The Pakistani Spectator

I would like to describe an American perspective on free speech in today’s article. In US legal terms, “freedom of speech” is actually broader than it sounds, really extending to a freedom that applies to all forms of expression. For example, the US Supreme Court has held that laws forbidding burning the US flag are unconstitutional, because burning the US flag is a form of expression protected by the Constitution’s guarantee of freedom of speech. (This was an unpopular judgment of the courts, since many Americans find burning of the flag to be highly offensive, but keep in mind that freedom of speech is precisely about guaranteeing the freedom to express oneself in unpopular ways – saying things that are uncontroversial does not require legal protection! Many politicians, especially in the Republican Party, have suggested that the Constitution should be amended specifically to remove free-speech protection from flag-burning. Personally, I find this to be a silly bit of pandering to public opinion, something that would require an enormous effort just to prevent perhaps one or two flags from being burned per year. (It might even lead to more flag burning, as such a law might specifically provoke protests!) Any given person would probably disagree with dozens of Supreme Court judgments every year, but this is not reason to add dozens of amendments to the Constitution every year just to “correct” those judgments! The US has managed well with just 27 amendments to the US Constitution in over 200 years, so adding amendments for minor “pet peeves” of lawmakers makes no sense!) Another area where the US Supreme Court applied free-speech protection was to campaign spending reform. Congress passed laws to prevent rich persons and corporations from buying political influence through large donations to political campaigns, and the Supreme Court blocked most of these limits, holding most forms of such unlimited political spending to be a form of expression that cannot be prevented by law. (As a practical matter, this particular form of expression is only available to the rich, and to larger corporations, of course!)

What are the legitimate limits to this freedom of expression? There are several limits recognized under US law, just as one example of a set of possible limits:

• Expression likely to cause physical, criminal harm: The famous saying is that freedom of speech does not give one the right to yell “Fire!” in a crowded theater, and this is true. Also true is that people have no protected right to urge others to break the law, for example, to persuade someone to kill their enemy, or to attempt the violent overthrow of the government. To be criminal, though, such speech must generally have real potential to cause harm – if you were speaking in a context where it was extremely unlikely that anyone would heed your suggested actions, then the law would not likely apply. For example, a drunk person might weave through the streets yelling that we ought to line up the members of Congress and shoot them all, but this would be extremely unlikely to trigger anyone to take action.
• Libelous expression: There is no right to say false, harmful things about a living person or a corporation. This rule is usually enforced in civil courts, through lawsuits, not in criminal courts. The offended person or corporation can sue the party that made some false claim, seeking payment for financial harm and harm to one’s reputation. For such a lawsuit to succeed, it is necessary to demonstrate that the statement made was false, and that it did damage (others likely believed it, and thought less of the person or corporation harmed, as a result). The US courts really have two sets of standard for libel, though, one standard for ordinary people, and another for “public figures,” persons who are famous, generally. If a false statement is made against a public figure, the courts are much less protective of that public figure, unless the person making the false statement showed “reckless disregard” for the truth in making the statement – in other words, a journalist who had honest reason to believe that the President, for example, did something wrong, could safely report this, and would not be likely to have to pay damages if the report turned out to be false after all. If the same journalist made a similar honestly meant but harmful mistake like this in a report about me, however, I would stand a good chance of winning a lawsuit, if I had the patience and money to hire a lawyer and pursue the issue, because I am not a public figure.
• Sexually offensive expression: The US courts have held that some laws preventing sexually offensive expression are legitimate. These laws must take into account who sees or hears the expression, though. Thus, the rules are relatively restrictive (by Western standards) when applied to things we might all (especially children) see simply going about our business in a public space, but only the most extreme sort of sexually offensive expression is contrary to law when it is between the covers of a book or magazine sold only to adults, and the adult purchasing the material is likely to know what he is buying. (The exact boundaries are not well defined, and are the subject of some debate.) Note that in the US, other forms of offensive expression are entirely protected by law. (Of course, offensive persons can still lose their jobs, their friends, etc, by being obnoxious; I am only speaking here of legal consequences of offensive speech!) In even the most public forum, Americans can legally say hideously offensive things about groups of people defined by race, gender, or religion, can say hideously offensive and blasphemous things about any religion, can be grievously insulting to any living person, as long as the insults do not state anything factually untrue about that person, and can say anything at all about any dead person, including lies. (Libel laws in the US do not protect dead persons.) I can think of no logical legal reason why sexually offensive expression is treated differently, under US law, than all other forms of offensive expression, except that it just happened to work out that way over centuries of legal precedent, perhaps as a result of what our culture found least tolerable over that time. Within other cultures, other forms of offensive expression might easily be less tolerable, and might be added exceptions to free speech within those cultures, and this would be no harder for them to justify than it is for American courts to justify anti-pornography laws.
• Expression that interferes with others’ expression: This is a “gray area” of US law, with ill-defined limits. Consider a public concert, for example, held in a public park. Should a member of the audience be allowed to ruin the concert for all by standing up and shouting for some set of ideas for the duration of the concert? Shouting those same ideas in that same park would normally be perfectly OK, but during the concert, I expect the courts would have no trouble defining this as “disturbing the peace” (a minor crime, but cause enough, at least, to forcefully remove the person from the park, so the rest of the audience could enjoy the rest of the concert). When political speech goes up against political speech, the question gets trickier – who gets to talk and who gets hauled away for disturbing the peace? If two people have equal right to claim use of the public space, then as a matter of practicality and fairness, it seems that neither may claim a superior right to be heard (so a shouting match decides the issue). It seems reasonable that if someone has formally arranged use of the space, however, for a pre-scheduled political rally, for example, then that person should be able to claim a right to be heard, and that it seems reasonable to force anyone seriously interfering with that right to be heard to either be quiet, or to leave, or to be arrested for disturbing the peace. There is clearly a gray area, here, however, and some public dissent must be allowed, even in this case of a pre-arranged political rally, as long as the right of the person who arranged the rally to have his or her say is not seriously blocked. I am sorry to say that the current US presidency has badly abused this area of law; rallies with George W. Bush, in public spaces, have become frighteningly controlled affairs, with people forced to leave, for example, just for quietly wearing shirts having anti-Bush sentiments printed on the front (which would obviously not interfere with Mr. Bush’s right to be heard!). Generally, these people are given some nonsensical reason such as “security concerns” for why they must leave, and they are either not arrested or, if arrested, the charges are quickly dropped once they have been taken away, so there is no likelihood of these cases reaching the US Supreme Court, where even the current conservative court would, I believe, strongly affirm that these anti-free-speech actions are deplorable and illegal. Without arrest, however, these deplorable actions have the desired effect of leaving the Bush rallies in an artificial bubble of pro-Bush sentiment, as if 70% of Americans had not long ago concluded that this presidency is a miserable failure. In a particularly cynical exercise, the officials arranging these Bush appearances also arrange fenced-in “free speech zones” out of sight and out of earshot of his speech, where protesters are kindly “allowed” to have their say! The best response to this cynical arrangement came years ago from a politician whose name I don’t recall, who said, as nearly as I can remember: “We already have the only ‘free speech zone’ that we need; it is the entire country!”
• Expression that interferes with education: The courts have recognized some rights for public schools to control the expression of students within the school boundaries, in the interest of maintaining an environment consistent with the students’ education. For example, the school may punish students who speak disrespectfully to the teachers. This does not mean that the schools can arrest students for expression that the schools do not like, only that they may discipline the students with the usual internal punishments that schools apply to keep order.
• Expression that interferes with property rights: In a public space, assuming George W. Bush is not nearby, you may say what you like in America, but in my home, I have a right to demand that you leave, if I do not like what you say, and the same right of control extends to owners and renters of any other non-public space, and to any expression that uses private resources. (This does not mean that a private owner can arrest someone just for saying something he or she does not like within that owner’s property, only that he or she can insist that the offending person leave, and can charge that person for trespassing if he or she refuses to leave!)

