On Free Speech

“Marriage is the foundation of the natural family and sustains family values. That sentence is inflammatory, perhaps even a hate crime.”

Those two sentences open a recent column by George Will, “Speech Police, Riding High in Oakland.” Will discusses an incident and court case from several months ago concerning a group of Oakland city employees, the Good News Employee Association (GNEA), a flier they distributed and posted on an office bulletin board containing Will’s first quoted sentence, and the dust-up that resulted when another employee’s complaint led to the removal of the flier from the bulletin board.

GNEA is a Christian-identified employee organized that is opposed to the possibility of gay marriage, the main topic addressed in their flier. (I do wonder what the full contents of the flier look like. I searched quite a bit on the web for the full text, but was unable to find it. Many websites supportive of GNEA do contain short quotes, mostly along the lines of that in Will’s column. I wonder whether the lack of ready availability of the full text indicates selective attention to the most relevant passages or whether it indicates omitted text that is less innocuous.)

Office management removed the flier from the bulletin board after the complaint of one fellow employee. As Will mentions, other employee groups had previously put up advertisements and fliers there and through office email, such as a gay employee group’s advertisement of a “Happy Coming Out Day” event. Quoting from Will:

“The flier was distributed after other employees' groups, including those advocating gay rights, had advertised their political views and activities on the city's e-mail system and bulletin board. When the GNEA asked for equal opportunity to communicate by that system and that board, it was denied. Furthermore, the flier they posted was taken down and destroyed by city officials, who declared it "homophobic" and disruptive.”

My initial reaction on reading Will’s column was that it did seem unfair to allow some groups to use the public bulletin board and to disallow that for others – provided GNEA’s flier was not overly disruptive and relatively innocuous. I still think the flier’s viewpoint should have been allowed expression in that forum, even though I strongly disagree with it, if other viewpoints were also allowed expression there. At the same time, I think that Will mischaracterizes the 9th Circuit court’s decision on the matter.

First, Will and others on the web raise the specter of GNEA’s speech being prosecuted as hate speech. Here’s a quote from a blog post by Ed Brayton on the issue:


“As usual, the media reports focus on the broadest possible issue and not on the actual legal issue under dispute in the case. California does not have a law against "hate speech", nor does any other state. The only place such rules exist in the US are on college campuses (and as I wrote recently, I am in favor of an all out legal assault to get such rules declared unconstitutional by the Supreme Court). But the issue in this case is much narrower than that and has little to do with outlawing the advocacy of anti-gay positions.

“The particular issue in the case is whether the Constitution requires that employees be allowed to post material in public view in their office that their employer (in this case, the city of Oakland) has deemed to be in violation of their anti-harrassment policies and disruptive to the collegiality of the workplace. The case does not attempt to declare such sentiments "hate speech", nor would it prevent the plaintiffs from expressing their position in a myriad of other ways; it deals solely with the narrow question of whether the employer can regulate the content of material posted on their public bulletin boards.”


Second, Will mischaracterizes the court’s decision, which is actually more nuanced than you’d think from his column. Here’s a selection from the court decision that’s quoted by Brayton:


“Having laid out plaintiffs' and defendants' competing interests, the court must strike the balance called for by Pickering. Neither side has presented a strong case. But, the facts being undisputed, the court must resolve the question of law posed by Pickering. The interests on both sides are slight: On the one hand, defendants' restriction of plaintiffs is far from a wholesale muzzling, but on the other hand, the suppressed speech was not patently inflammatory "fighting words." To be sure, it caused friction in the workplace, but there is a difference between episodes of friction -- which are the daily incidents of life in a pluralistic society -- and disruption -- which impairs the government's ability to discharge its duties to its citizens. The City must tread carefully when it exercises its authority to suppress its employees ' speech.

“Because the flyer plainly addresses a matter of public concern, it is defendants' burden to show that the City's interest outweighs plaintiffs' interest. This balance must be resolved in the City's favor for two reasons. First, plaintiffs' interest in this particular channel of communication is vanishingly small. It is undisputed that plaintiffs may promote GNEA outside of work and may do so even at work under proper conditions. Plaintiffs do not have a privileged First Amendment interest in communicating their message to their officemates, for their First Amendment rights derive from their status as citizens, not their status as employees. Their right to speak to their coworkers at CEDA is no greater than the right of a citizen at large to speak his message to CEDA employees -- which is to say, plaintiffs have little rights at all in the particular channel they chose.

“The second reason that defendants prevail is that their response to Jennings' complaint -- removal of the flyer without any adverse employment action against plaintiffs -- was a narrowly tailored and proportionate response to the actual workplace disruption or, perhaps better described, distraction. An actual adverse employment action against plaintiffs would very likely not be justified on these facts, and the City would be well to consider this for the future. But the City does have an "administrative interest" in avoiding situations that distract employees from their jobs. Pickering counsels that public employers must, of necessity, be afforded some leeway in fixing their employees' attention on their tasks, free from upset stemming from public controversies having no bearing on the work of the employer.”


