Finding And Responding To The Media's Favorite Ridiculous And Misleading Free Speech Tropes
from the join-the-fun dept
A few years ago, Ken “Popehat” White put together a very important and useful post that completely dismantled the old trope that “free speech doesn’t mean you can shout fire in a crowded theater.” That line, of course, is so frequently used by those who seek to eliminate freedom of expression, and it’s problematic beyond just for that reason: it’s also wrong. The Popehat post is a really useful way to respond to anyone who makes that argument. A few months ago, the free speech group FIRE (yes the name is important in this context) put up a similarly useful post. And, as we mentioned last week, just recently Andy Sellars put together a great list of all the many times you actually can shout fire in a crowded theater (it’s a long list).
Either way, while the “fire in a crowded theater” may be the most overused anti-free speech trope, it is hardly the only one. Thus, Ken White is back with another important post detailing that and many other such tropes, especially as they’re used in the media. And, importantly, he presents examples of them each being used, explains why they’re wrong, and suggests how to counter the arguments. You should read the whole thing, but here are just a couple of the tropes listed:
Trope One: “Hate Speech”
Example: “hate speech is excluded from protection. dont [sic] just say you love the constitution . . . read it.” CNN Anchor Chris Cuomo, on Twitter, February 6, 2015.
Example: “I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know?hope??that most Americans would.” Edward Schumacher-Matos, NPR, February 6, 2015.
In the United States, “hate speech” is an argumentative rhetorical category, not a legal one.
“Hate speech” means many things to many Americans. There’s no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no “hate speech” exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase “hate speech” had a recognized legal definition, it would still not carry legal consequences.
This is not a close or ambiguous question of law.
When the media frames a free speech story as an inquiry into whether something is “hate speech,” it’s asking a question of morals or taste poorly disguised as a question of law. It’s the equivalent of asking “is this speech rude?”
Trope Five: “Balancing free speech and [social value]”
Example: “The incident raised heated questions about race relations ? and how to balance free speech with protection from discrimination and harassment.” Washington Post, March 3, 2015.
The media’s love of “balancing” stories is a variation on its love of “line between” stories, only more misleading.
“Balancing,” when used as a colloquial description of how courts decide whether speech is protected, is almost always wrong. American courts don’t weigh the value of speech against the harm it does. When speech falls into an established exception to the First Amendment, as discussed above, no balancing is necessary; it can be restricted. When it doesn’t, balancing of its “value” against other interests is almost always prohibited. As the Supreme Court recently said in rejecting the government’s request to create new categories of unprotected speech through balancing:
The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).
Courts occasionally engage in something that faintly resembles “balancing” when they apply different levels of scrutiny to speech restrictions. For instance, the Supreme Court said that Congress could prohibit the burning of draft cards because the government had a substantial interest in the draft system and the law was narrowly addressed to that legitimate interest, and aimed only at the non-communicative element of the conduct (destroying the card) and not the communicative aspect (doing so to protest the draft). But that analysis doesn’t purport to assign a value to the speech. It considers only whether the government has a sufficiently compelling interest in its goal. Moreover, there’s very good reason to doubt that the Supreme Court would ever approve a speech restriction that is content-based ? that is, premised on dislike of the speech ? no matter how strong the government’s interest. The Court has repeatedly rejected calls to do just that, and a focus on the content of disfavored speech (when it’s not within an established exception) is almost certainly fatal to the proposed restriction.
White tells me he hopes to keep this post updated with new tropes, new examples and new explanations, so help out by heading over to his site and submitting more examples of tropes, and let’s help Popehat create the definitive list of such tropes that can then be used to shame the media away from continuing to use these tropes every time they feel like chopping away at the First Amendment.