White Supremacy Conference
in Orlando, Florida February 26, 2022

(she was the surprise speaker replacing Milo Yiannopoulos who was
disinvited because of his past comments about relationships between boys and men)

However, when Rudy Giuliani tells the rowdy January 6^th crowd carrying weapons that the folks on Capitol Hill voting to ratify the election need to see some, “trial by combat,” that may have crossed the line.  When the next Trump supporter, Mo Brooks, speaks and tells this same crowd that if they are true American patriots, they need to, “start kicking ass and taking names,” that line is now in the rear-view mirror.

Rudy, "Trial by combat"

The referenced caselaw limiting protected speech is however much harder to use when the targets are more general and the threats are not necessarily imminent.  Radical speech is protected in this instance.  Even speech that is knowingly false and likely to encourage bad behavior is protected.  The fact that elected officials knowingly promote and support these falsehoods, however, is just something we need to fix at the ballot box, provided you can find one.

Perhaps it is time to address the harm that careless speech has caused and provide recourse for those who suffer injury.  Should we treat elected officials with a stricter set of rules whereby they would risk removal from office or suffer other serious consequences should they be found to knowingly advance falsehoods that are likely to result in violence?  Could this higher standard not require imminent violence to be a factor?

By this measure you may rightly claim that an election was fraudulent, but only if you can provide proof or some sound logic behind your beliefs.  Lacking such evidence or logic all comments would be required to contain such language as, “this is all conjecture on my part, but…”  Elected officials need to be held to this higher standard.  We have too long permitted politicians to “stretch the truth” and now that rubber band of innuendo has snapped and hit us in the face. 

Just ask Nancy Pelosi’s husband, Paul, who suffered a skull fracture when a political terrorist, David DePape, attacked him while trying to kidnap the Speaker of the House.  Just ask Gretchen Whitmer, governor of Michigan, who was the target of a group of 13 political terrorists who wanted to kidnap her to overthrow the state government.  Just ask the two county commissioners and two state legislators in New Mexico who had bullets fly into their homes at the hands of or at the direction of Solomon Pena, a Republican who lost his election by a landslide.  Mr. Pena jumped on the “fraudulent election” bandwagon just as his hero, Donald Trump had done two short years ago.  These violent actions were inspired by lies spread by people who either knew they were lies or had the resources to verify the information but negligently failed to do so.

What happened to our political system that now allows “free speech” to embrace conspiracy theories, lies, damned lies, and even THE BIG LIE, in the name of politics as usual?  In a recent article, a pundit described our once-revered government as a “clown car at a goat rodeo.”  The visual on that is great but it is not one I would want to use to describe an elected body that has sworn an oath to uphold our constitution and run our country.  Making us Great Again is not on their agenda.

Goat Rodeo

The 1958 French movie by Louis Malle titled, Les Amants (The Lovers), was judged to be hard-core pornography by the state of Illinois.  In 1964, the case against the theatre owner, Nico Jacobellis, made it to the Supreme Court.  The movie involved adultery, a female appearing to have an orgasm, and the mere hint of oral sex.  Perhaps an R rating today, or even a PG13.  While the two lower 1964 courts were shocked, the Supremes (not the music group of the same period with 12 number 1 hits), were not shocked.  Two judges had been in the military and had seen action in WWII.  Some of that action was on the battlefield and some of it was in stag-film projection rooms.  They said they had seen pornography and “this isn’t it.” 

The First Amendment and free speech triumphed.  This is the source of, “I know it when I see it.”  As subjective as that decision may sound, it was also a bit convoluted.  It included one majority opinion and four concurring opinions (none supported by more than two Justices) in which each author attempted to clarify what he believed was an appropriate characterization of how the First Amendment should apply to allegedly obscene material.

Leaving the monitoring of free speech up to the likes of Mark Zuckerberg or Elon Musk doesn’t seem like a particularly good idea either.  Neither of them really wants the job unless it is to filter political commentary that they find personally objectionable.     

We also have the flip side of “free speech” where we have individuals professing to be protecting freedoms while restricting them.  Case in point, we have the autocratic overreach of Ron DeSantis who claims to be protecting our children by shielding them from a history he has deemed too WOKE.  From his office as Florida’s governor, he is meddling in school curriculums at all levels including universities.  He is outlawing books in libraries.  He also wants to dictate his restrictions on speech in both public and private business.  His personal views on diversity, inclusion and equity in the workplace will be the law of the land in Florida and he will impose his will on all who reside within its borders.  His Republican view of a small government that leaves businesses to their own devices has an exception.  Private businesses must follow the DeSantis mandates of what they can and cannot say and do with their own employees.  By his direction, private businesses may not discuss race or racial discrimination.

Trying to Govern WOKE

Just as the authors of our US Constitution didn’t anticipate a “well-trained militia” to include an untrained 18-year-old using a “flintlock” capable of firing 600 rounds per minute, the free speech of their day was also quite different.  It is now possible for a 16-year-old “influencer” to sit in his parent’s basement and tweet a message to tens of thousands of “followers.”  That tweet might be accurate, partially accurate, not very accurate, or just fantasy GS.

To all of this I say, let the rodeo begin.  It’s time to release the goats and crank up the clown car.  Just don’t step in any GS, or CS for that matter.