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free speech fundamentalists – New Statesman

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Jan 022016

Dear liberal pundit,

You and I didnt like George W Bush. Remember his puerile declaration after 9/11 that either you are with us, or you are with the terrorists? Yet now, in the wake of another horrific terrorist attack, you appear to have updated Dubbyas slogan: either you are with free speech . . . or you are against it. Either vous tes Charlie Hebdo . . . or youre a freedom-hating fanatic.

Im writing to you to make a simple request: please stop. You think youre defying the terrorists when, in reality, youre playing into their bloodstained hands by dividing and demonising. Us and them. The enlightened and liberal west v the backward, barbaric Muslims. The massacre in Paris on 7 January was, you keep telling us, an attack on free speech. The conservative former French president Nicolas Sarkozy agrees, calling it a war declared on civilisation. So, too, does the liberal-left pin-up Jon Snow, who crassly tweeted about a clash of civilisations and referred to Europes belief in freedom of expression.

In the midst of all the post-Paris grief, hypocrisy and hyperbole abounds. Yes, the attack was an act of unquantifiable evil; an inexcusable and merciless murder of innocents. But was it really a bid to assassinate free speech (ITVs Mark Austin), to desecrate our ideas of free thought (Stephen Fry)? It was a crime not an act of war perpetrated by disaffected young men; radicalised not by drawings of the Prophet in Europe in 2006 or 2011, as it turns out, but by images of US torture in Iraq in 2004.

Please get a grip. None of us believes in an untrammelled right to free speech. We all agree there are always going to be lines that, for the purposes of law and order, cannot be crossed; or for the purposes of taste and decency, should not be crossed. We differ only on where those lines should be drawn.

Has your publication, for example, run cartoons mocking the Holocaust? No? How about caricatures of the 9/11 victims falling from the twin towers? I didnt think so (and I am glad it hasnt). Consider also the thought experiment offered by the Oxford philosopher Brian Klug. Imagine, he writes, if a man had joined the unity rally in Paris on 11 January wearing a badge that said Je suis Chrif the first name of one of the Charlie Hebdo gunmen. Suppose, Klug adds, he carried a placard with a cartoon mocking the murdered journalists. How would the crowd have reacted? . . . Would they have seen this lone individual as a hero, standing up for liberty and freedom of speech? Or would they have been profoundly offended? Do you disagree with Klugs conclusion that the man would have been lucky to get away with his life?

Lets be clear: I agree there is no justification whatsoever for gunning down journalists or cartoonists. I disagree with your seeming view that the right to offend comes with no corresponding responsibility; and I do not believe that a right to offend automatically translates into a duty to offend.

When you say Je suis Charlie, is that an endorsement of Charlie Hebdos depiction of the French justice minister, Christiane Taubira, who is black, drawn as a monkey? Of crude caricatures of bulbous-nosed Arabs that must make Edward Said turn in his grave?

Lampooning racism by reproducing brazenly racist imagery is a pretty dubious satirical tactic. Also, as the former Charlie Hebdo journalist Olivier Cyran argued in 2013, an Islamophobic neurosis gradually took over the magazine after 9/11, which then effectively endorsed attacks on “members of a minority religion with no influence in the corridors of power”.

It’s for these reasons that I can’t “be”, dont want to be”, Charlie if anything, we should want to be Ahmed, the Muslim policeman who was killed while protecting the magazines right to exist. As the novelist Teju Cole has observed, It is possible to defend the right to obscene . . . speech without promoting or sponsoring the content of that speech.

And why have you been so silent on the glaring double standards? Did you not know that Charlie Hebdo sacked the veteran French cartoonist Maurice Sinet in 2008 for making an allegedly anti-Semitic remark? Were you not aware that Jyllands-Posten, the Danish newspaper that published caricatures of the Prophet in 2005, reportedly rejected cartoons mocking Christ because they would provoke an outcry and proudly declared it would in no circumstances . . . publish Holocaust cartoons?

Muslims, I guess, are expected to have thicker skins than their Christian and Jewish brethren. Context matters, too. You ask us to laugh at a cartoon of the Prophet while ignoring the vilification of Islam across the continent (have you visited Germany lately?) and the widespread discrimination against Muslims in education, employment and public life especially in France. You ask Muslims to denounce a handful of extremists as an existential threat to free speech while turning a blind eye to the much bigger threat to it posed by our elected leaders.

Does it not bother you to see Barack Obama who demanded that Yemen keep the anti-drone journalist Abdulelah Haider Shaye behind bars, after he was convicted on terrorism-related charges in a kangaroo court jump on the free speech ban wagon? Werent you sickened to see Benjamin Netanyahu, the prime minister of a country that was responsible for the killing of seven journalists in Gaza in 2014, attend the unity rally in Paris? Bibi was joined by Angela Merkel, chancellor of a country where Holocaust denial is punishable by up to five years in prison, and David Cameron, who wants to ban non-violent extremists committed to the overthrow of democracy from appearing on television.

Then there are your readers. Will you have a word with them, please? According to a 2011 YouGov poll, 82 per cent of voters backed the prosecution of protesters who set fire to poppies.

Apparently, it isnt just Muslims who get offended.

Yours faithfully,


Mehdi Hasan is a New Statesman contributing writer and the political director of the Huffington Post UK, where this column is crossposted

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Free speech news, articles and information: – NaturalNews

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Nov 022015

Tell Congress to support the Free Speech about Science Act of 2011 4/13/2011 – Last year, the Alliance for Natural Health (ANH), a nonprofit organization that works very hard to promote and protect freedom of health speech, came up with a very important piece of legislation called the Free Speech about Science Act (FSAS) that is designed to lift the restrictions on health speech… Support the Free Speech About Science Act and restore freedom of health speech 5/27/2010 – The Alliance for Natural Health, a nonprofit organization committed to protecting access to natural and integrative medicine, has recently come up with a Congressional bill designed to stop government censorship of truthful, scientific health claims about natural foods and herbs, and restore free speech… NaturalNews to launch Free Speech video network 5/4/2010 – On the heels of increasing video censorship committed by YouTube against natural health videos, NaturalNews is announcing the upcoming launch of its worldwide, multilingual video network called NaturalNews.TV. The service goes live in late June and is designed to offer a Free Speech platform for videos… Ron Paul Introduces Three New Bills Designed to Restore Free Speech to Health 8/10/2009 – In recent years, numerous companies have been targeted, raided, and even shut down by the Food and Drug Administration (FDA) and Federal Trade Commission (FTC) for making health claims about the products they sell. These federal agencies operate outside the realm of constitutional legitimacy and thus… FDA tyranny and the censorship of cherry health facts (opinion) 5/2/2006 – In the past, I jokingly said that broccoli might someday be banned as soon as the public begins to learn about the potent anti-cancer chemicals found in the vegetable. Thats because, as I jested, the FDA wouldnt want people treating their own cancer with the anti-cancer medicines found in cruciferous… Counterthink roundup: Free Speech, Google News, and Big Brother (satire) 1/31/2006 – New provisions in the Patriot Act, which are about to become law, will make it a felony crime for protestors to step foot outside official “protest zones” designated by the U.S. Secret Service. This is how President Bush expands the freedom of Americans — by giving them all the freedom they want, as… See all 56 free speech feature articles. Police: People: Bush: Speech: President: Free: The internet: Internet: Government: Information: Society: World: Media: California: Victory: Financial: Most Popular Stories TED aligns with Monsanto, halting any talks about GMOs, ‘food as medicine’ or natural healing 10 other companies that use the same Subway yoga mat chemical in their buns Warning: Enrolling in Obamacare allows government to link your IP address with your name, social security number, bank accounts and web surfing habits High-dose vitamin C injections shown to annihilate cancer USDA to allow U.S. to be overrun with contaminated chicken from China Vaccine fraud exposed: Measles and mumps making a huge comeback because vaccines are designed to fail, say Merck virologists New USDA rule allows hidden feces, pus, bacteria and bleach in conventional poultry Battle for humanity nearly lost: global food supply deliberately engineered to end life, not nourish it Harvard research links fluoridated water to ADHD, mental disorders 10 outrageous (but true) facts about vaccines the CDC and the vaccine industry don’t want you to know EBT card food stamp recipients ransack Wal-Mart stores, stealing carts full of food during federal computer glitch Cannabis kicks Lyme disease to the curb is a free video website featuring thousands of videos on holistic health, nutrition, fitness, recipes, natural remedies and much more.

