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Freedom of speech

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I do not agree with what you say, but I will defend to the death your right to misattribute it to Voltaire.

Freedom of speech is the concept that any person can communicate with any other person, or persons, without fear of unwarranted governmental restriction or censorship. Any government intervention or restriction must be specific, and have a defined purpose beyond simple censorship. It is a concept integral to liberal democracies, and indeed Western civilization. The restriction of this right is essential to totalitarian regimes.

The ability to freely speak your mind is widely seen as a natural right, in other words a government (or any other institution) can't grant you this right, only take it away. However the protection of this right is written down in many legal documents. It is guaranteed under Article 19 of the Universal Declaration of Human Rights, and in the First Amendment to the United States Constitution (part of the Bill of Rights). These laws prevent the state from infringing on your freedom of speech, but do not mean that any other institution has to protect your freedom of speech, and as such does not (as it's often mistakenly interpreted) mean that a private business cannot tell employees what they may or may not say, that a public club cannot impose some restrictions on types of speech at their center, or that a privately owned Internet forum may not moderate messages for content or viewpoint. It is sometimes erroneously assumed that freedom of speech is simply the protections afforded by these laws, but is actually a much broader concept than any laws.


[edit] History and philosophy: the American tradition

In the United States of America, the concept of "freedom of speech" is deeply rooted in the national consciousness, and not easily assailed. Built on a series of formalistic guidelines, the basic touchstone of the entire construct is the idea of "imminent lawless action" - unless speech threatens to incite this, it is considered "protected." What exactly counts as inciting imminent lawless action, is another area entirely.

Interestingly, the current idea of "free speech" is as much a product of the Fourteenth Amendment as the First Amendment. Consider the text of the First amendment:

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.

It is absurdly simple! Congress cannot "abridge" speech. Based upon the Fourteenth Amendment, the Supreme Court incorporated this right in Gitlow v. New York. In other words, incorporation of the right grants carte blanche to anyone to say whatever they please on American soil, a right that has to be respected by any level of government. In a modern interpretation, this rule includes any government agency, public department or cabinet member. Therefore, private organizations can sanction and apply speech restrictions upon its members.

Necessarily, restraints must be "read into" the Amendment. What were those restraints, judging from the viewpoint of the framers of the amendment? This inquiry is also thoroughly unhelpful; at different points, the founders split on whether certain speech acts were "protected," or not. In short, the originalist inquiry goes both ways. Clearly, the first amendment then becomes an exercise in judicious line-drawing, resulting in the below complex structure.

[edit] Seditious advocacy

Seditious advocacy is the support of policies antithetical to the government, or the speech act of hindering a government project. For example, protesting outside an army recruiting station is seditious advocacy: it actively impedes the government's efforts to recruit and fight a war. Similarly, wiring the plans of the Pentagon to Osama bin Laden would surely be seditious advocacy. Where should the line be drawn?

Seditious advocacy was historically unprotected speech; however, the Founders' generation fought vigorously on this issue.[2] After a tumultuous experience in the World War I, the following formulation emerged: unless speech threatens to incite "imminent lawless action," the speech act is protected.[3] The danger, it is thought, must be sufficiently large to trigger dropping the amendment's protective shield. Further, the speaker encouraging lawlessness must have "specific intent" to "expressly incite" lawlessness: he must not merely be arguing "in favor" of lawlessness as an abstract idea, but must actively be encouraging an illegal act, with intent to do so.

In short, if a speaker (1) intends to promote lawlessness, (2) expressly incites the same, and (3) the lawlessness provoked presents a (grave and) "clear and present danger" to government interests, the speech act is not protected and may be prosecuted. Otherwise, the Constitution presumptively shields a speaker for his actions. This is a large shield indeed, and has stayed strong for at least 30 years. In fact, it is considered the cornerstone of American free speech jurisprudence.

[edit] Obscenity and profanity

Traditionally, the government held power to prohibit the obscene and the profane. As recently as 1800, it was considered acceptable for the state to punish blasphemy. Needless to say, things have changed a lot. The US has moved from "I know it when I see it," to merely bleeping "the seven words you can't say on the radio" from on-air broadcasts and basic cable. If one pays for premium cable channels, the dirty words will be plainly evident.

[edit] Content-neutral restrictions

The "content-neutral" doctrine stands for the principle that the government can regulate speech, within reason, so long as it does not take a side in an intellectual debate - that is, so long as it does not take a position as to content. Thus, American governments traditionally enjoy wide discretion to regulate the "time, place, or manner" of speech.

