Friday, August 18, 2017

Free Speech Indeed?

Greetings again, dear readers.  What a horrible heartbreak the situation in Charlottesville was - the bigotry of white supremacy so in-your-face and the loss of the life of Heather Heyer, who stood against hate. Surely we must all condemn the hatred and violence; then we must, as a society, come together to transform it into the America we know it can be.  And our leaders should do better. No, 45, we know on which side the hatred and violence were on; and ah, the news cycle these days: first your "too little too, late statement", then a racist tweet, followed by a defense of neo-nazis.

But there are other issues I wish to write about here, thinking aloud digitally, in a sense. This post was prompted by an article from Glenn Greenwald at The Intercept: "The Misguided Attacks on ACLU for Defending Neo-Nazis' Free Speech Rights in Charlottesville."

Greenwald's main thesis is that the ACLU (and full disclosure, I did renew my membership, finally, after the election) must defend all free speech rights, especially unpopular speech, where he says "free speech battles are always and by definition fought." I thought the best section of the article was his discussion of the ACLU actually defending the idea of legal precedent.  He notes that if you genuinely care about the speech of those often marginalized, should be "genuinely afraid of allowing anti-free speech precedents to become entrenched that will then be used against you when it’s time to defend free speech rights." Greenwald also uses a similar arguments concerning why the ACLU should defend these awful folks - basically, allow censorship or state control of speech in cases you don't like might erode the defense of cases you like.  Very reasonable, I think, but still I feel the discussion is just a bit incomplete.

What Gets Defended

Now let's make no mistake, I am a very strong supporter of Freedom of Speech, but I am very troubled by the type of hate speech now and the groups which are doing it. The vile rhetoric of these white supremacists is bad enough and  is no doubt hate speech. but as can be noted from the link above, these haters are often armed, which causes many of us much concern.  They have been know to go to great lengths to troll critics online, even finding out where they live and harassing them there. Their rhetoric sometimes also blatantly espouses or hints at violence.

Now there have long been debates about hate speech vs. protected speech. Ostensibly, even hate speech is protected (see Street vs. New York, 1969 - the flag burning case, and Matal vs. Tam, 2017) A key source of legal guidance is also the decision Brandenburg vs. Ohio.  The finding by our SCOTUS in was: "it was held that the constitutional guaranties of free speech and free press did not permit a state to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy was directed to inciting or producing imminent lawless action and was likely to incite or produce such action" Again, the possible harm related to such speech must be imminent.

What I find slightly problematic with that precept is we are now in the age of instant digital communications and social media.  "Speech" in one place or time is so quickly spread across hours and miles.  And as we saw in the Portland attack, which saw two rescuers killed, harm may not come during or near a rally.  Cornell William Brooks, former NAACP President, when discussing the aftermath of the Charlottesville tragedy observed that our notorious 45 should stop "signaling and engaging in messaging, racial dog whistles with the Alt-right. The fact of the matter is the whistles he blew during the campaign were answered in Charlottesville, and someone lost her life."  (see this article

I'm not sure I have a ready answer, but I do feel we need to consider the ramifications of this new age in the way we answer the question of what speech is protected, and how we handle the issues associated with Free Speech.  Maybe we should require venues to post warning signs or make announcements such as: "Speakers at this event may hint at or advocate acts that are illegal.  Do not engage in them later." I'm not sure whether such warnings would have any effect (do graphic cigarette warning labels have an effect? - some research says 'maybe'), but you can't say I'm not doing some "out-of-the-box thinking" here!  There was also a report that Facebook will begin deleting 'threats of physical harm."  Such initiatives might actually help the cause. (BONUS if you've made it this far: here's an op-ed about the aftermath of Charlottesville and why Brandenburg vs. Ohio may be of quite some import!)