CounterThink Cartoons are free to view and download. They cover topics like health, environment and freedom.

The Consumer Wellness Center is a non-profit organization offering nutrition education grants to programs that help children and expectant mothers around the world.

Food Investigations is a series of mini-documentaries exposing the truth about dangerous ingredients in the food supply. offers alternative health programs, documentaries and more.

The Honest Food Guide is a free, downloadable public health and nutrition chart that dares to tell the truth about what foods we should really be eating. offers a free online reference database of healing foods, phytonutrients and plant-based medicines that prevent or treat diseases and health conditions. is a free, online reference library that lists medicinal herbs and their health benefits. is a free online reference database of phytonutrients (natural medicines found in foods) and their health benefits. Lists diseases, foods, herbs and more.

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Free speech news, articles and information: – NaturalNews

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Free Speech – Shmoop

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Oct 262015

In a Nutshell

The courts have been largely responsible for protecting and extending this right of speech. Over the past two centuries they have explored the protection owed all sorts of expression, including sedition, “fighting words,” “dangerous” speech, and obscenity, and all sorts of persons, including political radicals, Ku Klux Klansmen, and even students. But in doing so, the courts have also operated under the premise that a portion of the British legacy was correct: the right to speech is not absolute. As a result, the legal history of the First Amendment could be summarized as a balancing actan attempt to protect and extend free speech guarantees but also define the limits of this right in a manner consistent with the equally compelling rights of the community.

Freedom of speech would be easy if words did not have power. Guaranteeing people the right to say and print whatever they wanted would be easy if we believed that words had no real effect.

But Americans tend to believe that words do have powerthat they can anger and inspire, cause people to rise up and act out. Americans celebrate speakers like James Otis, Abraham Lincoln, and Martin Luther King, Jr., whose words inspired people to fight for independence, advance the American experiment in republican government, and dream of a more just society.

Freedom of speech would be easy if all people could be trusted to be rational discerners of truthif everyone could be trusted to sort out good ideas from bad ideas and recognize the ideologies and policies that were truly aimed at the best interests of the community.

But history has proven that people do not always recognize and reject bad ideas. The past is filled with examples of peoples and nations swayed by destructive ideas.

Freedom of speech would be easy if we just said that the right was absolute, that there were no limitations on what a person could say or print and no legal consequences for any expression no matter how false, slanderous, libelous, or obscene.

But as a nation, we have always held that there are limits to the right of speech, that certain forms of expression are not protected by the First Amendment.

The bottom line: freedom of speech is not easy. Words are powerful, which means that they can be dangerous. Humans are fallible, which means that they can make bad choices. And the right of speech is not absolute, which means that the boundaries of protected speech have to be constantly assessed.

All of these facts complicate America’s commitment to free speech, but they also make this commitment courageous. In addition, they leave the legal system with a difficult challenge. On the one hand, the courts are entrusted with protecting this right to free expression, which is so central to our national experience. On the other hand, they are charged with identifying the often blurry edges of this freedom.

Read on, and see if the courts have appropriately met both of these responsibilities.

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Calisphere – The Free Speech Movement

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Oct 262015

Questions to Consider

Where did the Free Speech Movement start?

Who were the leaders of the movement?

What did they want?

These images show UC Berkeley’s Free Speech Movement as it happened. Photographs record the standoff and the aftermath.

The Free Speech Movement (FSM) was a college campus phenomenon inspired first by the struggle for civil rights and later fueled by opposition to the Vietnam War. The Free Speech Movement began in 1964, when students at the University of California, Berkeley protested a ban on on-campus political activities. The protest was led by several students, who also demanded their right to free speech and academic freedom. The FSM sparked an unprecedented wave of student activism and involvement.

Many images in this group make it clear that the center of the activity on the UC Berkeley campus was in Sproul Plaza. One photograph shows students occupying the balconies of Sproul Hall, a campus administration building, holding FSM banners and an American flag. Another photograph shows student leader Mario Savio leading a group of students through Sather Gate toward a meeting of the UC Regents.

In defiance of the ban on on-campus political activities, graduate student Jack Weinberg set up a table with political information and was arrested. But a group of approximately 3,000 students surrounded the police car in which he was held, preventing it from moving for 36 hours. Photographs show Weinberg in the car, both Mario Savio and Jack Weinberg on top of the surrounded car speaking to the crowd, and the car encircled by protesters and police.

Other photographs that portray key people and events of the Free Speech Movement include the eight students (including Mario Savio) suspended for operating a table on campus without a permit and raising money for unauthorized purposes; Mario Savio speaking to a crowd; students signing a pledge; and students sleeping on the steps of Sproul Plaza. Photographs of students being arrested, holding a mass sit-in, and picketing in support of the student-faculty strike as they protest demonstrators’ arrests reflect other aspects of the Free Speech Movement.

Singer Joan Baez supported the FSM, and a photograph shows her singing to the demonstrators. Bettina Aptheker, who later became a professor of Feminist Studies at UC Santa Cruz, also supported the FSM. A photograph shows her speaking in front of Sproul Hall. Other photographs in this topic demonstrate that groups such as Congress of Racial Equality (CORE) and the International Workers of the World (IWW) showed solidarity and supported the FSM. Other images in this group include UC President Clark Kerr speaking at the UC Berkeley Greek Theater, and CORE co-founder James Farmer at a CORE rally.

Learn more, visit these UC Berkeley sites: Free Speech Movement Digital Archives Social Activism Sound Recording Project

1.0 Writing Strategies: Research and Technology

2.0 Writing Applications 2.4 Write historical investigation reports.

2.0 Speaking Applications 2.2 Deliver oral reports on historical investigations. 2.4 Delivery multimedia presentations.

3.0 Historical and Cultural Context Understanding the Historical Contributions and Cultural Dimensions of the Visual Arts. Students analyze the role and development of the visual arts in past and present cultures throughout the world, noting human diversity as it relates to the visual arts and artists.

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Calisphere – The Free Speech Movement

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Censorship and Free Speech | Amnesty International USA

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Oct 262015

“Free speech” isn’t so free when it costs you your liberty. In countries around the world, the right to express one’s thoughts and beliefs is under assault.

Throughout the world individuals face harassment and imprisonment as a result of exercising their right to freedom of expression.

Everyone has the right to seek, receive and impart information and ideas without fear or interference.

This right is important for the personal development and dignity of every individual and is vital for the fulfillment of other human rights.

Freedom of expression has always been a core part of Amnesty International’s work and is closely linked to the right to hold opinions and the right to freedom of thought, conscience and religion.

Amnesty International has campaigned on behalf of thousands of prisoners of conscience people who are imprisoned because of their political, religious or other conscientiously held beliefs, ethnic origin, sex, color, language, national or social origin, economic status, birth, sexual orientation or other status.

Amnesty International calls for the immediate and unconditional release of all prisoners of conscience

Human rights defenders are individuals, groups of people or organizations who promote and protect human rights through peaceful and non-violent means. Their actions depend on, and fuel, freedom of expression.

Because of their activities, human rights defenders can become a target of abuse. Governments, security forces, business interests, armed groups, religious leaders and sometimes even their own families and communities can try and silence their dissenting opinions or actions.