The rule of the public forum is an outgrowth of "content-neutral" doctrine: under this rule, the government is generally powerless to regulate speech in traditional public fora such as streets and parks, since these areas are property held in the public trust for political use.[4] However, the public forum rule has important qualifying rules:

  • In a "limited designated forum" - that is, government property opened to public use for a particular purpose only - subject matter regulations are appropriate. Thus, a city may forbid obscene speech or advertisements in publicly owned transportation vehicles, such as streetcars.[5]
  • Similarly, public school facilities opened to the public as after-school meeting places are limited-designated fora.[6] Thus, subject-matter regulation is appropriate in administering public school space requests. However, discriminating against religious speech, while seemingly a subject matter regulation, is apparently a forbidden viewpoint regulation: thus, public schools cannot exclude religious groups from using their facilities after school.[7] If that sounds absurd, it's because it is.

At the extremes, though, the general acceptance of "content-neutral" regulation can become the exception which swallows the rule. During the Bush presidency, a popular "time/place/manner" restriction, especially used to regulate protesters during Republican rallies, was the confinement of protesters to "free speech zones" isolated geographically from the site of the event being protested. While this is, technically, a place and manner regulation, the function of the rule is to eviscerate the right to speech: government power to reasonably regulate speech cannot be allowed to confine speech to the corner of the world where it is least effective, after all.

[edit] Incidental effects issues

As a general rule, when an act is proscribed by a law for general application, its prohibition cannot be challenged because of the incidental effects of the law on speech activities. This is to say that you can't shoot someone, then claim it's "free speech": if laws against murder incidentally burden free speech rights, the effect is outweighed by the necessity of the rule of general application.

The rule that comes from United States v. O'Brien[wp], on this matter, is that where the government's interest in a law of general application is unrelated to the suppression of speech, the general law cannot be challenged because it chills speech. Thus, a law banning flag burning as desecration would be unconstitutional; however, a law banning outdoor fires, and incidentally touching upon flag burning, would be constitutional.

[edit] Limits on freedom of speech

The general public's understanding of the protections of free speech afforded in the United States by the Constitution are generally broader than the protections actually are. Conservatives are known for defending their pundits by stating that "it's a free country" - pundits can say what they want, without being "censored" for their beliefs.[8] Ditto, supposedly scientists being paid to produce science can defend their poor science on the grounds that "it's a free country," and they can say what they want to say.[9] Technically, yes. The right to free speech is guaranteed by the Constitution. But, it is guaranteed vis a vis the government - not necessarily vis a vis private individuals. While individuals have a high level of protection of their speech against government censorship, these high levels are triggered only by state action - that is, the government's actual use of power. On the contrary, just as in discrimination law, lower levels of protection attend non-state based limitations on speech. While the Constitution prevents the government from punishing you for your speech (generally unless such speech has as its purpose "imminent lawless action"[10]), the Constitution also cannot protect you from a private organization censoring your speech by taking some private, non-state action against you.[11] In fact, the First Amendment has been held to protect the freedom not to promote views other than one's own.[12]

So while it's a free country, and pundits may be pundits, and say what they will, they need not be surprised, and may not claim the First Amendment as a protection, when they are fired for making ridiculous statements. One must also note, too, that the assertion to the contrary by conservative networks only triggers when one of their own gets in trouble - when someone else starts to say something controversial, all of a sudden, they seem to back down.[13][14]

[edit] Lying

It actually depends on how, when, and where one lies, but lying can be illegal if your words hurt either individuals (e.g., through fraud) or society at large. This could include "yelling 'fire' in a crowded theater" (or pulling the fire alarm in said theater as an artistic stunt), some hoaxes, selling miracle medical pills as a cure for diseases without testing to make sure the claims are legit, or telling you what's in them, or telling investors in your company that you can double their money in under a month, as long as they keep recruiting more investors. Writing false information on government forms is not protected free speech. Lying in an attempt to deceive the justice system could be either obstruction of justice (if you do it to the police) or perjury (if you do it under oath in court). Committing any of these forms of "free speech" could result in serious civil or criminal penalties.

[edit] Comparative limits on other topics

The limits of free speech depend on the values and leaders of a society. Most nations have copyright and patent laws preventing the dissemination of stolen ideas. Many countries also have libel and slander laws of varying strengths. For example, in the UK, if sued, one must prove that you haven't slandered someone. In the U.S. the burden falls on the plaintiff. If speech is judged to cause an imminent threat, it is also sometimes regulated. Obscenity and hate speech are also areas of active debate.

