Understanding Freedom of Speech in the United States of America

What the 1st Amendment to the Constitution Does & Does Not Protect

I’ve been thinking a lot about freedom of speech, and the first amendment in general, lately.  Between the uproar over the Confederate Battle Flag, an unprecedented user and moderator revolt at Reddit after the decision to shut down certain groups (the CEO, whom many blame for the ugly affair, wrote an op-ed piece in The Washington Post), a very vocal minority of Americans upset about the Supreme Court granting equality to gay Americans in the Obergefell v. Hodges decision, and world-class comedians such as Jerry Seinfeld and Chris Rock publicly airing their concern about the sanitation of humor for fear of offending people, talk shows, newspapers, radio programs, books, and blogs have all been discussing the limits of personal expression to which an American is entitled under our constitution.

First, let me say that, despite all of our flaws, there are certain things that I believe the United States of America does better than other countries; things that are in the very cultural fabric of who we are as a people resulting from ideals that we consider sacred.  One of them is free speech.  (I’m not even talking about the obvious low-hanging fruit to which we can be compared, such as Russia.  It’s sobering to reflect upon the fact that if I were living in Moscow, this blog would have to register with the state media regulator due to the site attracting more than 3,000 readers a day.  With copyrights held by a limited liability company, merely mentioning that I celebrated my 14th anniversary recently would require an adult filter, marked for mature audiences only; that failure to do so could subject a firm holding the publishing rights to a fine of 1,000,000 Rubles ($17,556 USD) and force it to shut down for 90 days under violation of the propaganda laws.  That, indeed, were I to even travel to Russia, the fact this blog is publicly accessible could get me arrested and detained for 15 days, fined 5,000 Rubles and deported.)  In America, you can say practically anything without fear of being dragged away in the middle of the night, locked in a jail cell for offending the wrong person or holding a politically incorrect position.

This philosophy is encapsulated perfectly by an event that happened shortly after the birth of the nation.  Baron Alexander von Humboldt visited his friend, Thomas Jefferson, during one of the Prussian’s trips North America.  On a certain morning, the Baron stopped by the Cabinet to say hello.  As Humboldt, “sat by the table, among the newspapers that were scattered about, he perceived one that was always filled with the most virulent abuse of Mr. Jefferson, calumnies the most offensive, personal as well as political. “Why are these libels allowed?” asked the Baron taking up the paper, ‘why is not this libelous journal suppressed, or its Editor at least, fined and imprisoned?’  Mr. Jefferson smiled, saying, ‘Put that paper in your pocket Baron, and should you hear the reality of our liberty, the freedom of our press, questioned, show this paper, and tell where you found it.'” [Source]

In the centuries since that occurrence, the Supreme Court has gone so far as to uphold inflammatory speech of the most vile sort provided it does not meet two conditions: 1.) the advocacy is “directed to inciting or producing imminent lawless action,” and 2.) the advocacy is also “likely to incite or produce such action.” [[Source]; also see majority opinion in 1969 case Bradenburg v. Ohio upholding right of Ku Klux Klan leader to denigrate racial and religious minorities.]

The Supreme Court protects free speech to such a degree that the rest of the world, and even many Americans, consider it ridiculous.  In Reno v. American Civil Liberties Union, it unanimously declared that Congress and the President had no authority to restrict Internet pornography as it was a form of personal expression protected by the Constitution.  In Ashcroft v. Free Speech Coalition, it struck down bans on virtual (computer generated) child pornography, arguing no one was harmed and it was personal expression.  In Citizens United v. FEC, it struck down bans on corporations spending money to influence elections, stating that doing so is a form of speech under the theory the constitution protects associations of individuals; that companies are merely collections of citizens working together, entitled to all of the rights of those citizens.  In Snyder v. Phelps, it upheld the right of the Westboro Baptist Church to publicly demonstrate the funeral of an Iraqi war veteran, holding signs indicating God had delighted in his death at enemy hands, much to the distress of the soldier’s father, who couldn’t grieve in peace.  He had to put his son in the ground while these monsters cheered and celebrated mere hundreds of feet from the casket.  In Texas v. Johnson, the Supreme Court ruled that freedom of speech meant the freedom to desecrate or burn an American flag as an act of political protest.