This last restriction to free speech, based on property rights, applies more widely than it might seem. There are now some restrictions in US law penalizing unwanted sales calls to persons who have chosen to be placed on a national “do-not-call” list, and also restrictions against the widely hated spam email. Although both these laws are hard to enforce, they are generally seen at least as being constitutional, because both unwanted email and unwanted sales calls can be seen as a sort of invasion of our property – the phone service we pay for, and the computer resources we own. As a practical matter, it is becoming increasingly essential to have legitimate regulation of these forms of expression as the costs of automated email and recorded phone calls go down, so that without these regulations, we might find ourselves either forced to spend our lives dealing with this sort of machine-generated “speech” or to simply cease our valuable use of phones and email. When all expression was directly from human to human, this sort of regulation was unnecessary, but with machine-aided expression, it is unfortunately becoming cheaper and cheaper to thrust unwanted commercial messages upon us all. Without some sort of regulation of such machine-aided “expression,” there are all-too-plausible science-fictional scenarios where we might all go about our days in a non-stop cacophony of visual and audible spam-like commercial messages, unable to find the peace and quiet to think clearly.

Another property-based restriction to free speech applies to expression that uses someone else’s media platform. Free speech does not imply that a newspaper owned by someone else must print my article, nor even my letter to the editor – the newspaper owners may print whatever they please – this is their right of freedom of expression! Similarly, the owners of a blog site have the right to control the content of that blog however they please – they paid for the media platform, and if we don’t like what they print we may read something else, or create our own blog. (This is fortunately not very expensive to do in the blog world, so blogs are a much more accessible media platform than older platforms such as newspapers, and chances are that a blog already exists that would be happy to print any point of view you might wish to express.) There is no legal penalty, nor should there be, for a media platform choosing what to print and what not to print. The only penalty would be if readers do not like those choices, and therefore cease to buy the newspaper, or read the blog.

In my next article, titled “Free Speech on The Pakistani Spectator,” I will specifically discuss how these property-based rights permit (and should permit!) the owners of The Pakistani Spectator, and any editor they elect, to choose the rules for what they will print, and what they will not. Any blog faces a trade-off, here – if they print too much, they may give a free forum to offensive idiots, and too much garbage will alienate their readers, but those same readers may prefer mainly to be allowed to decide for themselves, especially regarding the public comments to the blogs, what makes sense and what does not, and no choice, here, will please all readers Presumably most blogs would prefer to please most of their readers most of the time, so my next article will be designed as an opportunity for us readers to provide The Pakistani Spectator some respectful feedback regarding our own preferences. (Please, let’s hold back the comments specifically regarding what The Pakistani Spectator should or shouldn’t do about restricting its own content until my next article, which will be coming very soon!)

Last 5 posts by Dan Tow

• Safety in “Big Daddy’s” Shadow? - September 8th, 2008
• Coping with Limits to Control in Politics, Life, and Bridge - August 26th, 2008
• The Right to Remain Silent - June 18th, 2008
• Living with Free Speech - June 6th, 2008
• Free Speech on The Pakistani Spectator - May 1st, 2008