In the U.S., the default position is usually in favour of free speech. For example, speaking or writing ill of a public figure is not slander/libel unless it is done with actual malice, i.e., with knowledge that what is said is false or in reckless (not merely negligent) disregard of its truth or falsity.[15] Speaking ill of a book, website, or other publication is also not libel, as it expresses an opinion.

[edit] Imaginary rights relating to freedom of speech

The idea of freedom of speech is often taken to extend far beyond the actual act of speech, or taken to be much more limited than it really is. The former is known as the "right not to be criticized" and the latter as the "right not to be offended."

[edit] Right not to be criticized

Oftentimes a media figure will say something incendiary, an academic will publish a controversial paper, or a newspaper will publish a polemic piece, which triggers immense backlash and criticism. The original author and their ardent defenders will accuse their critics of trying to "censor" them, insisting that their right to freedom of speech or press is under attack. In the U.S., this is often invoked by Fox News contributors and their ilk. In reality, they are arguing that their right to freedom of speech also guarantees a right to be free from criticism, conflating strong disagreement with the contents of an act of speech with an attack on their right to speech itself.

[edit] Right to an audience

Evangelists of any type seem to think that their message is so important that any attempt to shut them up, no matter how off-topic or inappropriate it may be for the venue, is unacceptable censorship. It doesn't really matter what the belief is, although evangelists for fundamentalist religions and conspiracy theorists are the most likely to try to do this, and scream like whiny children when told to stop.

Similarly to the above, some will complain that an individual, group, or organisation is denying their right to free speech by banning them from attending something, or saying something while there. In the U.S., this is fallacious as their legal right to free speech is guaranteed by the First Amendment, which only bars the federal and state governments (including local governments, whether in Dillon's rule states or home rule states) prohibiting speech. Independent parties, such as universities, clubs and shops, are free to enforce any standard on speech that they wish.[16] You don't have the right to incessantly scream "faggots" at a GSA meeting.

Also, with private media organizations, what appears on their outlets is bound by their terms, something that flew over the heads of those who accused the ABC network in the US of "censorship" for not wanting Toby Keith to perform his September 11-themed song "Courtesy of the Red, White, & Blue (The Angry American)" to open ABC's 2002 Independence Day special. The song included lyrics, "You'll be sorry that you messed with the U.S. of A. 'cause we'll put a boot in your ass - it's the American way."[17] Peter Jennings, ABC's evening news anchor and host of the special, responded to such charges by saying that opening the show with Keith's song "probably wouldn't set the right tone", as a primetime Independence Day special should be positive and fun, not "angry".[18] Bill Maher has accused activists who inform advertisers of the Rush Limbaugh radio show about questionable content on the show of being against free speech—which is absurd, since free speech does not entitle one to be commercially subsidized for it.[19] Furthermore, just because a mainstream outlet like a terrestrial radio station or major television network excludes content doesn't censor the content, because the creator can alternatively produce content for an independent media outlet, Glenn Beck's The Blaze empire of a television network, radio network, and website for instance.

There have also been accusations that Condoleezza Rice and Ayaan Hirsi Ali were censored by universities that decided to rescind invitations to them at commencement ceremonies. That is nonsense, unless said universities also prohibited student groups from bringing in those speakers. Furthermore, commencement speakers often voluntarily cancel appearances because of student protests.[20][21]

[edit] Right not to be offended

We'd like to start this section with a hearty "fuck you" to "Benjamin" from twitter!

The right not to be offended is an alleged right that is sometimes invoked, either as pseudolaw or in appeals to "common sense," to counter or challenge freedom of speech.[22] This is sometimes in response to racism, sexism, homophobia or other forms of discriminatory language, sometimes a response to perceived blasphemy or insults to religion, and sometimes simply a case of political correctness, conservative correctness or other forms of thought policing. The precedent of the Supreme Court explicitly denies the existence of such a right.[23][more detail please]