Even our libel and slander laws are more liberal than those in Europe.  In the United States, if you defame someone, truth is an affirmative defense even if your actions lead to their total financial ruin and destruction.  In one case, Johnson v. Johnson, the Supreme Court of Rhode Island reversed a $20,000 punitive damage award against an ex-husband who called his wife a “whore” in a public fight at a restaurant, ruining her reputation in the community, because it agreed with the trial court judge who built a detailed timeline to show that the evidence indicated she was, in fact, a whore.

The founding fathers didn’t whine when exercising their freedom of speech made them unpopular. They dealt with the consequences. During the Presidential election of 1800 when John Adams and Thomas Jefferson squared off for the highest executive position in the land, Jefferson referred to Adams as “a blind, bald, crippled, toothless man who is a hideous hermaphroditic character with neither the force and fitness of a man, nor the gentleness and sensibility of a woman” to which Adams replied that Jefferson was “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father”.  Talk like that, and you’re not going to be welcome at a lot of folk’s tables.

That is the vision of free speech that makes America fundamentally different from our allies, most of whom possess have what constitutional scholars have dubbed “free speech lite”, which makes the promulgation of certain ideas deemed “dangerous”, “unpopular”, or “demeaning” a crime.  Things that would be quite illegal to say, and could get you thrown in jail in places such as Ireland or Brazil are beyond the reach of government in the United States.  Something like the Socialists in France banning Dieudonné from public performance due to anti-semitism simply could not happen here.  No matter how abhorrent the speech, the constitution places it beyond the reach of the Executive and Legislative branches, leaving it in the realm of the public sphere for citizens to deal with among themselves, as they see fit.  Noble as they may sound, were Congress to attempt to pass laws similar to those found in France – laws that forbid inciting racial and religious hatred – they hardly would be off the printing press before the Supreme Court cracked them in two, rendering them powerless under the gavel of judicial review.

To provide a contrast, the Criminal Code of Canada imposes a maximum prison term of two to fourteen years for inciting hatred against an identifiable group, which includes “any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation”.  The Canadian Supreme Court recently upheld these hate speech laws in a unanimous decision known as Saskatchewan Human Rights Commission v. Whatcott.  A Christian preacher was convicted and fined for saying that homosexuality was an abomination; that the Bible called it a sin.  The fact these were his religious beliefs didn’t matter because they were so absurd and harmful to families; citizens; their children.

No matter how misguided Americans might feel a person like that is, the mere notion the government could imprison him for speech is likely to send ice water through the veins.  It’s against our very core convictions.  Born, as we were, from the European Enlightenment, we tend to believe the words Beatrice Evelyn Hall, under the nom de guerre S.G. Tallentyre, wrote about Voltaire’s attitude regarding fellow French philosopher Claude Adrien Helvétius: “I disapprove of what you say, but I will defend to the death your right to say it”.  Instead, we deal with conflicts in constitutional rights through resolution mechanisms such as public accommodation laws; like traffic lights, they prioritize whomever is on the buying side of the table and deny business owners the right to turn away customers who belong to protected classes or have protected status.  (For instance, you can spend all day posting hate speeches against Asian Americans on the Internet, but if you own a bowling alley, you have to serve them, and offer the same terms, as if they were any other customer were they to come into your business and try to book a lane, rent shoes, and use your equipment.)

Freedom of Speech Does Not Protect You from Personal, Political, Economic, Social, Romantic, or Societal Backlash (or Let’s Talk About Flags)

Somehow, over the past twenty years a lot of Americans have come to be under the mistaken impression that the first amendment allows them to say whatever they want without consequence; that their constitutional “right to have an opinion” means a right not to have their feelings hurt or be fired, boycotted, called out, attacked, and generally made miserable for that opinion.  I’m not sure whether this is a result of too many kumbaya singing circles at summer camp, one too many “safe space” workshops on college campuses by social justice warriors, or whether a lot of people failed high school civics, but nothing could be further from the truth.  That is not now, nor has it ever been, how the United States of America works.  Free speech does not entitle you to be free from the consequences of your speech.  It only provides a guarantee that, absent what the courts have called a “compelling governmental interest”, the government cannot restrict your ability to say it nor imprison you for it, no matter how unpopular, hateful, idiotic, or nonsensical it is.

