Protesters toppled a mobile spotlight and set it on fire during a demonstration against the scheduled appearance of Milo Yiannopoulos at UC Berkeley on Feb. 1, 2017. The event was canceled after demonstrators removed police barricades and occupied Sproul Plaza. (Bert Johnson/KQED) Story here.
The above photo depicts actions which are not free speech, and are not constitutionally protected. There are examples which are a bit more ambiguous, which will be interesting discuss. With the photo I just propose a limit up front to what I’m not going to consider “speech.” I’m going to call it violence. Seems pretty obviously so. It appears intended against property, but things get out of hand intentionally or not. It is the damage of something by force.
No matter your currently political position, I hope to challenge you with cases that you have no easy answer for, and surprise you with the [likely] disagreement between what you think you believe if asked offhand, and what actions of others you might sympathize with. We’ll start with free speech from three points of view:
- Your view of your own speech.
- Opinions about free speech generally when it is not specified who is talking or what they are saying.
- Actions (which we assume reflect real opinions, not conversation when asked about opinions) in response to speech to which one is strongly opposed, perhaps about which one has some strong beliefs that aren’t triggered by conversations about general speech.
Not all speech is protected. Advocating overthrow of the US government is against the law. See 18 U.S. Code § 2385. However, it is only advocating the overthrow (or destruction) of the government by violence that is illegal.
You can advocate changing the government or disbanding it through lawful elections, and that is perfectly fine under our constitution.
Do you believe in free speech when you are expressing your opinion? Well, obviously yes. Do you ever withhold your opinion, and why? One might withhold one’s opinion out of fear of losing friends, losing a job, or mob retaliation. You might think of yourself as merely expedient, or truly cowardly. I merely point out these possibilities.
Do you believe in free speech generally? Here is how to tell. Do you vote for politicians who complain about the speech of others, or protect it even when they disagree strongly? Do you become upset and perhaps cease communication when someone disagrees with you and seems immune to your reason or logical arguments? If you answered yes to anything other than voting for politicians who protect it, you do not actually believe in free speech. If so, I am not saying this is bad, just pointing it out. It could be good or bad depending on a lot of other factors. Whether you are “right” or not is only one of those factors, and not really a very big one. If there were a clearly determinable “right” (or left?) arguable by logic, we wouldn’t be having this discussion.
Do you believe in free speech when people you think are dangerous or have dangerous ideas are speaking, provided they are not in violation of 18 U.S. Code § 2385?
Milo Yiannopoulos is a despicable fellow. He has been kicked out of every institution of higher learning he ever attended and so has no degree. He was even kicked out of Brietbart news (for saying sex between 13 year old boys could be a positive thing). He does not advocate non-electoral changes to the US Government. He might have been guilty of advocating harassment (online harassment), but that was not the incitement for the photo above. It was the perceived threat of his political views.
Really? Could a human with Milo’s record convince anyone of anything they did not already believe? Highly doubtful. I suspect the people who were responsible for burning the trailer above might not really have been afraid of Milo, but of others who would come after him. Ann Coulter perhaps. They wanted to send a message.
Since I’m asking you questions, here are my answers. I’m always in favor of my speech, but find I often get in trouble for it. I try to keep my mouth shut sometimes, but here is this blog to prove I don’t. I do not actually believe in free speech generally. But my reasoning is not easily understood within the usual context of political debate. I believe, for example, that a group of people have the right to govern themselves as they see fit, including not allowing that government to be changed by those they feel are outsiders, even (especially) by political processes. This is a freedom. Take it away and what you have is eventually totalitarianism, because when sufficiently many views accumulate in the population there will be no other way to govern. But lacking much hope of changing the US Constitution to that effect, especially lacking a convenient definition of insiders and outsiders, and finding myself not in agreement with many who would be insiders, I’ll stick to the constitution for now.
Now lets discuss elections. This is where it gets dicey.
Do you believe in elections? When your party wins? The other? Someone you consider dangerous in some way wins, but they seem to have broken no laws, you just really don’t like what they say and do, even though their followers approve? (I could be talking about John Kennedy as easily as Donald Trump.)