[edit] State of free speech in other countries

  • Australia requires that the government approve all video games before they are sold in the country, and now seems on its way to making an Internet censorship machine to rival the Great Firewall of China.[24]
  • Canada has a ban on hate speech, which has recently stirred up a number of high-profile controversies:
    • In 2002, a fundamentalist named Stephen Boissoin wrote a letter[25] into his local paper, the Red Deer Advocate, criticizing gay people for being on the fast train to hell. He was convicted and ordered to write a letter of apology.[26] This was later overturned on appeal.[27]
    • Human rights complaints were made against a magazine, the Western Standard, that published the Jyllands-Posten Muhammad cartoons. Ezra Levant, publisher of the magazine, was brought to a hearing before the Alberta Human Rights Commission, and, despite his best efforts, was acquitted.
    • Maclean's was also the subject of a human rights complaint for publishing "Islamophobic" material. The human rights officer assigned to the case said "Freedom of speech is an American concept, so I don't give it any value." You could imagine the response to that.
  • Europe also limits speech. The European Convention on Human Rights[wp] guarantees free speech in matters of public interest; this risks powerful pressure groups defining the public interest their way. Laws against racist speech, Holocaust denial and hate speech of varying kinds exist in many European countries.
    • In the United Kingdom many types of speech are potentially hate speech and potentially illegal. Also in the UK, a 2006 law banning "incitement to religious hatred" was strongly criticized by some comedians (who probably remembered the flap surrounding Life of Brian) and by the National Secular Society. Liberty, the UK equivalent of the ACLU, is uneasy over many restrictions to free speech.[28] [29]
    • In the United Kingdom, it is illegal to sell video recordings that have not been rated by the British Board of Film Classification.
    • In Sweden, you can get in hot water for preaching an anti-gay sermon.

[edit] Fred Phelps

A practical test of a nation's commitment to free speech is the degree to which it will tolerate Fred Phelps. Several countries, including Canada, Sweden, and the U.K., completely barred Phelps from entering the country; in the United States, the "Respect for America's Fallen Heroes Act"[wp] banned Phelps from picketing funerals in national cemeteries, although this law has yet to be challenged in the courts and the ACLU maintains that such laws are unconstitutional.[30]

[edit] Galactic law

Eating the moon is not protected speech.[31]

[edit] Frea Speach

A term developed in the anti-spam community from a typo by a two-bit spamlord, "frea speach" can profitably be used to describe any perception of a right to keep shovelling bullshit at people without fear of being corrected or even challenged. Health freedom is a similar phenomenon in alternative medicine circles. Some social justice advocates also use the expression "Freeze Peach" in reference to people who erroneously believe that negative responses to offensive, harassing, or threatening speech such as being blocked from a blog's comments section or targeted for an advertising boycott constitutes a violation of their free speech rights.[32]

[edit] See also

[edit] Footnotes

  1. sketerpot on LessWrong about Evelyn Beatrice Hall
  2. See the Alien and Sedition Acts.
  3. Brandenburg v. Ohio.
  4. Hague v. CIO.
  5. Lehman v. City of Shaker Heights.
  6. Rosenberger v. University of Virginia.
  7. Lamb's Chapel v. Center Moriches Union Free School District.
  8. Here's Newsbusters: "NBC's Today Asks, Should Coulter Be 'Taken Off the Airwaves Permanently?" [1]
  9. Ben Stein thinks so. See our article on Expelled: No Intelligence Allowed.
  10. Compare Schenck v. U.S., 249 U.S. 47 (1919), with Brandenburg v. Ohio.
  11. Generally. There are always exceptions, but the above referenced are not any such exception.
  12. Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1986)
  13. And here's Newsbusters again: "Olbermann Likens Newt Gingrich to Nazis, Defends Terrorists’ First Amendment Rights" [2] Hmm.
  14. Remember Jerry Falwell suing Larry Flynt & Hustler over a little joke? Where was the "it's a free country" cry from the right, then? (Now, this is a different matter because the Constitution does actually protect your ability to insult public figures... at a very high level.)
  15. See New York Times Co. v. Sullivan, and Hustler Magazine v. Falwell.
  16. PZ Myers, "Drowning in noise: How accommodating nonsense poisons our discourse."
  17. New York Post, Wail on Jennings. June 26, 2002.
  18. Courtesy Of The Red, White & Blue. CBS News: October 28, 2003.
  19. The Joke Is On Bill Maher, Who Doesn’t Understand Free Speech
  20. PZ Myers, If only they understood what free speech is…
  21. Adam Weinstein, In Defense of Protesting Commencement Speakers
  22. "There is no right not to be offended", from The Hindu
  23. Opinion in Snyder v. Phelps
  24. See the Wikipedia article on Internet censorship in Australia.
  25. The letter
  26. Archive copy at the Wayback Machine
  27. Boissoin v. Lund, 2009 ABQB 592 (CanLII)
  28. Free Speech and Protest
  29. Speech offences
  30. http://aclu-ky.org/content/view/35/2/
  31. Earth v. Giant Space Iguana, cited in Zoidberg v. Earth (Ginsburg, J., dissenting).
  32. http://www.patheos.com/blogs/daylightatheism/2013/05/free-speech-vs-freeze-peach/
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