The internet has opened up new possibilities for individuals and groups to seek and impart information and ideas. Yet, the internet is also a new frontier where freedom of expression is being challenged.

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Censorship and Free Speech | Amnesty International USA

 Posted by at 1:41 am  Tagged with: Free Speech: A Very Short Introduction (Very …

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Oct 262015

Warburton writes, “John Stuart Mill was explicit that incitement to violence was the point at which intervention to curb free speech was appropriate. Mere offensiveness wasn’t sufficient grounds for intervention and should not be prevented by law, by threats, or by social pressure.” “A spirit of toleration should not include a prohibition on causing offence.” Times columnist Oliver Kamm agreed, “Free speech does indeed cause hurt – but there is nothing wrong in this.”

As US Justice Brennan said in Texas v. Johnson, which upheld the right of dissenters to burn the US flag as a protest, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Virtually anything can be seen as offensive, and something that is both true and important is bound to offend somebody.

But in Britain today, it seems that we have the right to have free speech, as long as we don’t use it. So members of the English Defence League are arrested and the group Muslims against Crusades is disbanded for saying things that some find offensive. But it is legitimate, if unjust and idiotic, to call for Sharia law here, and it is also legitimate, and just, to oppose Sharia law.

This government is trying to suppress dissent. It is expanding its police powers to control and limit expression, narrowing our rights of democratic participation.

The meanings of symbols like the poppy are in the realm of opinion and argument, so the state must not impose a politically correct interpretation on us.

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Free speech on public college campuses overview | First …

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Oct 262015

Friday, September 13, 2002

Free speech at public universities and colleges is at once the most obvious and the most paradoxical of constitutional principles. It is obvious because given the nature of academic inquiry, only an open, robust and critical environment for speech will support the quest for truth. At the same time, universities are at once communities that must balance the requirements of free speech with issues of civility, respect and human dignity. They are also part and parcel of the larger social order with its own, often competing set of values.

Public universities are particularly rich grounds for conflict over matters of speech. They bring together persons with often strongly held yet contradictory views. Universities, for example, have their own newspapers, some of which may be operated by the university, by the students or by an off-campus group. Public institutions in their diversity often have students and faculty of different political persuasions, sexual orientations and religious commitments. Moreover, one of the driving concepts of the university campus is academic freedom, the right to inquire broadly, to question and to promote an environment where wrong answers, seemingly absurd ideas and unconventional thought are not just permitted but even encouraged.

As Robert M. ONeil, a former university president and expert on First Amendment issues, wrote in his book Free Speech in the College Community, the fate of free speech on public campuses became increasingly important, considerably more controversial, and generally more supportive of openness over the course of the 20th century. In recent times the most contentious issues have involved the development of so-called speech codes designed to restrict certain kinds of speech deemed by the administration to be offensive.

But the issue of free expression on campus goes beyond speech codes and involves a host of other matters. They include outspoken university faculty; technologically mediated discussions that transcend through the World Wide Web the requirements of time and place so essential to traditional First Amendment analysis; visiting speakers expressing controversial views; the use of student fees to support gay, lesbian and other organizations; the reporting and editorializing of the campus newspaper; artistic expression; and the facultys freedom to pursue, publish and proclaim their research findings. In each of these instances, the underlying issue for a university is its duty to teach its students the lessons of responsibility that accompany the privilege of academic freedom.

The concept of academic freedom The concept of academic freedom and its connection to freedom of expression received full treatment in the landmark 1957 decision Sweezy v. New Hampshire. In that case, the attorney general of New Hampshire, acting on behalf of the state Legislature under a broad resolution directing him to determine whether there were subversive persons working for the state, had charged Paul Sweezy, a visiting lecturer at the University of New Hampshire, with failing to answer questions. The questions were about whether he had delivered a lecture with leftist contents at the university and about his knowledge of the Progressive Party of the state and its members. Sweezy refused to answer those questions, on the grounds that doing so would violate his rights under the First Amendment and the freedom that it provided him to engage in academic pursuits.

In 1957 the U.S. Supreme Court, in a plurality opinion by Chief Justice Earl Warren, held in Sweezys favor and in so doing authored a ringing endorsement of academic freedom. The essentiality of freedom in the community of American universities is almost self-evident. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding, otherwise our civilization will stagnate and die. In recent times, however, this broad statement in support of academic freedom has come under increasing attack, and ironically that attack has come from the liberal side of the political spectrum that the Supreme Court sought to protect in Sweezy.

Despite that seemingly ringing declaration, the justices have failed to define the exact nature and scope of academic freedom. They have also failed to develop a real constitutional theory to support it. Generally, the concept, as applied to public universities, is rooted in the First Amendments concern with free inquiry and promotion of heterodox views that critically examine conventional wisdom.

As with related areas of First Amendment jurisprudence, the justices have subscribed to the view that truth is discovered in the marketplace of ideas, culled from a cacophony of diverse views. Indeed, the Court has referred interchangeably to academic freedom and the right to political expression. The Court, however, has imposed certain limitations upon academic freedom, because employees of academic institutions are treated almost identically to all other public employees. Although the Court has not directly limited academic freedom through the public-employee doctrine, it has constricted the rights of faculty at public institutions. According to case law, speech on matters of public concern is constitutionally protected, while speech on internal institutional matters is entitled to considerably less protection. The justices have accepted that a university has a legitimate need to maintain orderly operations and to regulate its own affairs, and that its duty to do so may outweigh the employees free-speech interests. Furthermore, the Court has concluded expressly that academic freedom protects neither intimidating acts, actual threats nor disruptive acts interfering with an educational program.

Speech codes Speech codes have emerged from this constitutional milieu. They are the most controversial ways in which universities have attempted to strike a balance between expression and community order. Many major universities have introduced these codes to deal especially with so-called hate speech; that is, utterances that have as their object groups and individuals that are identified on the basis of race, ethnicity, gender or sexual orientation.

Beginning in the 1980s, a variety of studies, including one by the Carnegie Foundation for the Advancement of Teaching titled Campus Tensions, highlighted instances of racial hatred and harassment directed at racial minorities. Over the past two decades the harassment has grown to include gays and lesbians, women and members of other ethnic groups. On several campuses white students have worn blackface for sorority and fraternity parties. On one campus a flier was distributed that warned: The Knights of the Ku Klux Klan Are Watching You.

Many campuses responded to such actions by adopting policies that officially banned such expression and made those found guilty of engaging in it susceptible to punishments ranging from reprimands to expulsion. The idea, of course, was to chill the environment for such expression by punishing various forms of speech based on either content or viewpoint. These codes found strong support from some administrators, faculty and students who were convinced that by controlling speech it would be possible to improve the climate for racial and other minorities. The assumption behind the codes was that limiting harassment on campus would spare the would-be victims of hate speech psychological, emotional and even physical damage. The supporters of such codes also argued that they represented good educational policy, insisting that such bans meant that the learning process on campus would not be disrupted and that the concept of rational discourse, as opposed to hate-inspired invective and epithet, would be enshrined.

In developing these codes, university administrators relied on a well-known Supreme Court doctrine i.e., the fighting words exception developed in the 1942 decision Chaplinsky v. New Hampshire. Justice Frank Murphy, writing for a unanimous court, found that Walter Chaplinsky had been appropriately convicted under a New Hampshire law against offensive and derisive speech and name-calling in public. Murphy developed a two-tier approach to the First Amendment. Certain well-defined and narrowly limited categories of speech fall outside the bounds of constitutional protection. Thus, the lewd and obscene, the profane, the libelous, and insulting or fighting words neither contributed to the expression of ideas nor possessed any social value in searching for truth.

