Limiting Speech in a Free Country

                                                         By David K. Shipler 

                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.                                                                                                                --The First Amendment 

                The First Amendment restricts what government may do, not what may be done by private entities such as Twitter and Facebook. So the internet platforms that have banned Donald Trump and many of his conspiracy-minded supporters do not run afoul of the Constitution. They are private companies, no more prohibited from silencing unwelcome viewpoints than any printed newspaper would be.

But American society needs to be careful about privately-imposed censorship—for that’s what it is, no matter how justified in the current state of emergency. As seen since 9/11, practices adopted to  counter threats can spill beyond the immediate risk, stifle diverse opinions, and outlast the period of danger. It’s a tricky balancing act to preserve freedom of speech and also contain wildfires of lies and verbal extremes that ignite violence.

The real conspiracies—not those fabricated but those organizing armed attacks—need communication to recruit and plan, so disrupting open lines of contact can impede them for a while. Yet in its quest for security against what might become a burgeoning insurgency, the country could harm itself. Extremist movements are already being driven underground to fester out of sight, elusive to law enforcement. If the parameters of acceptable debate are narrowed and marginal ideas are exiled from the public square, the society cannot be self-correcting. That depends on robust discussion across a broad spectrum, facilitated these days on the internet.

The map of free speech in the United States is defined by two overlays: fairly clear legal limits imposed by government on the one hand, and on the other, shifting boundaries drawn informally in the larger culture of peer groups, employers, news organizations, social media, and so on.

On the governmental level, the law’s limits on speech are so minimal, so distant from the places where most people go, that the landscape of freedom is probably the most expansive of any country in the world. It is very hard to break the law by merely speaking, although perhaps President Trump   managed when he fired up his supporters before some of them stormed the Capitol. 

The Freedom to Hate

By David K. Shipler

            Perhaps alone among established democracies, the United States enshrines in constitutional law the right to preach bigotry. Canada’s Human Rights Commission can levy hefty fines for speech “likely to expose a person or persons to hatred or contempt.” Australia’s Racial Hatred Act punishes expression and action likely “to offend, insult, humiliate, or intimidate” based on a person’s or group’s race, national, or ethnic origin. 

            Germany in 1985 became the first country to ban Holocaust denial. Further, anyone who “incites hatred against segments of the population . . . or assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population” is subject to five years in prison.

            Nazi symbols, anti-Semitic speech, and Holocaust denial are prohibited in at least 14 other European countries, plus Israel. The Czech Republic also bans the denial of communist crimes.

The constitution of post-apartheid South Africa, while guaranteeing freedom of expression, excludes from that protection “advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm.” The late Arthur Chaskalson, an author of the constitution and then South Africa’s chief justice, once explained patiently to me that his country’s oppressive racial history required constraints on inflammatory speech.

            Would this be a good idea for the United States? We certainly have a corrosive legacy of racism, now hailed by white supremacists who get a wink and a nod from President Trump. But other countries that have suppressed expressions of bigotry have not eliminated bigotry, which has just been driven underground to fester in darkness without vigorous rebuttal.

The Propagandist and the Press

By David K. Shipler

            It might be time to recognize that President Trump’s tweets and ill-tempered outbursts about the press are not just scattered impulses but part of a foundation being carefully laid to stifle investigative reporting and robust expression by the country’s news organizations. And a large plurality of Americans will be with him, as he showed during the campaign, when roars of approval greeted his threatening vilification of reporters covering his rallies.

            Now, in office, he and his new attorney general, Jeff Sessions, are in a position to test the limits of the First Amendment by various means, including legal actions that might be too expensive for any but the major news outlets to withstand. These could include extreme measures to silence government whistleblowers, aggressive demands on reporters to identify their confidential sources, and even moves to prosecute editors for publishing classified information. A Trump administration might make another attempt at prior restraint, which was repelled in 1971 by the Supreme Court, 6-3, when the Nixon administration tried to block publication of the Pentagon Papers, the secret history of the Vietnam War.

            Some responsible news organizations are already bracing for the onslaught and have redoubled their efforts to dig beneath the visible news. They now include on their websites instructions on how to use various encrypted communications to “share news tips with us confidentially,” as The Washington Post explains. The Post, The New York Times, and The New Yorker, for example, include links to such mechanisms as WhatsApp, Signal, SecureDrop, Strongbox, and Pidgin, with details on how much information about sender and receiver is retained by the providers. Even where the texts of messages are encrypted, some providers keep metadata—users’ phone numbers, email addresses, and time stamps—which could be subpoenaed by government to show that an official has been in contact with a reporter.  