That’s it.  That is the extent of your right; a right that is far more expansive than almost all other nations on Earth.  You can say whatever you want but everybody else – with very few exceptions, which are important nonetheless – can respond, in kind, even if their response is irrational, misguided, or ill-informed.

An illustration: You can own a Confederate Flag (First national, second national, third national, battle, naval jacks and ensigns, or otherwise).  You can display it on your car.  You can fly it in front of your house. You can tattoo it on your arm.  You can write books about how much you love it.  You can set up your own Internet server and build a forum with others who love it.  You can be motivated by any number of reasons – perhaps you’re black and, to you, it represents a regional heritage far divorced from its original roots; perhaps you’re a white supremacist and see it as a rallying symbol for those who believe in preserving the “white race”.  The reason is inconsequential to your first amendment right to do these things as an American.  The government cannot arrest you for displaying the flag.  The government cannot imprison you for speaking out in its defense.

On the other hand, your freedom of speech does not extend to anyone else.  You do not have a right to tell other Americans how they must react to your speech. Just because you can do something doesn’t mean you should.  Signaling theory 101 should tell you you’re going to have a bad time if you go around with it slapped on the back of your tailgate because a majority of the country sees it as a symbol of oppression, slavery, and Jim Crow; the traitorous banner of a group of men so dedicated to keeping black men, women, and children as slaves that Confederate Vice President Alexander Stephens famously announced in the Cornerstone Speech, “Our new Government is founded upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition.”

Display it and you might find your grown children no longer return your phone calls.  Let it fly above your porch and you might discover that the other parents have forbidden their kids from speaking to your grandchildren at school, making them social outcasts to put pressure on you.  Put it by the front door of your retail shop and you might wake up to a failing enterprise as customers abandon you in protest.  Wear it as a t-shirt and you might even find yourself fired from your job.  Your first amendment rights do practically nothing to stop these things from happening even if, as is oft to happen, the reactions go past the absurd and into total inanity.  (Witness Warner Brothers declaring that the one of the most iconic cars in television history, the General Lee from Dukes of Hazard – named after the Confederate military leader – would be digitally altered so the flag no longer appears on the roof’s paint job.  Or, likewise, Amazon banning non-fiction history books about the confederate flag because the cover contained … a confederate flag.  That is a whole new level of cognitive impairment but both Warner Brothers and Amazon are perfectly within their rights to do it despite the troubling implications for re-writing history, denying what was a core part of American culture as it is whitewashed out of existence.)

Losing Your Job When You Exercise Your Right to Free Speech in America

Another real-world example of the American model of free speech at work, perhaps the most talked about situation on far-right forums and media sites: Brendan Eich, the creator of javascript and co-founder of Mozilla.  In 2008, Eich made a financial donation of $1,000 in support of California Proposition 8, which sought to take away marriage rights from gay citizens (marriage equality was legal in California at the time and gay couples had, and were, getting married) by adding to the state constitution, “Only marriage between a man and a woman is valid or recognized in California.”  The proposition was successfully passed by a 52.27% to 47.76% margin, with 2.48% votes invalidated.

He broke no laws.

His side won on election day.

The government took no action against him.

