If a Tree Falls in the Forest…

As I sit here on this rainy Oregon afternoon, the funeral for Elizabeth Edwards has just ended. She lost a battle to cancer that was diagnosed the day after her husband was nominated for Vice President on the Kerry ticket in 2004. She chose to support her husband for a Presidential run despite the eventual  discovery of his philandering in 2006. Elizabeth Edwards never lost her moral compass. She was never a politician but she was a template for humanity. We should all be so lucky.

But that’s not what this article is about. There is a ‘church’ in Topeka, Kansas that holds some pretty militant views on homosexuality and other topics. They have shown up at funerals of US servicemen to protest. They brought signs that said “God hates Fags” and “Thank God for Dead Soldiers.” They planned to do the same at Elizabeth Edwards’ funeral. Several ordinary citizens arrived in North Carolina to block the Westboro congregation from interrupting the funeral. Gratefully, the protest never materialized.

This article is about the first amendment. Does this small group of people from Topeka have a first amendment right to do such despicable things? Did the whacked-out guy in Florida have a right to burn Qu’rans as a form of protected speech? And what about Julian Assange?

What if Woodward and Bernstein had not leaked information on the decidedly corrupt Nixon administration? What if the Pentagon papers hadn’t exposed the fallacy of the Vietnam War? In regards to WikiLeaks, is Julian Assange guilty of treason or should he be regarded as nothing more than a whistleblower (not that it matters, Sweden appears perfectly content to throw him under the bus for other issues)?

Where does the law draw a line in the sand over the freedom of speech?

Well, this has been tested in court on a few occasions but not as much as you might think. The courts seem more willing to leave the topic open to interpretation than they are on making a decision defining the boundaries of what is free speech and what is not.

The most often cited example is the yelling fire in a theatre scenario. This is a misinterpretation of Justice Holmes rendering of Schneck v. United States from 1919. The key word missing is ‘falsely’. Holmes’ finding was actually based on the ‘clear and present danger’ idiom revolving around recruiting during WWI.

This judgment was actually later overturned in Brandenburg v. Ohio which  dealt with the intentional misuse of speech to achieve an outcome, ie: inciting a stampede or riot. The law similarly regards bomb threats and falsely pulling the fire alarm to empty a building . For example, it’s perfectly legitimate to yell ‘fire’ in a crowded theatre if it actually is on fire.

Freedom of expression in the United States was based on several philosophers, many of whom influenced our founders at the birth of the nation; most notably, Thomas Jefferson. They were Locke, Milton , and John Stuart Mill. In ‘On Liberty’ Mill argued that:

“…there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.” Mill further states that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment. However, Mill also introduced what is known as the harm principle, in placing the following limitation on free expression: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

Mill in particular stated that freedom of speech includes,

  • the right to seek information and ideas;
  • the right to receive information and ideas; and
  • the right to impart information and ideas,

whether spoken, in print, or in art (this would influence the foundation of copyright law as well).

So, are there instances that speech can be limited? Yes. I’ve already mentioned one but here they are as follows:

Clear and Present Danger.

Will this act of speech create a dangerous situation? The First Amendment does not protect statements that are uttered to provoke violence or incite illegal action.

Fighting words.

Was something said face-to-face that would incite immediate violence?

Obscenity.

This one has been the most contentious and challenging. For how do you define obscene? I used to be a staunch advocate of non-censorship of any speech until I had a daughter that liked listening to hip-hop and became concerned with her being influenced by these artists before I had a chance to address with her some of the issues they sing about.

Conflict with Other Legitimate Social or Governmental Interests.

Does the speech conflict with other compelling interests? For example, in times of war, there may be reasons to restrict First Amendment rights because of conflicts with national security.

Time, Place, and Manner.

These regulations of expression are content-neutral. A question to ask: Did the expression occur at a time or place, or did the speaker use a method of communicating, that interferes with a legitimate government interest? For example, distribution of information should not impede the flow of traffic or create excessive noise levels at certain times and in certain places.