Will’s account of the decision is as follows:

“A district court affirmed the city's right to impose speech regulations that are patently not content-neutral. It said the GNEA's speech interest -- the flier -- is "vanishingly small." The GNEA, in its brief asking the U.S. Supreme Court to intervene, responds that some of the high court's seminal First Amendment rulings have concerned small matters, such the wearing of a T-shirt, standing on a soapbox, holding a picket sign and "other simple forms of expression."

This is a highly partial account in that it implies that the court has ruled that if a speech interest is small, it can be disallowed for that reason. What the court has actually ruled is that sometimes one right needs be considered in balance with another, in this case, the employee’s right to speech and the employer’s right to maintain an efficient and non-disruptive workplace. The court actually also warned the city against the use of strong actions in cases like this one.

After reading about this case from a variety of sources, I have a couple reactions to the matter.

1. My first reaction has less to do with freedom of speech than with patterns of speech or discourse.

In a number of ways, conservatives have appropriated the discourse of their opponents. I’ve heard conservative Christians speak of the need for conservative Christians to “come out” – sometimes without a hint of irony. Will uses the language of sexual harassment and anti-discrimination regulation when saying that GNEA could plausibly claim that a “hostile environment” has been created for them.

In addition, conservatives have mastered the discourse of oppression. Gays cannot marry in 49 of 50 U.S. states and have trouble accessing a slew of basic rights (inheritance, hospital visitation, spousal benefits, adoption – just to name some of the most important) that heterosexuals, or at least married heterosexuals can take for granted, yet it’s those who oppose gay marriage who are oppressed, even though they wouldn’t lose any rights or anything if gay marriage were permitted.

This would make more sense if the expansion of rights to excluded or marginalized social groups were being played out in a zero sum game. Instead, the expansion of civil rights in the 1960s for blacks, Hispanics and others, the expansion of rights for women with the successes of feminism, and the possibility of equal rights for lesbians and gay men simply expand rights already taken for granted by one group (whites, men, or heterosexuals) to another. In each case, social change has been accompanied by conservative tails of woe and oppression. (If anything, the opposition to gay marriage and other equal rights makes even less sense to me. With the civil rights movements, southern whites did potentially face new job competition from blacks previously excluded, and men potentially face competition for jobs with women in a way not previously the case, but there’s nothing of the sort in the gay rights issue, because the expansion of gay rights is mostly about the expansion of social rights and not so much economic rights [at least not economic rights that might pit them in competition with individual heterosexuals].)

2. Many don’t seem to get that freedom of speech doesn’t mean freedom to impose one’s speech anywhere. This is true across the political divide.

I do think that it was unwise of office management to have removed GNEA’s flier (again, unless there was material in it that’s not been quoted online that was more disruptive and much less innocuous than Will’s and other’s quotes seem to indicate). Fairness would seem to indicate that if one group could disseminate their views on the bulletin board, then others should be allowed to also.

Still, freedom of speech doesn’t equal freedom to speak everywhere. There are contexts in which anyone is free to express their views, but most contexts are not so free, and often for legitimate reasons. A newspaper, such as The Washington Post for which Will writes, controls its own content and has a valid right to exclude material (including whatever letters or manuscripts anyone might want to send in) as the editors see fit – this is part of their freedom of expression. I control my own blog – I don’t often delete comments, but I can legitimately do so, and if I do, I’m not in any way denying anyone’s ability to express themselves – I would just be denying them the ability to impose their expression on a forum controlled by me. The bulletin board from which GNEA’s flier was excluded is similar. It was a forum controlled by someone else, and as the court ruled, denying the group access to the board, while technically a small infringement on speech, in no way kept the individuals from distributing their ideas in other contexts.

Racism and Free Speech: Part III

The Southern Poverty Law Center’s online Intelligence Report has a recent article on the topic of academic freedom and racism in the college classroom. The article can be found at this link: http://www.splcenter.org/intel/intelreport/article.jsp?aid=754

Academic freedom is critical for the advancement of knowledge and understanding. Scholars in the sciences, humanities, and arts have to know that their research, writing, and teaching pursuits will not be infringed because of political expediency, corporate interest, or the whim of public opinion.

There are limits to academic freedom. Many academic disciplines and programs have curriculum elements that are prescribed. For example, when I teach a course like “Introduction to Anthropology,” there are certain topics that I am expected to teach. Technically, this abridges my free action in that I have to teach these topics. This is not a bad thing, and my freedom to pursue my research and writing is not infringed upon. Nor for that matter is my freedom to have a perspective on the topics I teach in that course abridged – and I have any number of ways available to go about teaching about human evolution, language, human culture, etc.