What about elections in foreign countries? Should we try to influence them? What should we do when someone we think is dangerous is elected? Should we back non-constitutional removals of foreign governments.
The US has caused removal of foreign governments by covert means many times. In 1953 Churchill and Eisenhower decided to overthrow the democratically elected government of Iran. That didn’t end well for us. I’m sure you can find many more examples. Presidents of both parties have engaged in this risky behavior which undermines elections and usually results in military rule for a while, and a backlash later.
The US advocated that governments resign during the Arab Spring. Although this is obviously non-electoral, it was done in the name of supporting democracy. Later, when the citizens of Egypt voted in an election to change their government back, the US opposed that electoral process. The US demanded the “removal” of Assad in Syria, and this led to a bloody 9 year civil war and gave ISIS a chance to become established in the country. So even non-covert interference in other nations has blow-back.
The US this week voiced support for an election in Zimbabwe which appears likely to cause turmoil in the country. Does that indicated we have learned a lesson? Consider that:
- Obama went to England during the Brexit campaign and made threats regarding trade with the US unless Brexit was defeated.
- Trump went to England during the Brexit negotiations and made threats regarding trade with the US unless Brexit was fully implemented.
Hardly seems we have learned any lesson.
Are the public pronouncements of presidents a more ethical and less damaging way to interfere in the affairs of other countries? They are more like “free speech” than covert operations. But they seem to have bad outcomes in most cases.
Should private US citizens interfere in or even express opinions regarding elections in other countries? Soros brags about causing the change of several East European countries toward more open Western style liberal democracies. Every one of them is not changing back of their own accord, even though most are already in the EU. In other words, it simply didn’t work. And in Ukraine his results had disastrous effects.
Should US foundations which are fronts for government funds operate pro-democracy movements in other countries? Many have done this, e.g. McCain’s foundation in Russia, now barred for meddling in 2012. The result appears to have been covert Russian meddling in a US election, so that didn’t really work either, in fact it totally blew up on us because the Russians are hard to thwart. I should know, I’m married to one.
Let’s talk about Russians and fake news.
So, do you believe in free speech for Russians?
Now that is really the question, isn’t it? This thing with liberals and conservatives in the US is just politics as usual. Now that it is benign, it has erupted into riots on occasion and one Civil War, but the Russians pose a moral conundrum. We cannot justify our covert interference, whether through the CIA or various foundations, while criticizing theirs.
One of the complaints was they were promoting fake news. There has been fake news in every US election I’ve ever seen. It used to be last minute flyers direct mailed by the opposition candidate, allowing no time for denial, creating doubt. It is not criminally illegal to lie if not under oath. Libel is a matter for civil courts. It is typically illegal to lie to an arm of the government, or give false information in a contract or financial transaction or when selling something (fraud), but it is not illegal to make up news or rumors. If someone is damaged, they have recourse to the civil courts. Otherwise it is just free speech, in which you probably said you believed, but about now you are having doubts.
Now lets talk about the constitution vs what you believe…
What exactly is free speech in the Constitution? Does it apply only to citizens, or to Russians lying about their identity on the internet? It is actually tied up with the protection of lying and says nothing about citizenship. Here is the first amendment, word for word:
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.
Point by point analysis:
- It only constrains Congress, not states or cities. While most state constitutions have similar provisions, the question of whether the restriction on Congress can be applied to the states is not established. See here.
- Of first concern is that no religion may be prevented. However, you can bet that 18 U.S. Code § 2385 and various laws about weapons possession, bigamy and child sex laws, and so forth are actively enforced against religions. This is interesting in the case of Federal laws, but perfectly reasonable in the case of state laws I personally would like to see prevention of religions such as Islam, not anticipated by the people who wrote the First Amendment, from taking control in elections, regardless of the views of individuals, because I believe they will eventually rearrange the government to make Islam supreme. This is what the Koran advocates (yes, I have read it, at least enough to make that clear). We have enough trouble accommodating different Christian views on death penalty, abortion, etc. without getting into Islam. It seems perfectly reasonable to do this with state law.