While the Supreme Court has moved away from the somewhat stark formation given the fighting-words doctrine by Justice Murphy, lower courts have continued to invoke it. More important, universities have latched on to it as a device by which to constitutionalize their speech codes. The University of California in 1989, for example, invoked the fighting-words doctrine specifically, and other institutions of higher learning have done the same. Some institutions have recognized that the protean and somewhat vague nature of the fighting-words doctrine had to be focused. In 1990 the University of Texas developed a speech code that placed emphasis on the intent of the speaker to engage in harassment and on evidence that the effort to do so had caused real harm. Still other institutions, most notably the University of Michigan, attempted to link their speech codes to existing policies dealing with non-discrimination and equal opportunity. That tactic aimed to make purportedly offensive speech unacceptable because it had the consequence of producing discriminatory behavior.

These codes frequently became parodies of themselves and even the subject of satirical skits on late-night television programs such as Saturday Night Live. As Robert ONeil points out, perhaps the most notable example came from the University of Connecticut. Its policy, which was struck down by a federal court, went so far as to make inappropriately directed laughter and conspicuous exclusion from conversations and/or classroom discussions violations of its speech policy.

Political correctness The Connecticut example, however, raises a far more disquieting issue. The erection of these codes in the late 1980s and the early 1990s was done, at least in part, in response to dogged pressures brought by groups determined to use the authority of the university to eliminate harassment and discrimination while pressing their own causes. As former university president Sheldon Hackney has observed: [I]n this kind of argument, one is either right or wrong, for them or against them, a winner or a loser. Real answers are the casualties of such drive-by debate. This may be good entertainment, but it only reinforces lines of division and does not build toward agreement.

As so-called political correctness ignited a nationwide debate about what universities could and should restrict, many liberals found themselves in the awkward position of supporting the very limitations on expression that they had fought against during and after the great McCarthy Red Scare of the 1950s and 1960s, and campuses divided into camps for and against. Moreover, states during these years also adopted bans on speakers, most notably those associated with the Communist Party. Hence, a new and left-wing form of political oppression seemed to be replacing an older, right-wing one, with the same effect: The views and voices of some were curtailed.

Overbreadth, vagueness & content discrimination Speech codes are vulnerable in several ways and many have been struck down on constitutional grounds. Courts have viewed the codes as failing on two important points. First, they have been deemed to be overly broad and vague, reaching groups and persons not appropriately covered by such codes. In 1989, for example, a federal judge in Doe v. The University of Michigan, threw out the universitys code because it was overly vague when it proscribed language that stigmatizes or victimizes an individual. The guidebook that went along with enforcing the code, the judge found, included a provision that restricted speech that might prompt someone to laugh at a joke about a fellow student in class who stuttered. Such speech would have been protected off campus and, therefore, it could not be excluded on campus, the judge found. Moreover, the same judge found that comments made by a social-work student to the effect that homosexuality was a disease should not have been punished. [T]he university, the judge wrote, considered serious comments in the context of the classroom discussion to be sanctionable under the policy. As such, the court condemned the universitys policy as vague and potentially without limitation in its impact on members of the academic community.

Second, and related to the issue of vagueness, the speech codes have been attacked successfully because they involve a regulation of either the content or viewpoint, not just its time, place and manner. While advocates of speech codes argued that they were essentially content neutral and protected by the fighting-words doctrine, federal judges found otherwise. In the case of the University of Wisconsin code, a federal judge in the 1991 case of UWM Post v. Board of Regents, held that the fighting-words doctrine had little value as a guide, since the code pronounced the utterance of certain kinds of speech unacceptable even if they were unlikely to result in a breach of the peace. In fact, such codes were meant specifically to exclude certain kinds of content in speech. These codes prevented a speaker from ever having a chance to convince the listener of the correctness of his or her positions, since the words to do so could never be uttered or written.

In many ways the Supreme Court dealt speech codes a seemingly devastating blow in its 1992 decision R.A.V. v. City of St. Paul. Though the case dealt with a St. Paul, Minn., ordinance that made it a crime, among other things, to place on public or private property a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender, it also had broad implications for universities. The unanimous Court held the ordinance unconstitutional on the grounds that it sought to ban speech based on content. The effect of the decision was to slow but not altogether end the use of bans on hate speech, either on or off campus.

Judicial precedent vs. collegiate action Yet just because federal courts, both high and low, have severely restricted speech codes, it does not follow that the universities have altogether complied.

As John B. Gould reports in his ground-breaking study, The Precedent That Wasnt: College Hate Speech Codes and the Two Faces of Legal Compliance, college hate-speech codes are far from dead. His careful analysis of codes enacted between 1992 and 1997 demonstrates that hate-speech policies not only persist, but have also actually increased in number despite court decisions striking them down. By 1997 the percentage of schools with speech policies had actually jumped 11% from 1992, Gould found, and, while policies against verbal harassment of minorities had dropped 3%, those covering other kinds of offensive speech had tripled. As Gould notes, this apparent contradiction between judicial precedent on one hand and collegiate action on the other is hardly surprising to students of judicial impact, but it does highlight the tenacious efforts by advocates of speech codes to continue to use institutional authority to limit speech.

The matter of the legal standing of such codes, however, can obscure the larger issue of whether they should exist at all. Of course, expression on a campus is not a free-for-all; there are limits. There are clearly forms of expression associated with conduct that can be banned, including fighting words, libel, falsification of research findings, plagiarism and cheating. In these instances, as ONeil notes, the limitation placed on expression is not a matter of the speakers viewpoint or message. Universities, he warns, need to be wary of picking and choosing which speech they will and will not support and in so doing protecting some groups by curbing the speech of others. Moreover, most university speech codes have been condemned by the American Civil Liberties Union, although the ACLU has also insisted that universities can draft disciplinary codes that are narrowly tailored to prevent and punish such behavior as intimidating phone calls, threats of attack, and extortion. However, speech that merely creates an unpleasant learning environment is not, according to the ACLU, susceptible to being regulated. That position has been generally adopted by the federal courts.

Universities are not islands The debate over speech codes reminds us of the ongoing importance of free expression on campus and the often controversial nature of its practice. Universities above all other institutions must welcome a broad range of views and protect speech that has a strong viewpoint or content in its message. New technology, for example, has created novel issues for campuses, with students and faculty using the World Wide Web to communicate disputed ideas, such as that the Holocaust did not occur, that either are offensive to many and arguably wrong, or to provide access to materials such as pornography that some find repulsive.

The list could be extended to other areas as well: the radical speaker, the dissident faculty member, the religious fundamentalist, the artist pressing the boundaries of civility and so on. As thorny and troubling as these issues may be, the history of free expression suggests that these and other matters are not going away; indeed, they are inherent in a free society generally and especially on a public university campus, bound as it is by the federal and state constitutions. Efforts to restrict the viewpoint or message of anyone on a campus puts the institution at odds with its primary educational mission: to give students the opportunity to sort through opposing ideas.

The First Amendment generally, and freedom of expression in particular, are not absolute concepts, and that is why they are at once so difficult to administer and so essential to a free society and an educated citizenry. Community interests and civility have always to be weighed in the balance. Campuses are in no way obliged to permit speech that poses a threat of imminent danger, lawlessness or the destruction of either public or private property. Campus newspapers are not free to print whatever they want; the law of libel applies to them just as it applies to every other journalistic enterprise. Child pornography is unacceptable, whether on or off the campus. What is criminal away from the campus is criminal on campus. Universities are not islands. They are part of a larger community of values and interests, albeit that they enjoy the special privilege of and responsibility for their academic freedom and the goal of unfettered inquiry that animates it.

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Free speech – OpenLearn – Open University

 Free Speech  Comments Off on Free speech – OpenLearn – Open University
Oct 192015

David Edmonds: This is Ethics Bites, with me David Edmonds.

Nigel Warburton: And me Nigel Warburton.