Another limit to academic freedom in the classroom has to do with truth, or more precisely with untruth. There is a reasonable expectation on the part of students and the public (including other faculty) that a teaching professor is knowledgeable about the topic they are teaching and that they present the facts of the topic in an accurate manner.

Ideally, people should be knowledgeable about matters that they hold forth about. As the B-52s song “Mesopotamia” says, “Before I speak, I should read a book.” Still, in general people should be free to express whatever the like, even the nonsensical or offensive. And when people say offensive things, others should freely express their offense. As I wrote in my previous post, for example, I’m against both Holocaust Denial and Holocaust Denial laws.

The classroom is different though. Again, there’s a reasonable assumption that what a professor says is accurate and based on expertise. When a professor presents information which is manifestly untrue as if it were true, they’re not just expressing themselves. They’re actively causing harm to the education of their students. In that context, it’s entirely reasonable to restrict things like Holocaust Denial or the presentation of other racist untruth as established fact.

At the same time, I’m wary of formulating restrictions on academic freedom in general. There are too many people who’d like to influence academics’ freedom under the guise of protecting “truth” or “balance” or “academic freedom.” One example: a couple years ago, in the Florida state legislature a bill was introduced (thankfully, it didn’t pass) that would have required balance in the teaching of human origins, the clear and fairly explicit goal of which was to force professors to teach creationism alongside evolution in the guise of protecting students’ academic freedom and scientific debate about truth.

Racism and Free Speech: Part II

Holocaust Denial and Holocaust Denial Laws

Denying or minimizing the significance of the Holocaust is one contemporary form of Anti-Semitic speech, often coupled with other Anti-Semitic expression. (See the following link for an overview of Holocaust Denial:

http://www.jewishvirtuallibrary.org/jsource/Holocaust/denial.html )

A number of countries, mostly in Europe (and also Israel), have laws against denying the Holocaust. (See the following article on Wikipedia:

http://en.wikipedia.org/wiki/Holocaust_denial#Laws_against_Holocaust_denial.

As with all content on Wikipedia, use caution, but this article seems to have good content [at least at the time I wrote this].)

The Wikipedia article points out that most countries with Holocaust Denial laws also have other laws slightly abridging free speech by banning speech that incites racial hatred or intolerance. A number of other countries, including Canada and the UK, have such laws banning incitement of racial hatred and sometimes use such laws to prosecute Holocaust Denial, without having specific Holocaust Denial laws.

The article has this to say about countries with Holocaust Denial laws:

“In the words of D. Guttenplan, this is a split between the "common law countries of the US, England and Wales, and former British colonies from the civil law countries of continental Europe and Scotland. In civil law countries the law is generally more proscriptive. Also under the civil law regime the judge acts more as an inquisitor, gathering and presenting evidence as well as interpreting it"[64]

This is an interesting argument, and an accurate one with regard specifically to Holocaust Denial laws, but given laws banning incitement of racial hatred in places like Canada and the UK, there seem to be at least two contrasts at play – one between common and civil law countries, and another between some common law countries (e.g. England or Canada) and others (e.g. the United States). (There is another contrast as well, also pointed out in the article – many of the countries with Holocaust Denial laws have some direct tie to the Holocaust, e.g. Israel, Germany, Austria.)

The law systems of all western nations embody a valuation of freedom, but we see in the reactions to Denial of the Holocaust somewhat different emphases on Enlightenment values stemming from the different strains of Enlightenment thought. It seems to me that the French and other continental traditions, while highly valuing liberty or freedom, have more emphasized the other two components of the revolutionary triad of liberty, equality, fraternity (hence the banning of Muslim head scarves in some public contexts). The English-speaking Enlightenment traditions have emphasized individual liberty to a somewhat greater extent, with this markedly so in the U.S. (where equality has often gotten short shrift, and fraternity never had the sort of resonance it did in France), stemming probably from the experiments with partially democratic self-government in the North American colonies, the American revolutionary experience, and the specifically American variety of Enlightenment thinking (embodied by writers like Thomas Paine and Thomas Jefferson, thoroughly grounded in the English-speaking tradition [especially influenced by John Locke], but nonetheless distinct).

Against Holocaust Denial and Holocaust Denial Laws

I’m obviously against Holocaust Denial. It’s one of the most repellent and repugnant forms of contemporary racist thought and expression.

I’m also against Holocaust Denial laws, though, or any other laws that make any political or social commentary illegal. As offensive and contrary to fact as Holocaust Denial might be, the speech act alone doesn’t significantly harm anyone nor infringe on others’ freedoms. (If Holocaust Denial is used in conjunction with or as a form of threat or harassment – that’s different, but it’s the threat or harassment, and not the offensive content, that would make such instances acts that I don’t think should be protected or allowed.)

