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Sunday, May 28, 2017

First Amendment

By Eve Mykytyn
Partially in response to the polarizing presidency of Mr. Trump, and also, I think, in response to a desire to reach the “right” results, there has been an increasing tendency in the United States to try and limit free speech.  In earlier generations, the left was more in favour of free speech and the right was more willing to suppress it (eg, the flag burning and pornography cases).
Now this seems to be a tactic favoured by many without regard to political affiliation, although of course, the speech they would choose to suppress may be quite different. Two recent examples come to mind, the treatment of demonstrators at Trump rallies and the treatment of Charles Murray at Middlebury College. Why listen and engage when you can simply attribute words to the other side and then oppose them?
The edges of free speech have always been difficult, that is, commercial speech limitations (for instance commercial false advertising or ‘news’ articles that are really advertisements) or free speech that includes or directly incites prohibited actions (throwing a bottle at a policeman conveys speech, but is still prohibited).  But the opposition to free expression I’m trying to get at here is not a within such difficult categories.
My brilliant young friend, who has a PhD in physics, challenged me, “I am outcome driven,” she said. “I don’t want people to preach against vaccines when the outcome may be that children die.” I tend to agree with her about vaccines, but I would not attempt to silence those who disagree.
First. I would have no idea what would be a reasonable way to prohibit speech I don’t like. Should the police track down these people and arrest them? Do our jails need more prisoners who have committed a nonviolent crime? Should we hold internet sites responsible for all speech? This seems to lead inevitably into a discussion of anonymity and government intrusion.
Second.  Who should determine what is ok speech?  The government? Trump? Obama? The FBI? The NSA? Scientists? Or only scientists who opposed using their gifts to create nuclear weapons?
Third. The outliers are sometimes right. Dr Kevorkian forced this country to consider assisted suicide. He earned the name ‘Dr Death’ from his campaign to use death row prisoners as voluntary experiments for various medical procedures. By any standard he was an odd and unappealing character. But he managed to force us to confront a difficult issue and think about how we wanted to handle it.
The anti vaccine people funded scientific research  into vaccines and potential causes of autism and those studies disproved the link. Just because autism manifests itself around the time children are vaccinated does not mean vaccines cause autism, but it was not an unreasonable hypothesis. And the autism studies partially so-provoked found a surprising link to paternal and maternal age that proved more promising. So even if you disagree with them, they ultimately may have helped push us to forward.
Fourth. No reasonable person likes the idea of name calling or so-called hate speech.The problem is that hate speech is difficult to define, even if we knew how to enforce prohibitions. Can a pink person claim to hate all pink people? In a private conversation? In an e mail? On a sign at a demonstration? On the pink people’s website? On his own website? What if the pink person is criticizing other pink people in an attempt to improve them?  Do the same rules apply when a purple person criticizes pink people? Does it matter whether purple or pink people constitute the dominant culture?
This is not purely theoretical. The US government and New York State (among others) have, at various times, tried to prohibit speech against Israel as anti Semitic. (They did this by prohibiting state funding or business with any group thatadvocated boycotting Israel saying that such advocacy was “abusing Jewish students.”) Like many, but perhaps not most Americans, I do not see the two as the same. Israel is a foreign country and Jews are an ethnic group in the United States and elsewhere. In this case, by trying to prohibit constitutionally protected hate speech, New York is clearly denouncing political speech as well. And it does prompt the question, do we now attempt to stop ‘hate’ speech against all groups?  Why this group?
In the Netherlands, a country that attempts to limit ‘hate’ speech, Siegfried Verbeke was convicted for simply publishing Robert Faurisson’s 1978 work questioning the authenticity of the Diary of Anne Frank. The court stated that, “By raising doubts as to the authenticity of the diary within the context of REVISIONISM …the brochure far exceeds the limits of what is acceptable within the framework of freedom of expression.” The court did not dispute the truth of the research, the legal problem was the context of hate.
And how can it be otherwise? Speech occurs within a context, and often that context includes advocating a political position. This is different than a clerk who insists she is exercising her freedom by refusing to grant marriage licenses to gay people or election officials who try to make it difficult for Blacks to vote. The clerk and the election officials are free to say what they want (so long as what they say does not impede the ability of others trying to exercise their rights), but they are obliged to obey the laws whether they like them or not, as we all are.
I would hope that ‘the marketplace of ideas’ would ultimately serve to help us discard ideas that are dangerous or wrong. If not, to the extent that we are a democracy, we have agreed to live with the decisions of the majority BUT with the most important of protections, the bill of rights. It is worth reminding ourselves that the bill of rights was specifically designed to protect minorities from the will of majorities. There is a reason freedom of speech appears in the first amendment. There are limits to the extent we are allowed to police each other.
Americans are blessed that we have a first amendment. Although it has been imperfectly and sporadically protected, it is there at least as an aspiration.
“But at least let us have no more nonsense about defending liberty against Fascism. If liberty means anything at all it means the right to tell people what they do not want to hear.”  George Orwell, in his brilliant proposed preface to Animal Farm. Sadly, usually omitted from the book.

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