David: Ethics Bites is a series of interviews on applied ethics, produced in association with The Open University.

Nigel: For more information about Ethics Bites, and about the Open University, go to

David: For John Stuart Mill the limit of freedom of speech in a civilized society was roughly the point where a speaker was inciting violence. But perhaps it isn’t as simple as that. For free speech, in the well-known example, doesnt entitle us to shout “Fire! in a crowded theatre. Where then should we draw the line, and why? Tim Scanlon, Professor in Harvard Universitys philosophy department, has spent much of his career reflecting about issues of toleration and free speech. His initial writings on the topic stressed that the value of free speech lay in autonomy in particular, the right of individuals to have access to information so as to be able to think for themselves. Now he has a more nuanced view which takes into account the interests of both speaker and listener, and empirical considerations about the danger of granting powers of regulation to the state.

Nigel: Tim Scanlon, welcome to Ethics Bites.

Tim Scanlon: Im glad to be here. Thank you very much.

Nigel: Now the topic were focusing on today is free speech. Presumably youre an advocate of free speech at some level, but lets start by getting clear what do we mean by free speech?

Tim: By free speech I mean the need for restrictions on the way in which governments can regulate speech. Whether speech is free in a further sense, that is whether people have opportunities, is a very important thing, but its not the issue of free speech.

Nigel: Thats really interesting, because you immediately began by talking about regulation and controlling what can be said.

Tim: Well certainly speaking is not without costs: what people can say can cause injury, can disclose private information, can disclose harmful public information. Its not a free zone where you can do anything because nothing matters. Speech matters. But because it matters its very important that governments who want to regulate speech, for example to prevent things that would be embarrassing to politicians, or otherwise upset the government, its important that that power should be restricted.

Nigel: The word speech seems to imply something spoken, but clearly speech stands for expression here, its not just speech is it?

Tim: No, its not just speech. In one respect, what defines our thinking about free speech is not the particular acts that constitute speech, but rather the reasons one has for wanting other people to notice for wanting to make some kind of communication with others. Speech is just one way of doing it. How you dress, how you act in public. All those things can signal to other people your values, what kind of life you favour, and the fact that the way you act, as well as the way you speak, can signal those things provide reasons for other people to want to prevent you from doing those things – because they dont want those signals to be out there in the public space. The question of free speech is the question of how that impulse to regulate what can be out there in the public space need itself be controlled.

Nigel: Ok, well lets think about the justifications for controlling free speech. Youve devoted quite a lot of your life to thinking philosophically about the limits of toleration. Whats the philosophical underpinning of your position?

Tim: Well one philosophical underpinning in driving any of this has to be understanding the reasons why people should care about having these opportunities that might be restricted. I began by talking about how free speech has to do with limitations on government power. But of course the value thats at stake is affected by things other than what the government does, its also affected by how corporations can control access to television and other important media. So here we have two sides. On the one hand, philosophically one of the first things you want to do in understanding free speech is to understand what are the values that are at stake, why should we care about it? Thats much broader than the question of government regulation. On the other hand, if you think mainly in terms of constitutional provisions, restrictions on the law, there were talking particularly about government.

Nigel: Often people talk about free speech as arising from individual autonomy. We should have a freedom to be who we are and to express ourselves in the way that we wish to. Its a basic right of humans to express themselves…

Tim: I dont know if I want to say its a basic right. I want to say that people have reasons, all kinds of reasons, to want to be able to express themselves. Although when were talking about the permissible limits on speech we need to focus not only on the interests that people have in wanting to get their own ideas out there, but also the interests that people have as potential audience members to have access to what other people want to say. Philosophical discussions of the topic divide, to some extent, as to whether they focus mainly on speaker values or audience values, and I think its important to take both into account.

Nigel: OK, well with speaker values the justification tends to be in terms of autonomy; but with audience values we start talking about the consequences for the audience. The classic case there is with John Stuart Mill talking about the limits of free speech being set at the point where you harm another individual.

Tim: Thats true although, in a way, autonomy based views on the whole tend to focus on audience values – because its the audience who wants to have access to information to make up their minds. In so far as autonomy refers to the interests we have in being able to form our own opinions about how to live, what to do, how to vote, an autonomy based view tends to focus on audience values. By and large we think of speakers as already knowing what they want and what they value, and wanting to express it. Thats a kind of freedom: but it may not be helpful to call it autonomy. In general, its a case of once burnt twice shy. That is, having originally in my first publication given a theory of free speech that focused on autonomy, Ive since come to think that its a word thats probably a good idea to avoid. Because it can mean so many different things. On the one hand it can mean freedom, that is the ability to do things, on the other hand it can be a particular value, or in Kants case a particular inner power. Its a misused word so I like to avoid it.

Nigel: Perhaps it would be easier to focus on a particular case to bring out the sort of considerations that are relevant here. If we take the case of people expressing contempt for a particular racial group – some people might argue that is a consequence of free speech that people should be allowed to say offensive things. How would you approach that case.

Tim: Well there seems to be a divide on this across different countries. That is, in the United States the law and much of academic opinion is much more in favour of the idea that free speech is incompatible with having laws that ban speech simply because theyre offensive – laws for incitement against racial hatred or expressing contempt for other groups are by and large held to be unconstitutional in the United States whereas in Britain, France, Canada, laws are quite different.

Now Im in this sense typical of my country. Im inclined to be rather suspicious of laws that restrict speech on the grounds that it gives offence to a particular group. Not that I favour speech that does that, I think its terrible; the question is whether you want to have a law that restricts it. And the natural question is why on earth shouldnt you? After all it does harm people. Immigrant groups, racial minorities, are in a vulnerable position vulnerable because they suffer from status harm. Widespread opinion that they are in some way inferior, ought not to be associated with, ineligible for various jobs, and so on.

So why shouldnt speech that supports and perpetuates those attitudes be restricted? The problem is that there are so many ways in which speech can be offensive to different people, that if we start allowing offence to be a ground for restriction its very easy to generalise it, and the restrictions on speech, particularly on political speech, become too tight in my opinion.

Now theres an empirical question here, and I think the jury is out. Canada has laws against speech that foments racial hatred, and Britain does, and so on. So against the free speech advocates of my sort you can say, well they have these laws, the sky hasnt fallen. Political speech continues. On the other hand race relations havent improved much either. So the jury is to some degree out. And with respect to the UK I think its fair to say that a somewhat greater tolerance for restrictions on expression hasnt served the political culture well. Theres also much more tolerance of restrictions on disclosures of official secrets and so on and I think these havent helped political discussion in the UK. So I think the US has benefited to some degree to what might seem to some people an overly rigorous protection of free speech.

Nigel: That strikes me as a slippery slope argument: the idea that you cant take one step down the slope without ending up at the bottom. So you cant take one step by restricting certain sorts of hateful speech because the consequence will be that all kinds of other sorts of speech will be restricted.

Tim: Well in the first instance its not a slippery slope argument. It is a question about what would be the effect of having that particular restriction. So I think the case turns on that. I then move to saying if you look more generally, the more permissive attitude towards restrictions on speech hasnt been a good thing. The view of free speech that Ive come to does give a heavy weight to calculations of that kind. The question is, is a particular regulatory power, the power to restrict speech on certain grounds, is that a power we can give to government without placing important speaker and audience interests unacceptably at risk? Thats the question. And the view that there is a right to speak in certain ways comes down to the claim that if the government were allowed to prevent speech of that kind that would be a dangerous power, that we shouldnt allow, because the values of being able to speak and the values of being able to have access wouldnt be adequately served; and thats an empirical question which powers are dangerous, but thats my view.

Nigel: And the danger that youre speaking of, is that the danger that effective government wont be possible because there wont be sufficient airing of different views?