Legally speaking, Brendan Eich did nothing wrong.  He acted, at all times, within the law and exercised his personal freedoms as an American.  Yet, to many, his direct financial support was deeply immoral, and so profoundly evil, they no longer wanted to do business with him on the customer side of the transaction.  Donors indicated they would cut off gifts to Mozilla, not wanting to put cash in the pocket of a man who would deny a dying person the dignity of having their spouse hold their hand in the hospital as they took their last breaths.  Application developers called for boycotts, not wanting to suffer the mere association of ties to a person who would deny children the protection of having both parents on their birth certificate so they could make decisions in an emergency.  Employees threatened to resign, unable to remain civil towards someone who actively supported a campaign that had the effect of causing widows to be denied Social Security benefits for no reason other than to express his disapproval of the person she loved.  In certain circles, using Firefox as a browser was seen as a personal attack, opening the end user up to significant inter-personal conflict with those he or she loved in close proximity, threatening market share as people were more likely to switch to Chrome than hurt a friend or family member.

These combined pressures from millions of other Americans using their own constitutional freedoms of speech and association caused his career to be ruined, his reputation destroyed, and his legacy forever tarnished.  This brilliant man stepped down in an attempt to save the business he had helped create and became a social exile, viewed no differently by a large percentage of society as if he had been a staunch supporter of segregation in the South.  The thinking went that, far from a benign difference in opinion, Eich contributed to a movement keeping war veterans from being buried by their husbands or wives in military cemeteries and causing kids to put guns against their temple, blowing their brains out in desperation; beyond the realm of reasonable conversation and having no place in civilized company.

Is it fair?  Perhaps not.  Several of us have had conversations over the past few years about the unfortunate real-time death spirals that can be set off due to the always-on inter-connectivity of the digital age, when things can go viral quickly.  It can lead to a lot of perceived injustice.  In olden days, many bad decisions were avoided when you had to wait an entire weekend to see someone or drive over to their house before yelling at them, giving you time to calm down.  (There’s a case study involving Washington, D.C. I need to write along these lines, examining how an honest misunderstanding a few decades ago cost one city manager his job.)

Is it understandable?  Yes.  It goes back to what Charlie Munger talks about – the super power of incentive.  I wouldn’t work for someone like Eich, just as I wouldn’t work for someone who supported interracial marriage bans or stripping women’s right to vote; a decision that is mine and mine alone to make as a citizen. If a family member of mine were doing business with him, it’s going to be hard not to take it personally to the point that Thanksgiving is going to be uncomfortable, if I bother visiting at all; again, a decision that is mine and mine alone to make.  The fact this causes others pressure isn’t really my concern or problem any more than I’d worry about their feelings if I were married to a Hispanic woman and they were casually referring to her as a “wetback”.  They are free to say it under their first amendment right; again, the government can’t arrest them for it.  However, I’m free to cut them out of my life, refuse to patronize their business as a customer, and stop making donation to their non-profit group.  (What sane, self-respecting person would behave differently?  Would you allow your spouse, your child, your friend, your sibling, or your coworker to be treated as a second-class citizen due to some immutable trait?  Not if you had any decency or morals.  You’d stand up for them and refuse to associate with the person.  This idea you should politely nod and say, “Well, we all have a difference of opinion” is both naive – does that sound like human nature to you? – and insulting; a modern day, scaled version of the Atlanta Compromise.)

Is it American?  Absolutely.  In fact, when a special interest group challenged public disclosure laws in a Washington State referendum that required voter’s names and addresses to be publicly available, arguing it would cause citizens to fear taking part in the political process – they might lose their job, they might be ostracized from their community, they might be seen as bigots – conservative icon Antonin Scalia excoriated them, all but calling them cowards; saying that being American required a degree of civic courage, especially if legislating.  In his Doe v. Reed concurrence [PDF], Scalia provided a brilliant history lesson on early American political practices, the Constitution, and how our system was modeled after Switzerland; how even voting was public until 1888 when the States “began to adopt the Australian secret ballot” and the court has never said there is a first amendment right to anonymity (in fact, we could easily go to a system where each citizen was required to record his or her vote in the newspaper for all friends and family to see, suffering the social ramifications as he or she may).  The justification is simple: If someone is going to attempt to strip away your right to own a gun, or raise your taxes; pass restrictions on how many pets you can have or tell you that you can’t be at your spouse’s bedside as he or she is dying, you have a right to know.  You can try to change their minds, put pressure on them, take out advertisements or billboards decrying how terrible they are.