I sympathize with the supporters of Holocaust Denial laws (especially in countries like Germany and Austria where there is a clear relationship between the nation-state and the Holocaust). I just think that restrictions on speech are not a good strategy (pragmatically or in terms of protecting free action) for combating Holocaust Denial and Anti-Semitism.

I’m aware also that my own simultaneous opposition to Holocaust Denial and Holocaust Denial laws is probably largely the result of the grounding of my own thinking in North American traditions of thinking about politics and culture. (Though such an awareness really says little about the merits of any arguments I might make; it’s simply a contextualization – and likewise with recognition that Holocaust Denial laws themselves are grounded in other varieties of Enlightenment thought.)

Why is Freedom of Expression Important even for Racist Speech?

As I argued in my previous post, freedom of expression should not be abridged lightly. Denying the Holocaust is seriously offensive and repulsive to most people. I don’t think this is sufficient to make illegal such denials. (I understand why others disagree, and even sympathize.) Protecting freedom of expression seems to me more important than protection from offense.

There are pragmatic reasons too to maintain freedom of speech even in the face of high offense. (Again, when speech also constitutes slander, direct harm, assault, or harassment, this changes things.)

Restrictions on speech drive those with offensive ideas completely out of the mainstream and contribute to the sense of persecution and martyrdom common among the racist fringe. On the other hand, allowing the free expression of even offensive ideas allows for engagement. Truly hardcore bigots are typically not open to reasoning, but more run of the mill racists, or the person who might be prone to occasional racist thinking (perhaps without even realizing it) might be. In open discussion, most can clearly see how counter-factual the sort of conspiracy theorizing typical of racist thinking is. But for engagement to happen, free speech has to be protected even at the risk of being highly offended.

Racism and Free Speech: Part I

In my previous post, I discussed briefly the recent controversy surrounding Don Imus and the issues it raises around racism and free speech. In that particular case, the issue actually seems more straightforward than many have made it out to be (Don Imus has a right to say whatever stupid thing he wants; his network has a right to control the speech they present; everyone else has the right to be offended or not at his comments and to say so), but in other instances, things are not so clear.

On the one hand, I find racism and racist speech, and other forms of hate speech, abhorrent. On the other hand, I strongly support the right to free speech. Freedom of speech is a critical component of any society that values freedom of action in general. For scholars, freedom of speech is any absolutely essential ingredient of any intellectual debate that is invigorating, interesting, or respectful of truth. Freedom of speech should only be abridged for good and serious reason.

Still, as is common to acknowledge, there are limits to free speech. To me, the right to free speech reaches a limit when speech causes significant harm to another or seriously infringes the free action of another. (I’m aware there’s a grey quality to this – what counts as “significant” or “serious” – but in actual social relations, I often find that room to interpret and maneuver are as important as principles. So, does calling member of the Rutgers women’s basketball team “nappy headed hos” constitute significant harm? It arguably caused harm – it has the character of a slander – but while the comment was offensive, racist, insulting, and I’m glad he’s off the air, in itself I’m not sure how the comment causes significant harm.) Serious slanders that harm another’s reputation and standing; speech which constitutes a threat (and so is as much an assault as the communication of topical content); speech which harasses and thereby infringes significantly on the actions of another; such speech acts should not be protected, but other speech which communicates content and ideas should be, no matter how heinous or repulsive.

I’d like in the next few posts to consider three sorts of cases involving racism and free speech issues – the dissemination of videos by racist hate groups on the YouTube site; “Holocaust Denial” laws; and academic freedom and racism in the classroom.

Racist Videos and YouTube

There is a tendency to think that the internet and other widely distributed communication technologies will bring greater freedom and democratization, and so they will to a certain extent. But that includes greater freedom for organizations like Al Qaeda to coordinate terrorist activities, to communicate propaganda and inspire others to terrorist acts, and to disseminate videos of beheadings.

In the United States, this has also meant greater ability for racists to distribute their ideas – any lone racist can put up a website or blog and reach thousands of readers. Organized hate groups have taken advantage as well of new media technologies. As a recent article in the Southern Poverty Law Center’s print and online magazine Intelligence Report points out, various Ku Klux Klan and neo-Nazi groups have already posted thousands of videos on the YouTube web site, some of which have been viewed by hundreds of thousands.

As the Intelligence Report article also points out, YouTube’s policy is to eliminate from the site explicitly racist or hate-mongering videos from the site when the site is made aware of them. Though I strongly support free speech rights, including of racists to make racist videos, I applaud YouTube’s policy. All decent people should reject racism, and to compel a private website to carry content its managers find offensive (or simply bad P.R. for the site) would be a violation of their right of free expression. At the same time, I’d be strongly opposed to any governmental restriction on the distribution of political thought, regardless of how offensive.