Tim: Thats one value. That is preserving the kind of opportunity to speak and influence people, and the kind of opportunity on the part of voters to be informed that we need to have a functioning democracy. Thats certainly one value. But there are also more personal values. People have good reason outside of politics to want to be able to influence the development of their society culturally, to express their attitudes about sex about art about how to live. Audiences benefit from having access to these expressions. We want to hear a diversity of views.

On the other hand people want to protect what the dominant attitudes in society are. They dont want people to express permissive attitudes towards sex or attitudes about religion that they disagree with, because that may cause the culture to evolve in ways in which they would prefer it didnt evolve. We all have feelings of that kind; I dont think its just these awful intolerant people. I feel that my society places a greater emphasis on sex, sexual attractiveness and so on than would be desirable. I dont like living in a society thats saturated with these feelings; but thats the price of living in a free society.

I also think religion is growing in its influence and so the sense that one ought to be religious or pay deference to religion is growing in strength in the United States, from my point of view that doesnt make it a society more like the one I would like to live in. But thats the price of living in a free society. There are these ebbs and flows of cultural opinion and if you want to live on terms of freedom with other people you have to be willing to accept the society that results from everybody having access to a public space you just have to accept it.

Nigel: I can see how censoring somebodys political opinions might be dangerous to good government. But censoring somebodys freedom to print pornographic images for instance, how can that harm good government?

Tim: My point in my answer to your last question was that providing the conditions necessary for good government isnt the only thing thats at stake in free speech. People who have views about, say, particular sexual relations, want to be able to express this not only as a matter of self expression, but they want to be in contact with other people who have similar views. And when regulation of that kind of expression is allowed the first thing thats likely to happen is that the minority views of this are the most likely to get restricted, and I think thats a cost. I dont like living in a society where there’s lots of pornography and people very interested in that, but, youve got to live with it.

Nigel: Another area where its difficult to see where to draw the line is with factual information that could be used in terrorist activity. So for instance if somebody wants to publish the details of how to make a certain kind of bomb on the internet, is it appropriate to censor them?

Tim: I think it is. I dont think we dont have an interest in access to information about how to manufacture bombs which is parallel to our interest to wanting to have information about what the government is actually doing, or to be able to communicate with others about sexual, moral or religious matters. So I dont think theres a similar threat to our interests as potential speakers or to our interests as audiences who want to be able to form our opinion about things if technical information about armaments and explosives is restricted.

The main worry there seems to me to be at the margin; whether some kinds of information about technical questions about military armaments become important political things that we need to know about. Like we need to know whether a missile defence system would actually work! Now theres a fair amount of distance between having a recipe for making nerve gas at home and having some information about how well the governments attempt to build a missile defence system have actually worked. But in between, there might be a worry. But on the whole Im relatively comfortable with the idea that technical information about the production of armaments is something that its permissible to regulate.

Nigel: Weve talked quite a lot about the differences between the law in the States and the UK, Im intrigued to know whether you think that the kinds of principles that you come up with in your philosophy are universalizable across societies and countries, or whether they are restricted to the particular circumstances of particular countries at particular times?

Tim: On the whole I come down on the universal side. I once had an experience speaking to a seminar that involved people from 27 different countries, academics and non academics. And theyd asked for a presentation on free speech. So I said the question of free speech is the question of whether the power to regulate speech in a certain way is the power that its too dangerous for governments to have. And thats a question of whether, if they had that power, the interests of speakers or audiences would be unduly restricted. And those who believe in free speech also have to believe that we should forbid governments from having this power at acceptable cost. And in the discussion, people all objected; they said your discussion entirely focused on things in the United States. It maybe alright in the United States to prevent the government from restricting speech, but that wouldnt work in India, someone said. Because in India if you allowed people to say certain things, then some people would riot. And a Turkish man said, a man in our law school thinks that bourgeois rights are nonsense, and obviously he cant be allowed to say that kind of thing; but you dont have that problem in the United States. The effect of this discussion was to reinforce my universalist tendencies and to think that things arent that different all over. Because, of course, exactly those questions come up in almost any society.

Now of course societies vary; the risks may be greater in some societies than in others. But on the whole theres a lot of commonality there. As far as the question of riots is concerned, this is whats known in the United States legal arguments as the hecklers veto. If you allow the threat of a riot to be a reason to prevent somebody from speaking all a group has to do to stop somebody from speaking is to threaten to riot. So the first response of the State has to be to stop the riot or put the speech in a venue where it can be protected; those are things the state can do.

Places where people dont believe in free speech, I think they dont believe in free speech largely for the reasons Ive just mentioned, they may think, well in a stable society its ok, but for us the risks are too great. Its possible that sometimes theyre right about that, but on the whole I think its a matter of not having enough faith in your fellow citizens and being too worried about what the consequences will be. Of course its in the interests of governments to encourage these fears, because its in the interests of governments to be able to regulate speech. Not because theyre evil, but just because theyre people who have their objectives and they want to be able to pursue those objectives in what seems to be the most effective way. Governments everywhere have reason to want to restrict speech; so everywhere we need laws to prevent them from doing that.

Nigel: Free speech is one of those ideas that people are prepared to die for. How would you place free speech relative to other important rights or ideas that animate people in political situations?

Tim: Well free speech first has a particular instrumental value, because its very important as a way of preventing other kinds of rights violations. People can be imprisoned in secret and one of the best ways of trying to stop that kind of thing is to try to bring it into the public sphere where political opposition can be mobilised. So freedom of speech has an important instrumental role in protecting other rights. There are cases where freedom of speech can seem to conflict with other rights. For example the right to a fair trial. In order to have a fair trial we need to prevent people from being convicted in advance in the press, so the jury cant be convened that won’t already have made up its mind about guilt. That is a clash.

When there is a clash of values of that kind one has to try to work out a strategy to deal with it. I think on the whole, by sequestering juries, by allowing defence attorneys to examine juries in advance and to ask them about their prejudices, on the whole I think one can protect the right to a fair trial, without placing many restrictions on what can be said. I dont want to say there is never a conflict, there can be, but I think on the whole its possible to work them out.

Nigel: Tim Scanlon, thank you very much.

Tim: Thank you, its been a pleasure talking with you.

David: Ethics Bites was produced in association with The Open University. You can listen to more Ethics Bites on, where youll also find supporting material, or you can visit to hear more philosophy podcasts.

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Free speech – OpenLearn – Open University

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Hate Speech, Sex Speech, Free Speech: Nicholas Wolfson …

 Free Speech  Comments Off on Hate Speech, Sex Speech, Free Speech: Nicholas Wolfson …
Oct 032015

A powerful indictment of contemporary attacks on free speech, this book argues for a vigorous First Amendment jurisprudence protecting even offensive types of speech. In recent years, political activists, academics, and legal specialists have attacked traditional notions of free speech protection as they concern hate speech, obscenity, and pornography. They have called for changes in Supreme Court doctrine in defining the First Amendment and have argued that the traditional view of free speech actually creates and perpetuates a society in which the weakwomen, minorities, the poorhave no voice. While recognizing their fears, Nicholas Wolfson argues that it is impossible to separate bad speech from good speech without fatally compromising the uniquely American concept of free speech, and that efforts to modify our concept of free speech for a greater egalitarian good can only result in undue state influence over private speech. In a keenly argued analysis, he finds that, in the end, the preservation of free and vigorous speech requires a strong First Amendment protection for even the most hateful of speech.

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Hate Speech, Sex Speech, Free Speech: Nicholas Wolfson …

Free Speech, Language, and the Rule of Law

 Free Speech  Comments Off on Free Speech, Language, and the Rule of Law
Oct 032015

Contents Some Thoughts on Free Speech, Language, and the Rule of Law by Thomas Streeter

(from Robert Jensen and David S. Allen (eds.), Freeing the First Amendment: Critical Perspectives on Freedom of Expression, New York University Press, 1995, pp. 31-53.)