Part of the reason the Eich case resonates strongly with older Americans (the demographic in which an overwhelming percentage of the opposition is concentrated) is a combination of the so-called deprival super reaction mental model and the echo chamber mental model; they feel as if something they’ve always held as a given is being taken from them and truly had no idea how extreme their views are outside of a handful of states and their own age group.  If you’re 70 years old living in Alabama, for example, virtually everyone you know, by an 8-to-1 or 9-to-1 margin opposes equal rights.  Whereas, in the rest of the country, those born after 1980, including Alabama’s abysmally low numbers dragging down the average, support equality by a 7-to-1 or 8-to-1 margin.  Eich worked in an industry dominated by young people, in a coastal city.  He should have had the self-awareness to know how his actions would be perceived.

It can be a real wake-up call when people who assume their speech is in the majority realize that isn’t the case; that others take umbrage with their speech and react in kind.  Look at the contract engineer for Ford Motor Company who was recently fired for saying he opposed the automaker’s attempt at creating a more inclusive workspace.  The Detroit Free Press reports he is suing them now, saying his rights were violated.  He truly doesn’t understand his speech is akin to saying, “Why are you hiring all these Negroes?  This place should be for whites.” or that his speech has consequences.

I doubt he’ll find a receptive audience given that the agency hearing his case, The Equal Employment Opportunity Commission, or EEOC, shocked a lot of people a few days ago by ruling Title VII of the Civil Rights Act of 1964 covers sexual orientation discrimination in employment because the discrimination is based upon the sex (a protected class) of the person experiencing the discrimination.  The 17-page decision [PDF] effectively creates a stop-gap Federal Employment Non-Discrimination Act (ENDA) in all 50 states and opens businesses up to significant financial penalties in the event they refuse to hire or promote workers based upon their romantic lives.  It is almost as big a deal as the Supreme Court’s decision in Obergefell v. Hodges declaring marriage equality a fundamental right.

Nevertheless, there are those who freak out at the idea freedom of speech comes with consequences; that they aren’t entitled to anyone’s respect or politeness.  I’ve found no better summation of the sentiment than an older woman who appeared in the pages of Houston’s largest newspaper in recent weeks, the Houston Chronicle.  The story begins:

Overnight, Betty became a bigot – or, at least, that’s how the 74-year-old Brazoria County grandmother fears people will perceive her for opposing gay marriage in a country that has just legalized it nationwide.

As a devout Catholic married for 53 years, it seemed that one day, a family was a mom, dad and kids. The next, it was something radically different. Five judges decided to play God and “destroyed the definition of marriage,” she says.

Suddenly, gays, liberals and young people were celebrating in the streets and everything from the White House to Niagara Falls was set aglow in hues of rainbow.

“It’s like ‘what’s going on here?’ You thought you were on solid ground and you’re not,” Betty told me in a phone interview Thursday. “Everything we believed in is changing.”

[snip]

She has First Amendment rights, but if she expresses her opinions in public, “now I will be the one discriminated against! – being called a bigot!” she wrote.

[snip]

She says she can already see division in her own family and feel pressure from liberal and younger relatives to change her ideals.

[snip]

Betty says she had a gay relative who was welcome in her home but knew her views before he died of AIDS in the 1980s. She had gay coworkers who kept that part of their lives private.

“Now everything’s out in the open and it’s ‘accept us or else.’ Not everybody’s ready for that,” she said.

Betty could learn a thing or two from Justice Scalia.  She can still have her opinion, even openly proclaim it, but she’s so used to getting away with her hatefulness she doesn’t know how to handle the personal accountability.  (One commentator summed it up by saying Betty didn’t wake up a bigot, Betty was always a bigot, nobody said anything to her about it until now).

How much tolerance should Betty be given?  That’s open for debate.  In practice, it’s unlikely she’ll receive any.  Cynically, but accurately, I suppose, many demographers point out that her feelings aren’t worth worrying about for the same reason folks didn’t worry about those who opposed interracial marriage: They’ll almost all be dead within the next ten or twenty years.  To avoid sounding so cold, the kinder term “generational turnover” is employed as a sort of politically non-confrontational way of putting it but the meaning is the same.