These invitations to get in touch are useful, but they’re passive. The press also needs to assign beat reporters to regulatory agencies that have never received much day-in, day-out coverage. Getting into the weeds where mid-level officials reside, and finding what the columnist James Reston used to call “the man with the unhappy look on his face,” is essential for documenting the subtler shifts in rules and enforcement that are likely under Trump and the team of dismantlers he has assembled.

The First Amendment and the Freedom to Hate

By David K. Shipler

Metro said Thursday that it will not allow new issue-oriented advertising in the transit system after a controversial pro-Israel group sought to place ads featuring a cartoon of the prophet Muhammad, a drawing that was linked to deadly violence in Texas this month.

--The Washington Post

            Just for the sake of argument, let’s say that the White Aryan Resistance wanted to put ads on Washington Metro trains and buses featuring a cartoon from the gallery it labels “Kikes.” For example, take the one that portrays a long-nosed, thick-lipped, cigar-chomping giant leering maliciously as he applies a drill bit to the stomach of a smaller, terrified blond fellow he’s holding down with a meaty hand. “Never forget, white man,” says the caption, “the Zionist Jew is working around the clock to DESTROY YOU.”

            Or, let’s imagine that some purveyor of one of those Photoshopped images of Barack and Michelle Obama as subhuman primates (you can see dozens by Googling “Obama Ape”) decided to display it throughout the capital’s transportation system. Picture buses circulating through the streets of Washington adorned with posters of an anti-Semitic caricature of a Jewish monster or President Obama morphed into a chimpanzee.

            There might not be a risk of violent reaction. But it’s a safe bet that very few Americans would defend the parade of such ugly bigotry against Jews and blacks. Consider, then, the application to Metro by Pamela Geller’s American Freedom Defense Initiative to buy space for the winner of its cartoon contest in Texas—a drawing featuring the traditional stereotype of a fierce, raging Arab, glaring and waving a curved scimitar as he declares, “You can’t draw me!” The artist, out of the frame, replies, “That’s why I draw you.”

Mixing Religion Into Politics

By David K. Shipler

(published in Moment, Sept.-Oct. 2012)

If opinion polls on religion and politics are accurate, the American public reached a turning point last March, in the heat of the Republican primaries. For the first time in the 12 years that the Pew Research Center has been surveying attitudes, a plurality—38 percent—said that politicians talked too much about faith and prayer, exceeding the 30 percent who thought they talked too little. Until now, the figures had been reversed. The “too-little” camp reached a high of 41 percent in 2003. And this year, only 25 percent—down from 60 percent in 2001—felt that political leaders were expressing religious faith in just the right amount.

Does this indicate a growing distaste for candidates who mix religion into government? Let’s not get ecstatic quite yet. The First Amendment still sits uncomfortably on a good number of citizens, especially white evangelical Protestants.

The Secret Service As Thought Police

By David K. Shipler

A case of security vs. speech, before the Supreme Court for oral argument today, may set important standards for law enforcement agents who make misjudgments in the heat of the moment. As usual on matters of civil liberties, the Obama Administration is on the wrong side.

Under President Obama’s predecessor, the Secret Service was mobilized to suppress political speech. To create glowing television portrayals of President George W. Bush wherever he spoke, White House staffers screened out people wearing anti-Bush T-shirts, had the Secret Service expel them from public presidential events, and even cruised parking lots looking for hostile bumper stickers so the cars’ occupants could be turned away once they reached the door. The Secret Service, which is supposed to protect the president from physical harm, protected him from political dissent as well, by instructing local police to restrict demonstrators to distant “free speech zones,” usually out of sight of both the president and the cameras.

Church, State, and Santorum

By David K. Shipler

Given the history of religious persecution in colonial America, not to mention elsewhere in today’s world, it’s hard to think why Rick Santorum and his acolytes would so zealously wish to undermine what President Thomas Jefferson in 1802 called the Constitution’s “wall of separation between Church & State.” Jefferson coined the famous, controversial phrase in answer to a worried letter from leaders of the Baptist minority in Connecticut, where religious freedom was not an inherent right but merely a privilege granted by the legislature—one that could be withdrawn.

It had also been Baptists, in Virginia, who had inspired the First Amendment. Baptist preachers there had been jailed at the behest of the Anglican Church, and the growing Baptist voting bloc feared oppression by the fledgling federal government. Their leaders pressed a certain congressional candidate in 1788—James Madison—to abandon his ambivalence about amending the new Constitution. Madison hadn’t seen the need for amendments spelling out specific rights, but he did see a need for votes in a tough election. We know the result: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”