Based on the legal criteria, the Westboro Church has the right to voice their opinion, whether I like it or not. You might make the argument that physically protesting at a funeral is an assault. And frankly, this brings up a point I have often thought valid under the time, place, and manner maxim that Mill left out: when is speech welcome? What if I don’t want your opinion? Can you stand in front of my house with a bullhorn and shout your anti-abortion opinions at me all day? At what point does your freedom of speech become an assault?

Did the Qu’ran-burning guy have the right to burn the holy Muslim book? One could argue that inciting violence to our soldiers by Muslims in Afghanistan constituted a clear and present danger, but broadly, yes, he had the right to do that.

And what gives FOX News [sic] the right to report distortions of fact and outright lies? Shouldn’t they be held accountable?

And has Julian Assange committed treason or has he exposed things that we citizens should know about wrongdoing in our government? When is speech a boon to society and when is it a threat to national security? These are often difficult questions to answer. Personally, I think Assange is nothing more than a drama queen looking for attention. He didn’t release anything damaging like details about our military capabilities and weaknesses. He mostly let stuff out that says we think Kim Jong-Il is a nincompoop. Like we didn’t know that already.

He did release the rather disturbing footage of Americans killing civilians in Iraq as though they were characters in a video game. As an American citizen (and a human being), I am outraged by that video. If we’re going to invade a sovereign nation, we need to see stuff like that. We should feel the costs of our actions.

I am no closer to answering the underlying question regarding restriction of speech than the law has been. We must live with people like the Westboro Baptist Church and the Ku Klux Klan and I echo the words of Evelyn Beatrice Hall: “I disapprove of what you say, but I will defend to the death your right to say it.”


About Mr. Universe

Mr. Universe is a musician/songwriter and an ex-patriot of the south. He currently lives and teaches at a University in the Pacific Northwest. He is a long distance hiker who has hiked the Appalachian Trail and the Pacific Crest Trail. He is also an author and woodworker. An outspoken political voice, he takes a decidedly liberal stance in politics.
This entry was posted in Uncategorized and tagged , , , , . Bookmark the permalink.

25 Responses to If a Tree Falls in the Forest…

  1. filistro says:

    Mr. U… I really don’t know why you would defend to the death somebody’s right to say “God Hates Fags.” Really… what national good flows from people being allowed to say something so hateful, offensive… and dangerous?

    I’ve mentioned Canada’s hate speech laws laws here in the past. They seem eminently reasonable to Canadians who are puzzled by the idea that people would challenge them.

    Sections 318, 319, and 320 of the Code forbid hate propaganda.[3] “Hate propaganda” means “any writing, sign or visible representation that advocates or promotes genocide….

    Under section 319, an accused is not guilty: (a) if he establishes that the statements communicated were true; (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

    It could be reasonably argued that displaying a sign reading “God Hates Fags” is advocating genocide, since people of faith could feel impelled to “destroy” that which “God hates.” And none of the exceptions in Section 319 would apply… so a person displaying such a sign could be liable for 5 years imprisonment.

    To Canadians, that’s exactly as it should be.

    (The Holocaust began with agitators being freely allowed to calls Jews “vermin”… which is another species that, the name implies, should be “destroyed” and is thus an advocating of genocide.)

  2. Mr. Universe says:

    I think the spirit of Mills’ argument is that you cannot truly have ‘free’ speech unless you are willing to allow all of it. The good, the bad, and the ugly. For example I wouldn’t be having this conversation if there weren’t some idiots in Kansas spouting off this ridiculous nonsense. Nor would those idiots have the benefit of hearing my counter arguments. That exchange of ideals would never take place.

    I agree with all of the things filistro says; statements like ‘God Hates Fags’ are hateful, offensive and dangerous (and I would add, incorrect). But how are we to determine that unless we allow them to see the light of day? I actually think it’s useful to expose them and take a principled stand against them.