One of the Things I Respect About Justice Scalia Is His Willingness to Say Outright What He Believes, Why He Believes It, and Withstand Criticism For It

Despite some significant disagreements with him about the nature of the constitution, and the amount of power the masses should have over the country – I think his deference to the legislature at the cost of individual freedoms is incompatible with many of the safety checks the founders put in place; that James Madison, with whom I tend to align on a lot of issues, would have found his vision for the United States abhorrent – I have a great deal of respect for Justice Scalia’s willingness to state clearly what he believes, why he believes it, and withstand all of the criticism and consequences of those beliefs.

Since we talked about Brendan Eich, let’s go with that.  Take, for example, Scalia’s dissent in Lawrence v. Texas, written back in 2003.  He went far and beyond anything Eich said.  He outright states that he believes the government is entirely within its rights, and behaving perfectly reasonable, when and if it decides not just to refuse to recognize but to criminalize gay relationships even if doing so “does deny equal protection to ‘homosexuals as a class,’” based on nothing more than “the enforcement of traditional notions of sexual morality”; that the fact discrimination against gays had a long tradition in and of itself provides sufficient justification, under his vision of the constitution, for throwing Aaron and me in prison with serial killers, rapists, and thieves, while taking the money and property we earned through seizure with no other explanation necessary than a desire to express disapproval of who we are.

It’s a monstrous position, sure, but it’s at least intellectually consistent and he’s willing to suffer the consequences of professing it so plainly.  I respect that he’s not a coward.  I admire it; find it refreshing even.  To Scalia, being gay is a behavior, not a characteristic.  It’s idiotic – you’re still gay whether or not you sleep with a woman, just as a straight guy would still be straight even if he got drunk one night and fooled around with a guy – but he tries to live these values, especially since he needs to believe them.  This is a man who shipped his own son, Paul, off to a life of celibacy to run religious sexual orientation conversion camps; a son who has spent his career talking about how individuals must fight against their “temptations”, even if it means being alone and missing out on many of the things that make life worth living; how homosexuality doesn’t exist if you choose not to act on those feelings (I’m pretty sure if you dumped a straight guy on a desert island, he’d still be straight despite his complete inability to act on his attractions due to a lack of other people being around him).  If Scalia were to actually accept the evidence that now confirms what gay people have been saying forever – that it’s hardwired into the brain, can be identified with scientific accuracy looking at everything from chemical tests to neurology scans, has no hope of being permanently changed, and is nothing more than a harmless, population-level evolutionary adaptation that doesn’t even influence fertility probabilities to any significant degree thanks to the availability of surrogacy in recent years – he’d have to accept the fact he robbed his child of a life; a child every bit as forceful as the father he’s trying to make proud, now brainwashed into propagating the same harmful conversion therapy that is akin to the types recently declared consumer fraud in the New Jersey court system and outright banned at the insistence of the medical profession in other states given the abject failure rate; conversion therapy that has left a wake of dead bodies, emotional destruction, drug addiction, and broken families behind it.

There is a boldness in Scalia’s courage of conviction that should inspire every American – liberal, conservative, or independent – to own the consequences of his or her opinions.  If the trade-off of making them known or supporting them is worth it, great.  If not, great.  You don’t get to whine about the fact other people are upset with you.

Freedom of Speech in America is Messy, Confrontational, and Sometimes Brutal But I’d Argue It’s One of Our Crowning National Achievements

In my own life, I generally prefer civility and kindness to acerbity.  The latter isn’t going to change anyone’s mind because they can get so overwhelmed with their dislike for you, they can’t think about your argument.  Nevertheless, I would not trade civility for freedom and responsibility.  Like the second amendment protecting the right to bear arms, the power to exercise freedom of speech requires a certain wisdom.  Not used prudently, it can destroy your life and lives of those you love.

You can say whatever you want.  You will also pay the price for saying it.  That is how America works.  That is how America has always worked.  And, if we’re blessed, that is how America will continue to work for as long as she endures.