This chapter discusses the relevance of research and reflection on language to recent critical trends in thinking on free speech. There is a tendency to interpret many of the recent revisionist approaches to free speech as if they were simply calls for exceptions to otherwise clear cut rules and principles, as if, say, pornography or racism are so exceptionally evil that they fall outside the parameters of the kinds of speech that are “obviously” protected under the First Amendment. This misses the fact that the new approaches, with varying degrees of explicitness, involve theoretical and epistemological challenges to the underlying premises of free speech law in general; over the long run, what the new approaches are calling for are not exceptions but a restructuring of free speech law as a whole. The ideas driving this profound rethinking come from a variety of traditions, including various currents of feminism, literary theory, and theories of race and ethnicity. This chapter focuses on just one of those traditions: the complex twentieth century theorizing of language, sometimes called the “linguistic turn” in twentieth century philosophy. Although the linguistic turn is only one aspect of the new thinking about free speech, and although its importance and character is not agreed upon by all those advocating the new thinking, calling attention to it is useful because it nicely highlights some conceptual difficulties of the traditional framework and because it helps differentiate the revisionist criticisms from social determinist and other subtly authoritarian criticisms of free speech.

On the one hand, this chapter argues that the linguistic turn involves some revelations about the nature of language and human communication that do not accord well with the understandings of language implicit in free speech law, particularly with the metaphor of the marketplace of ideas. On the other, it argues that part of what is at stake is the way American culture envisions the rule of law as a whole. In particular, important currents of the understanding of the rule of law suggest the possibility and necessity of constructing rules, procedures, and meanings that transcend or can be abstracted from context, whereas the linguistic turn suggests that this is impossible, that meanings can be determined only in relation to particular contexts. The final part of this chapter, therefore, suggests some avenues for exploring free speech in its historical and social context, as opposed to efforts to abstract it out of context.

In the course of a discussion of the campus hate speech controversy, literary critic Henry Louis Gates (speaking from an African American position) provided the following hypothetical examples of potentially “harmful” speech directed at a minority student:

Sociolinguistics offers an answer to the first question: the social phenomenon of linguistic style. It is not the contents of the first statement that give it force; the argument it makes is, at best, dubious and obfuscatory, whereas the second statement at least would communicate the true feelings of the speaker towards the hearer with considerable precision. The first statement’s power comes from its style.

It is a well established fact that fluency in any language involves mastery, not just of a single, “correct” version of a language, but of a variety of styles or codes appropriate to specific contexts.[2] Gates’ first example is a case of the formal or “elaborated” style of contemporary English, which is highly valued in academic and professional settings. It is characterized by, among other things, Latinate vocabulary (“demanding educational environments” instead of “tough schools”) and elaborate syntax. The second is an example of informal or restricted style, characterized by ellipsis (omitting “You get out of my face . . . “) and colloquial constructions.

Linguists also have long insisted that, in an absolute sense, formal style is no more correct or better for communication than informal style. Scientifically speaking, what makes a style appropriate or inappropriate is the social context in which it is used: in an academic setting, the formal character of the first example gives the statement force, but in another context, say, a working class bar, it might only elicit laughter and derision whereas the second statement might have considerable impact. In the appropriate context, therefore, one can use informal style brilliantly and subtly, and conversely, it is quite possible to speak in a thoroughly formal style and yet be inept, offensive, or simply unclear.[3]

What style differences communicate, then, are not specific contents, but social relations between speakers and listeners, i.e., relations of power, hierarchy, solidarity, intimacy, and so forth. In particular, formal language suggests a relation of impersonal authority between speaker and listener, whereas informal language suggests a more intimate (though not necessarily friendly) relationship. You can petrify a child by interjecting into an otherwise informal conversation, “No you may not.” The shift to formal style (no ellipsis, “may not” instead of “can’t”) shows that the speaker is not just making a request, but is asserting his or her powers of authority as an adult over the child listener.

Gates’s first example would be more wounding to a minority student, therefore, because, by couching itself in a formal, academic style, it is rhetorically structured as the expression of “impersonal,” rational, and thus institutionally sanctioned, sentiments. It thereby invokes the full force of the authority of the university against the student’s efforts to succeed in it. Gates’s second example, with its informal style, suggests that one individual, the speaker, harbors racist ill will towards the listener. The first example, by contrast, suggests that, not just one individual, but the entire institution of the university in all its impersonal, “rational” majesty, looks upon the student as unfit.

So why is it easier to penalize the second kind of statement than the first, when it is the first that is potentially more damaging (which is not necessarily to suggest that we should penalize the first kind of statement)? Contemporary law in general is insensitive to matters of linguistic style. Hollywood action movies have made a cliche of lampooning the incongruity of reading the highly formal, legalistic Miranda clause during arrests, which are typically emotional encounters between working class cops and criminals, i.e., contexts where informal style would be appropriate.[4] In First Amendment jurisprudence, where language is not only the vehicle but the subject matter of the law, this insensitivity can lead to conceptual confusion. Linguistic style may be a fact of life, but traditional legal liberal ways of thinking about free speech, especially those encapsulated in the metaphor of the “marketplace of ideas,” are strangely incapable of addressing it.

The marketplace metaphor in free speech law involves imagining symbolic and linguistic phenomena as if they were analogous to market exchange, which implies a number of things about language. Most obviously, it implies that language is primarily an exchange, a transference of something (perhaps “information”), from one person to another. Hence, in linguistic exchanges what matters is the contents of the exchange, not the style or form in which it is “packaged,” just as in real market exchanges it makes little difference if you pay by check or cash. Yet, as in Gates’ example, in language the “package” can be everything. The marketplace metaphor, then, draws our attention away from the importance of just the kind of stylistic differences that sociolinguists say are central to the workings of everyday language.

The marketplace metaphor, furthermore, tends to imply that the good that comes from unconstrained human speech comes from some neutral, universal, mechanical, and leveling process, a linguistic equivalent to the economist’s invisible hand out of which will emerge truth, or at least some form of democratic justice. That neutral, mechanical process, furthermore, is contrasted in law with “arbitrary” government interference. And yet, in several ways, linguistics has taught that language itself is arbitrary at its core; in language, the boundary between “natural” processes and arbitrary ones is difficult, some would argue impossible, to discern.

Linguists say that language is “arbitrary” in the sense that meaning emerges, not from anything logically inherent in words or their arrangement, but from the specific conventions and expectations shared by members of a given speech community, conventions and expectations that can and do change dramatically from time to time and place to place. Aside from language in general and perhaps some very deep-level aspects of syntax, there is very little that is universal, neutral, or mechanical about human languages. This insight grew out of the observation that languages differ profoundly from one another, not only in terms of the meanings of specific words, but in terms of basic aspects of the ways those words are arranged: some languages have only two or three words for color, for example, others have nothing English speakers would recognize as verb tenses. But it has also been bolstered by detailed analysis of the workings of language in general. Meanings are fixed neither by logic nor by some natural relation of words to things, but by the contextual and shifting system of interpretation shared by the members of a given speech community.

The arbitrariness of language presents two problems for traditional thinking about freedom of speech. One problem involves legal interpretation, the belief that properly expert judges and lawyers following the proper procedures can arrive at the correct interpretation of a dispute. Often described as the problem of the indeterminacy of law, the purely contextual character of meaning would suggest that legal decisions will always be forced to fall back on contingent, social or political values to decide where the boundaries in the law lie.[5] It is in the character of language, in other words, that a judge will never be able to look at the text of the Bill of Rights and legal precedents to decide whether or not flag burning is protected by the First Amendment; she will always in one way or another be forced to make a choice about whether or not she thinks it should be protected, and will always be faced with the possibility that a reasonable person could plausibly disagree.