    This is my problem with FOX. They have a big bullhorn. They can lie louder. More cowbell, if you will. They can also filter responses to the lies. But I would never vote to censor Glenn Beck. If anything, he makes it easier to expose the lies from his absurdity.

    One of our commenters here is noted for ferreting out fact from opinion. Several people at the turn of the last century tried to make ‘fact’ that jews and black people were inferior. This was, of course, wrong. Same for gays. God doesn’t hate gays; some really twisted people in Topeka do though and that’s where this conversation needs to be directed. Not suppressed. But we can’t have that discussion unless we hear from the most offensive among us.

    I am on the fence about Assange. The fact that he did it for no monetary gain makes me think it was about principles. Was it right? I’m not entirely sure.

  3. Mr. Universe says:

    Hmmm, not many responses. Must’ve hit a sore spot.

  4. filistro says:

    Mr U… remember how tickled you were last spring when Ann Coulter fled Canada without fulfilling her speaking engagements?

    Well, that wasn’t just because students mounted mass protests at the universities where she was scheduled to speak (although that did happen in several cities.) It was because she got a warning letter from the Canadian government that if her lectures contained incendiary attacks against Muslims (as the advance promo indicated they would) then she would stand at risk of being tried under Canada’s hate speech laws. Instead of staying to make herself a free speech martyr, she decided to get out of town.

    Much high-fiving and general rejoicing ensued. Canadians LIKE their hate speech laws.

  5. From my view, banning speech based on content is more dangerous than the content itself.

    Once government gets to choose allowable content, it is easy for that to evolve to anti-sedition laws, which ultimately chill the very speech necessary for a society governed by consent.

  6. dr_funguy says:

    In general the answer to the excesses of free speech is:
    more free speech.
    There is room for a debate on how to provide fair access when publically owned or subsidised resources (cable bandwidth, the airwaves) are employed in deploying your message… the was the reason for the fairness rule. And for public access radio and TV.

  7. filistro says:

    @Michael… From my view, banning speech based on content is more dangerous than the content itself.

    And there, in a nutshell, you have the reason why Americans won’t be flooding the borders to get into Canada, even in the event of a Sarah Palin presidency. There is just a totally different mindset between the two countries on so many issues.

    It’s very subtle ( a lot of my American friends tell me in amazement, “It looks just like home up here, only cleaner“…) but if you spend a lot of time in both countries, as I do, the contrast is quite stark. It revolves, I think, around different visions of individual freedom.

    I would say the American view is romantic, while the Canadian one is practical. Americans like to kid themselves that they have total freedom to do and say whatevery they like, and that’s what they will “live and die for.” Canadians believe that’s just silly… NOBODY in a social setting really has that kind of freedom, so why pretend you do? Instead, why not use your freedom to freely decide together on a set of sensible laws that make living together more pleasant?

    And that’s what they do. I know it’s anathema to Americans…. but it really works.

  8. filistro,

    NOBODY in a social setting really has that kind of freedom, so why pretend you do?

    Because it’s not the job of government to enforce good social graces. Social pressures do that job.

  9. filistro says:

    @Michael… Because it’s not the job of government to enforce good social graces.

    The appropriate rejoinder…. refraining from suggesting in public that a visible minority should be forcibly eliminated by the majority is not a “social grace”. It is a social necessity.

  10. shortchain says:

    I wonder if Mills et al, when they expressed their desire for free speech, intended for it to extend to the kinds of demonstrations where the unwashed screamed at the representatives of law and order, or if what was meant was the orderly discussion of ideas in Parliament, or in the press of the day, or perhaps the debating rooms at University.

    I have a strong suspicion that even these bastions of free-thinking would have been horrified at the idea of demonstrating at funerals.

  11. Mr. Universe says:

    Actually it’s pretty amazing that there is civility in our Congress (aside from that caning in the 1800’s and Joe Wilson). Many other govts. devolve into fisticuffs. I guess Robert’s Rules of Order works.

