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!)

Who Gets Defended

Turning from the hate speech issue, not everyone is convinced that the ACLU is defending all the parties it should.  Princeton Professor Keeanga-Yamahtta Taylor is not.  In her op-ed for the New York Times, she cites some examples, one of the most striking was the case of Lisa Durden, fired from Essex Co. College in NJ (!) after explaining on a television news program "why black people might gather for an all-black celebration of Memorial Day." I'm outraged by this, particularly after reading how she was treated by the host of the program.  Do read her story for yourself.

Of course I don't keep any running log of ACLU cases (when would I get to write?), but it does sound as though the ACLU should do a bit of soul-searching. It is also important that we should all stand to make sure that Freedom of Speech is honored. I certainly do not buy Essex Co. College's reasoning in the case of Ms. Durden at all.  Academia should be a place for all sorts of views.  Now, the way they're expressed might be looked at sometimes, but to punish a professor merely for her views?  I don't think so.  Especially for someone on her own time, and in a case in which the college was not identified in the program!  At the very least, knowing he or she is even morally supported can be meaningful.

In addition to us all being vigilant and supportive of Free Speech, some other organizations besides the ACLU could possibly work to assume bigger roles.  One is the Foundation for Individual Rights in Education (FIRE) . Another is the National Coalition Against Censorship .  If we use a broad definition of 'team', then certainly teamwork might help a lot!


Now remember the First Amendment says:  "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."  This is certainly a bulwark against government abuses.  But what about Free Speech issues when a private employer is involved?

First, many folks do not understand that the First Amendment does NOT mention private employers, so generally say, an employee being disciplined or fired for a political speech or social media post would not be a First Amendment issue. However, employees do have some limited protections, generally from guidelines from the National Labor Relations Board (NLRB).

According to Gail Lin of Outten and Golden, LLP, "For the most part, the NLRB has taken the position that workers cannot be fired for social media posts that would be considered "protected activities." This can include complaining about working conditions, discrimination and harassment, or using social media as a means to organize or form a union."  She also notes employment law is behind the growth of employment law has lagged behind that of social media in this overview post.

Yes, an employee can be disciplined or fired for speech or for social media postings (indeed,haven't we all seen stories of folks fired for social media posts?).  Going forward, as noted by Ms. Lin, case law and also guidance from the NLRB needs to play catch-up here, so that at least the parameters employers and employees must navigate in this area are clear.  And I think we should also advocate  for employers to also use a bit of common sense and forbearance. For example, I certainly do not agree with the employer of Kate Nash, whose case is mentioned in that last link.  She was fired for responding to a student's tweet pointing out that if school were closed, how would he or she learn to spell the word so blatantly abused in the student's tweet.  Instead of seeing this as the teachable moment Nash had thought it was, they asked her to delete her tweet and apologize to the student - the director of communications for the school district actually did. Can you believe it?  Apologizing to a student for trying to educate them a bit (and yes, sometimes part of education is pointing out "mistakes"; the student involved didn't even mind!)?  For more on Nash's story, read here .

Free Speech, free expression are still so important to us today.  However, in the 21st Century, we have a new landscape dominated by instant communications and social media. We would be wise to take this new reality into account when dealing with current issues related to this precious Constitutional right; and also have it in mind when dealing with such issues in our employment law.

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