What are the Limits of Free-Speech?
After many years of hearing nasty rap lyrics and seeing flags burned, the Right has turned the tables on the Left, wanting QAnon and the Alt-Right free-speech protected. Meantime, bakeries now have the right to not make gay-wedding cakes, BLM protests were considered “peaceful” while the Capitol riot was considered the incitement of violence, and Twitter/Facebook have silenced Trump. Where is the line or lines in all this?
Dare we go into all this by saying there is supposed to be some basic rules governing free-speech:
1) Free-speech is a right given by our Federal Government, and protects our rights to peaceful expression of our opinions.
2) These rights are curtailed when violence is incited
3) You might say these rights do not extend to minors within families, felons, or in K-12 schools (though this is being challenged), nor do they extend to within places of business, who have the right to make reasonable conditions of behavior.
4) Public organizations must follow the “laws of the land”, which protect against discrimination (generally on the basis of race, religion, gender, or sexuality). Religious organizations are given more leeway on these laws, on the basis of separation of church and state.
Below might be the examples that support rules 1,2, 3, and 4:
A) William Gaines (the Editor of MAD Magazine) was hauled before the Senate Subcommittee on Juvenile Delinquency in 1954, mostly for his “Tales of the Crypt” Comics. He was forced to give up this line of comics, while MAD Magazine was allowed to continue. A “Comics Code” was developed, similar to the Hollywood Code. Similarly, Frank Zappa was challenged by Tipper Gore’s “Parents Music Resource Committee” (PRMC) which sought to limit his lyrics, and he responded with a defense of music lyrics as free speech. The Hollywood Code was replaced in 1968 by the movie rating system. In 1988, Ronald Reagan pushed the FCC to get rid of the “Fairness in Broadcasting” rule (which required networks to have a political balance in reporting). Generally, free-speech is maintained in the Arts, while the carrier or medium (ie the Cable Carrier, Movie Theaters, TV Networks) have rights similar to store owners, standards protecting good taste (which in effect pushes controversial content to more marginal carriers). An example of this might be that Regency Theaters has an interest in family entertainment, and might at most show R-rated movies. This in effect might push hardcore porn to the “Kit Kat Theater” in the nightlife district. Free speech is maintained while market forces take shape. (RetroReport.org 2015),(govtrackinsider.com, 2019)
B) Due to #4, Business owners must obey the law of the land, and allow customers in the door regardless of race, gender, etc. However once in the doors, the business owner has a right to maintain reasonable standards of behavior, which might include not behaving in such a way as to scare the other customers (examples, “no shirt, no shoes, no service” and “we have the right to refuse service”). This is similar to A) in that market forces take shape, where Joe’s Restaurant is a respectable family establishment, and Ray’s place is meant for rowdy men who like strippers. The Bakery that gained the Supreme Court decision to not make the gay wedding cake was more or less keeping with this tradition. They let the gay customers in the door, but would not make the gay wedding cake as they were religious and ran a “family business” (which apparently didn’t abridge the gay couple’s rights of expression, since others could make the cake). This seems reasonable. Generally speaking though, the discrimination laws can vary by State and the whole subject is rather complex. (Liptak, 2018),(Haskins, 2020)
C) Due to #1 and #2, free-speech where violence is incited is not allowed. There are other areas where free-speech is abridged:
“obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, and commercial speech such as advertising”. (Volokh, Vile, Seelye, Bidgood, McGovern, et al)
In the movie “Straight Outta Compton”, the early rappers were flirting with this line. Their attorney was working both sides, trying to get his rappers to stay within the lines, and also holding off the police as an agent of the rapper’s “free speech rights”. Honestly, the band seemed to cross the line many times, but this is a judgement call (except when the audience responds to the lyrics with violence, which is a clear breech). We are now at this crossroads with the Capitol riot. I think it is clear to most that the actions of Trump and Giuliani, if not Cruz, Hawley, Gosar and others, directly led to violence. In the 60s, the ACLU used to protect Norman Lincoln Rockwell’s American Nazis right to a peaceful protest. That is where this should stay. Honestly, I believe that flag burning is also an act of violence incitement, and shouldn’t be allowed. (Detrick, 2015)
D) Religious organizations have protections that basically allow them to discriminate, and pretty much say what they want. However, I believe that if they regularly incite violence, they should lose their tax-free status, in addition to religious individuals facing the punishments of similar felons (free speech abridgement). Also, the Rotary Club had to obey the “laws of the land” (allow women), but Boy Scouts were treated like a Church (they were allowed to prohibit girls and gays). This was a mistake, since the Boy Scouts aren’t any more a religious organization than some Rotarians that say a few prayers. The Boy Scouts have since corrected themselves of their own free will. (law.cornell.edu, 2000)
E) Besides the aforementioned minors, K-12 schoolchildren mentioned in 3), the free-speech rights of felons are limited. (England, n.d.),(Feldman, 2019)
F) As a practical matter, Amazon, Facebook, and Twitter have the right to have rules of conduct on their mediums, since the speech affected can always go on 4Chan (the online equivalent of the “Kit Kit xxx Theater”). The current twist is that Trump was threatening these entities with “anti-trust action”, essentially saying that since they were the dominant carriers, they were abridging free-speech (this is a stretch). This would be like saying if Denny’s owned 70% of the restaurants, they would lose the right to throw out people chanting loud slogans or threatening violence, which would scare the other customers (ie ridiculous).
G) An interesting case is Fox News, whose foreign-born owner, Rupert Murdoch, is essentially a purveyor of half-truths and innuendo, for profit. He is not surprisingly a big supporter of supposed “free-speech”. In actual fact, he is close to, or has committed “fraud and speech integral to illegal conduct” (by endlessly supporting Trump “stolen election” claims, among other things). Sponsors have pulled out, and defamation lawsuits (one currently by Dominion Voting Systems) have been filed, and having lost Trump’s protections, may run afoul of Foreign Influence laws. It would be appropriate for the carriers to dump Fox News (ie Xfinity, Hulu, YouTube, Dish Network) but of course they would be reluctant to lose the money. A better bet may be to restore the FCC Fairness Doctrine, continue libel suits for defamation, and for the Biden Administration to squeeze the Murdochs on the foreign-influence front. (Cunliffe, 2020)
H) The irony of the BLM/George Floyd versus Capitol-riot protests in DC were that the June 2020 BLM protests did not preach violence nor did they descend into violence. There were approximately 5,000 protesters involved, 7,500 police (including National Guard) present, 289 arrests, no deaths. In the Capitol riots there were roughly 8,000 protesters involved, 2,500 police present, 52 arrests and 5 deaths. Obviously, there is a different standard of free-speech-to-violence expectations from an angry black crowd versus an angry white crowd. I suspect that this is all about to change, with the new administration and better FBI and CIA identification of white hate groups. (Chason, Schmidt, 2021)
I) The “cancel culture” of both left and right might be called a market response (advice on buying or selling). There is always the “anyone can sue anyone for any reason” phenomenon, which is a kind of “consumer voice”. You will probably lose your case if it doesn’t have merit, but you may get the sympathy of other consumers. The gay couple that sued the religious anti-gay bakery, for instance, lost on “freedom of religion” and “business owner privilege” grounds, but perhaps got consumers to negatively Yelp that bakery, thereby gaining some retribution among gay-sympathizers. Very American!