  12. dcpetterson says:

    A couple of quick takes:

    On the question of why we shouldn’t ban offensive speech — basically, speech that isn’t offensive doesn’t need to be protected. The First Amendment exists precisely for the purpose of protecting offensive speech. The challenge is finding a way to distinguish speech that is harmful simply for the sake of causing harm, from speech that is merely offensive.

    When there was that faux flap over the Islamic community center in lower Manhattan (and, you notice how quiet that got after the election?), the opponents claimed they had a right to speak in opposition because all they were doing was speaking, and that is protected. But what their speech contained was a defense of and plea for curtailing others’ religious rights. When there is a conflict of rights (free speech vs. religion), if the exercise of one right interferes with rights of others, the decision seems clear. (This falls into the “Conflict with Other Legitimate Social or Governmental Interests.”) Your freedom of expression stops at the tip of my nose.

    Finally,

    And what gives FOX News [sic] the right to report distortions of fact and outright lies? Shouldn’t they be held accountable? I’m thinking about suing them for libel.

    The Roberts Supreme Court has already ruled that a “news” show doesn’t have to distribute true facts. It’s okay if the “information” imparted is knowingly and intentionally false. In order to sue them for libel, you have to show how you personally have been substantially and financially harmed. If you can do so, suing them would be a service to the world.

  13. Armchair Warlord says:

    filistro,

    The appropriate rejoinder…. refraining from suggesting in public that a visible minority should be forcibly eliminated by the majority is not a “social grace”. It is a social necessity.

    We seem to get along pretty well without it. If there was a clear and present danger associated with such speech the government would have the go-ahead to take action.

    Regarding Wikileaks and free speech,

    Wikileaks has been clearly carrying out an information warfare campaign against the US government for some time now. In particular their release of large amounts of classified information represents a clear and present danger to national security and should provide grounds to shut the group down immediately. The Constitution protects freedom of speech, not freedom of access to information – the need for the government to keep secrets has been recognized as far back as Washington’s presidency.

    Wikileaks’ hostile intent towards the US has been demonstrated by their improper editing, titling and captioning of their Apache gun-camera video – they took a benign (if grisly) piece of wartime footage and turned it into a piece of propaganda with which to attack the US government. To set the record straight here – the helicopters in the video in question engaged armed insurgents in the process of attacking US troops or subsequently attempting to evacuate their wounded. No laws of war were broken. No rules of engagement were broken. Injured noncombatants (who had been endangered by the actions of the enemy) were subsequently provided with medical care. In the same situation I would likely have ordered the same attacks.

    If you find raw imagery from the battlefield or the attitudes of soldiers at war disturbing, you should. War is a really terrible thing, and you can’t fight a war while having a whole lot of empathy for the enemy.

  14. Armchair Warlord says:

    dc,

    Actually, given that Beck et al. have gone after a number of people on a personal level (Shirley Sherrod and lately George Soros spring to mind) I don’t think that proving personal damage from lies originating on FOX would be all that difficult at that point. I’m surprised that FOX is -not- being sued for slander. Soros certainly has the financial ammunition to bury that network in litigation until the end of time.

  15. Armchair,

    In particular their release of large amounts of classified information represents a clear and present danger to national security and should provide grounds to shut the group down immediately. The Constitution protects freedom of speech, not freedom of access to information – the need for the government to keep secrets has been recognized as far back as Washington’s presidency.

    Except that the Constitution doesn’t cover activities of a foreign national on foreign soil. So the whole “clear and present danger,” “Constitution,” and “freedom of speech” thing means nothing to the people running WikiLeaks…unless, of course, there’s an American citizen among them.

    From what I can tell, I don’t think that WikiLeaks is hostile to the US per se. The US just makes a juicy target, because the publicity is much greater than it would be if they released secrets about Rwanda, for example. In that regard, it’s more of a publicity stunt.