- Free speech is covered in the same clause with free press. So, we have established free speech includes the ability to lie, subject to restrictions on fraud and libel. Does free press include constitutionally protected ability to create fake news? Apparently so. Hearst did it to incite the Spanish-American war. No one put him in jail. There might be some checks in state law, but not Federal. If we had a law against fake news, then in ambiguous or disputed situations, who would decide what is fake? A government censor, appointed by the current supreme leader of course. This is why we have constitutional protection for lying. No one knows how to make the slope not slippery. Is Trump exercising his right to free speech when he complains about the free press exercising theirs and creating fake news? (Any one with the right to lie invariably does it.) Of course. Does he advocate violence? Of course not. But the NY Times would like to portray it as resulting in violence, because that might give them a lever to shut him up. Is this just more fake news? Probably. Did violence occur at Berkeley as a result of the left exercising their right to free speech in opposition of Milo? Definitely. Will it occur because Trump complains of fake news? I doubt it, but if it does we will address it, the culprits will be jailed or killed, and a message will be sent no one will forget anytime soon. Vague and contested predictions of the future are not a basis for legal action. There can be neither evidence nor proof until time has passed.
- Peaceably assemble and petition government is also one clause. So Berkeley left wing intervention is not protected as it is not peaceable. A Berkeley professor wrote a blog defending a protest in which white students were blocked from classes. He defined a protest as creating an inconvenience. The Constitution does not offer such a definition, and by use of “peaceably assemble and petition” I infer no right to obstruct. Otherwise “obstruct” or some similar word would be in there. Even the word “protest” is not in there. The word used is “petition.” Ha! Protests are not protected by the Constitution. They could be outlawed by states or cities, and in fact “demonstrations” are regulated, require a license, and police control them to minimize “inconvenience.” If they won’t be controlled, they are declared a riot and people are arrested, sometimes even shot (Kent State).
Having read that, does the organization Patriot Prayer have the right to assemble and petition and engage in other free speech activities, without legal action or non-peaceful (including “inconvenient”) private action against it? It might help to review the mission statement of PP here. “Patriot prayer is about using the power of love and prayer to fight the corruption both in the government and citizen levels that seek to gain power through division and deception.“
The right to self-defense.
The problem is, when one side dislikes the other so much (i.e. thinks the other side is dangerous in a way that overrides the Constitutional protections) and starts taking “inconvenience” to the level of physical intimidation, pushing, shoving, and all that follows from that including carrying licensed firearms with the attendant possibly of using them if feeling overwhelmed physically and threatened. What appears to have developed is the following pattern:
- Right espouses speech that left considers dangerous and unacceptable.
- Left uses a liberal interpretation of free speech including “right to protest to the point of inconvenience and physical intimidation” to discourage and cancel right-wing events.
- Right-wingers, unwilling to give up their right to free speech, resort to their right of self-defense.
N. After some number of steps, violent overthrow of the government results.
The First Amendment applies to “people” acting within the jurisdiction of the US, which includes Russians. It guarantees the right to lie and create fake news (and to complain about it). As long as violence is not advocated, it guarantees the right to advocate governmental change. As long as no campaign contributions are made, there is no requirement to reveal true identities or pass any other ethical tests. Therefore we may concede every charge leveled at the Russians in connection with recent elections, and even every charge leveled at Trump, and none of them are illegal. Accepting money and not declaring it (to the election commission if a contribution, to the IRS if income) is illegal, and if those charges are proved people will go to jail. Paying money to someone to influence their speech, without other coercion? Merely a business contract. I am under all sorts of restrictions from my employer about what I can say, specifically about elections. Generally I ignore it, just as Stormy Daniels did. The person paying the money may be a fool, but not a criminal.
But the larger issue we were discussing is, do Americans really believe in free speech, and accept its consequences? Apparently, only their own speech, or only when convenient.