  16. Mr. Universe says:

    The Apache attack footage has been shown to be two Reuters reporters getting interviews. The servicemen running the show mistook a video camera for a weapon. I have no reason to think the footage was doctored. That’s something Republicans do to dismantle legitimate organizations who register disaffected (and usually Democratic) voters under the false pretenses that they are running prostituion rings.

    I don’t pretend to know what the motivations of the wikileaks folks are but it would not appear that it is about money. That makes it appear to be a policy disagreement.

  17. Armchair Warlord says:

    Mike,

    Except that the Constitution doesn’t cover activities of a foreign national on foreign soil. So the whole “clear and present danger,” “Constitution,” and “freedom of speech” thing means nothing to the people running WikiLeaks…unless, of course, there’s an American citizen among them.

    Well, I was responding to Mr. U’s original question as to whether Mr. Assange had committed treason – a foreign national can’t commit treason either. 😉

    In short I don’t think US law would protect him were he an American citizen – although he would probably enjoy more protections from being persecuted by the US government than he currently does being a foreign national.

    Mr. U,

    The original 35-minute video was edited to 17 minutes to provide an anti-American slant, misleadingly and provocatively titled, “Collateral Murder” and contained misleading captions which among other things misrepresented normal military radio procedures as similar-sounding profanity. “Break” for “prick” and so on.

    The reporters in question were “interviewing” a group of armed insurgents (numerous weapons were recovered at the scene, including an RPG) who were gathering to attack an American patrol, and they aided them by serving as spotters and covertly taking photographs of the patrol. They bore no identifying signs as media and their actions would have negated any protected status they enjoyed regardless.

    The commander on the scene possibly could have done any number of things differently but he was well within his rights to order the attack.

  18. Mr. Universe says:

    @Armchair

    Again I have no reason to believe Assange would risk undermining his credibility by doctoring the footage (he may have shortened it for the sake of brevity but I don’t know that you’d call that doctoring). You may have a credible source to the contrary but I haven’t seen one. Key word being credible.

    Unlike the gangly kid who took down ACORN with completely doctored footage using actors falsely creating an atomosphere that didn’t exist. All because he had been told that ACORN represented a threat to conservative Republicans. He gets a slap on the hand while the right are calling for Assnge’s execution. I personally have problems with the moral distinction being made here.

    I’ve watched the Apache video. I don’t care how you rationalize it, those soldiers were enjoying their work with a little too much callous indifference. Almost with glee. I found that chilling, to put it politely.

  19. Armchair,

    a foreign national can’t commit treason either.

    And yet some frequent commenters here (and Sarah Palin) seem to be unable to grasp this. Nice to see that you get it at least.

    In short I don’t think US law would protect him were he an American citizen – although he would probably enjoy more protections from being persecuted by the US government than he currently does being a foreign national.

    Certainly the first half is true. The second half depends on which protections are stronger. Someone would have to extradite him to the US for him to stand trial at all. Even then, I’m unsure of what laws he has broken, since US laws don’t really apply to non-citizens performing actions outside of the US jurisdiction.

  20. Armchair Warlord says:

    Mr. U,

    Again I have no reason to believe Assange would risk undermining his credibility by doctoring the footage (he may have shortened it for the sake of brevity but I don’t know that you’d call that doctoring). You may have a credible source to the contrary but I haven’t seen one. Key word being credible.

    If Assange was not attempting to produce anti-American propaganda he would not have edited the video in any way, shape or form, let alone added a provocative title and false captions. That’s a basic ethical matter. To be short, my opinion is irrelevant – it’s a stone cold fact that he was attempting to smear the United States.

    Regarding ACORN, Breitbart and company probably deserve jail time – but ACORN isn’t a matter of national security.

    I’ve watched the Apache video. I don’t care how you rationalize it, those soldiers were enjoying their work with a little too much callous indifference. Almost with glee. I found that chilling, to put it politely.

    To put it politely, deal with it. War sucks and it doesn’t exactly bring out the best in people.

    Mike,

    Well, sure – but if the President was interested in truly persecuting Assange he could declare him to be a terrorist and have the CIA kidnap him to stand trial in the US for violating the Espionage Act. It would be a poor idea but it’s certainly possible. 😉

  21. Mr. Universe says:

    That’s a basic ethical matter. To be short, my opinion is irrelevant – it’s a stone cold fact that he was attempting to smear the United States.

    No, it really isn’t that clear. He may have a grudge against America; lots of people rightly do. We’ve been involved in more than our fair share of nation building/regime destroying than anyone else on the planet. Was Assange atempting to smear the US? I don’t know. I suspect he was trying to uncover a more transparent approach than the goverment of the US was prepared to deal with. All that he seems to have done is uncover our locker room distaste for foreign policies. It ain’t like he divuldged our nuclear capabilities or how fast out carrier groups can go. All he did was illustrate our true opinions about other leaders in the world. Not much surprise there. Might even be useful.

    I don’t think he was trying to take down the US as much as he was trying to force us to be more transparent. Just sayin’

  22. Armchair Warlord says:

    Mr. U,

    Assange has disclosed everything he’s gotten his hands on – if he found information on American nuclear weapons he would not hesitate to let it loose in the name of transparency. He has a long history of making anti-American statements and producing anti-American propaganda using ambiguous or neutral documents. This is a consistent pattern that stretches back to the early days of Wikileaks, when I recall a number of contributors bending logic backwards in a number of analyses to find something sinister in a leaked document detailing US military attempts to minimize civilian casualties during the Second Battle of Fallujah.

    By publishing stolen State Department cables, some with very honest assessments of slimy foreign leaders with whom we must nonetheless deal with, Assange is attacking the fabric of the international system. On a personal level, if you think your co-workers are obnoxious and you nonetheless have to work with them, workplace harmony is not going to be maintained if they know exactly what your opinion of them is. Your harsh thoughts would be translated into diplomatic action to reform them instead of alienating them by telling them your real opinions.

    Unfortunately in this case the State Department is a hive mind and its thoughts are written down where they can be stolen. 😉

  23. Armchair,

    Do you know for sure that it was Assange (or for that matter one of the WikiLeaks staff) that edited the video, rather than whoever gave it to them? I ask because I haven’t seen anything about who edited the video.

    As for the kidnap and espionage approach, sure, it can be done. As you say, it’s a poor idea. While we’re suggesting poor ideas, we could also talk about bombing the jail in which he’s being held. 8) Just saying…

  24. Armchair,

    Assange has disclosed everything he’s gotten his hands on

    No, he hasn’t. He has publicly said he has more stuff than he has time to publish. Given his propensity for self-promotion, I expect him to have planned to trickle things out in a fashion to maximize the press coverage.

  25. Armchair Warlord says:

    Mike,

    No, he hasn’t. He has publicly said he has more stuff than he has time to publish. Given his propensity for self-promotion, I expect him to have planned to trickle things out in a fashion to maximize the press coverage.

    True, but the point is he isn’t planning on sitting on anything he has because it might endanger someone. The only time I can recall Wikileaks acting against their principles of total information freedom (regarding people besides themselves) is with some partial redaction of names in their Iraq SIGACTS releases in response to the flak they caught over not doing so with the Afghanistan SIGACTS Manning gave them. Purely PR on their part.

    Do you know for sure that it was Assange (or for that matter one of the WikiLeaks staff) that edited the video, rather than whoever gave it to them? I ask because I haven’t seen anything about who edited the video.

    IIRC Bradley Manning gave them the original 35-minute video and Wikileaks staff edited it subsequently. Manning wouldn’t have been able to do the editing where he was at in Iraq and Wikileaks has (had?) a substantial number of computer-savvy people on board who could do that kind of work.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s