Indeterminacy should not be mistaken for the absurd assertion that any word can mean any thing, that there is no stability to meaning whatsoever. As deconstructionist literary critic Barbara Johnson puts it,

A second problem suggested by the arbitrariness of language involves the impossibility of abstracting from context that is a linchpin of the formalist legal logic which today dominates thinking about freedom of speech. According to some understandings of the rule of law, justice is best served when applied according to indisputable, clear rules of procedure and decisionmaking. Hence the First Amendment protects Nazis marching in Skokie and flag burning, not because anything good is being accomplished in either case, but because the important thing is to uphold the rules impartially and unequivocally. And being impartial and unequivocal typically means that rules are upheld regardless of context.

If one were to suggest, say, that the harm from Nazis marching in a Jewish suburb outweighs the value of protecting their speech because of the history of the Holocaust and the irrational and violent character of Nazi ideology, or that flag burning is such an ineffectual form of political expression and so potentially offensive that nothing would be lost by restricting it, the formalist counterargument is that this would “blur” the boundaries, cross what lawyers call the bright lines, upon which our system of justice rests: the rules are more important than the context.

An important example of formalist reasoning is the Bellotti case, in which the Supreme Court struck down a Massachusetts law limiting corporate campaign donations. The Court reached its decision, not simply by weighing the positive and negative effects of the law, nor by deciding that it was a good thing in this case to grant large corporations the same rights as private individuals. The decision was based on the argument that even considering the source of the campaign donations (the “speech” in question) was inappropriate; every individual has a right to unrestricted political speech, and even asking whether corporate “individuals” are as worthy of protection as ordinary individuals would blur the bright lines upon which the rule of law is based.[7] Another example would be American Booksellers Association, Inc. v. Hudnut, when the court threw out an anti-pornography ordinance. The court argued that, even if pornography has negative effects, the same might be said of other forms of protected speech. From this it concluded that “[i]f the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech,” and thus negative effects do not justify restrictions. As Stanley Fish has pointed out, this is a peculiar logic: faced with facts which call into question the speech/action distinction which underlies the law, the court upholds the law against the facts which would undermine it. But it is a typically formalist logic: the point is to uphold the rule of law, i.e., abstract, neutral principles and procedures; if the coherence of those abstract principles is threatened by facts, you throw out the facts, not the principles.[8]

The problem is that, if the meanings of statements emerge from convention, from social context, then the insistence on excluding context, on divorcing rules and their enforcement from social and political complexities of a situation, is an impossibility. This is not simply an argument that it would be reasonable to sometimes include a little bit of context in legal decisionmaking, that First Amendment law should lean towards a more policy-oriented weighing and balancing of principles and rights in special circumstances such as highly concentrated or technologically inaccessible media. Rather, the argument is that formalist arguments of free speech can not be doing what they claim, that context is present in decisions in spite of claims to the contrary. Decisions that grant protection to marching Nazis and flag burning are not simply decisions that show a preference for bright line rules over context; on the contrary, such decisions are themselves a product of a particular social and historical context, and in turn contribute to the making of particular contexts.

The collapse of the boundary between “natural” speech and arbitrary interference with it implied by indeterminacy creates a further problem for First Amendment interpretation: the collapse of the distinction between speech and conduct or speech and action. The exercise of free speech, the “free marketplace of ideas,” is imagined as a kind of neutral, free and equal exchange, contrasted with unfree or arbitrary coercion. What disappears in the face of the arbitrariness of language is the coherence of that contrast, the faith that there is an important categorical distinction between people talking and arguing and people coercing one another through some kind of action. It is now an axiom of sociolinguistics and many other schools of thought that language use is an important kind of social action, that words do not merely reflect reality or express ideas, they primarily are a way of doing things, a way of acting in the social world. Although J. L. Austin began his classic How to Do Things With Words by describing a limited category of statements that do things–“performatives”–he later enlarged the category and made its boundaries much less clear by acknowledging the frequency of “indirect performatives,” i.e., statements that might appear to be merely descriptive but in context can be shown to be in fact doing something.[9] Some have since argued that in a sense all utterances are performatives.

None of which is to suggest that a subtle verbal snub is identical to punching someone in the nose. We do not call trespassing on someone’s lawn and shooting them identical, though they are both categorized as violations, as coercive. When Stanley Fish argues that speech in everyday life should not be imagined as if it takes place in “the sterilized and weightless atmosphere of a philosophy seminar,”[10] or when Matsuda et. al argue that words can wound, the argument is not that every slight or insult ought to be treated as if it were assault and battery.[11] What they are criticizing is the belief that there is a fundamental, categorical dichotomy between speech and conduct, that the dichotomy is clear and generalizable enough to form one of the principle structures of our law and democracy.

All this points to a deeper critique of the marketplace metaphor. The metaphor implies that linguistic exchanges, like market exchanges, take place between individuals who, in the absence of some outside interference, exist merely as individuals, not as persons in particular contexts with particular backgrounds. These are the famous abstract individuals of legal liberalism, the persons referred to as “A” and “B” in law school lectures on contracts: persons bereft, in legal liberalism’s ideal world, of gender, class, ethnicity, history. People the world over, the marketplace metaphor suggests, all share the characteristics of being in essence rational, self-interested individuals, inherently active and desirous. Language use, then, is a matter of expressing pre-existing interests; it is a tool used by individuals to buy cheap and sell dear in the marketplace of ideas. Language is something one uses.

But, according to at least some schools of linguistics and language philosophy, language is also something that happens to us, something that “speaks us” as much as we speak it. Language is an inherently collective, social precondition to individuality. Most definitions of language exclude any notion of a language possessed by only one individual; for language to be language it must be shared. People do not choose, after all, their first language; in a sense it chooses people. And the particularities of the language that chooses people, many would say, in turn shapes their consciousness, their sense of what counts as reason, their perceptions of the world and their selves within it, even their desires.[12]

This is not to imply, however, some kind of simple social determinism. Here is where the linguistic turn in philosophy suggests something very different from the common assertion that individual behaviors are “caused” by social structures. For one of the central discoveries of linguistics and language theory is what Barthes called “a paradoxical idea of structure: a system with neither close nor center.”[13] Except for analytical purposes, linguistic structure does not exist outside of anyone’s use of it. Language is certainly structured, in some sense of that word; linguistic grammar is the central example of structure, although scholars have brought to our attention many higher-level structures like linguistic style. But that structure is not simply some kind of exterior constraint, a Hobbesian limit on individual action; it is not the “structure” of, say, Durkheimian sociology or orthodox Marxism. It is dynamic, changing, and creative. As Chomsky pointed out, one grammatical system is capable of generating an infinite variety of sentences. And grammar is a practical, thoroughly collective human accomplishment, not an exterior system imposed upon individuals by a reified “society.” It is enabling as well as constraining: linguistic structure is a precondition of self-expression, not just a limit to it.

Language thus troubles both legal liberalism’s happy vision of rational individuals and its dark side, its Hobbesian view of society as the basic constraint on individuals; it calls into question the marketplace metaphor’s notions of both individual freedom and social order. The attraction of the marketplace metaphor in law is much the same as the attraction of marketplace theory itself: it posits a realm that is both free of arbitrary constraint, and yet ordered by the certain yet neutral and unequivocal rules of the marketplace. What the fact of linguistic structure calls into question is not merely the “freedom” of linguistic exchange but also its certainty, its divisibility from “arbitrary” external restraints and interference.

When MacKinnon argues that pornography is a form of action, not of speech, or when Matsuda argues that the context of racism and the subjective experiences of minorities in the U.S. ought to be a primary consideration in the creation and interpretation of hate speech laws, in the long run what motivates these scholars is not just a desire for specific exceptions to an otherwise intact First Amendment doctrine.[14] The suggestion is not simply that pornography is so damaging, or that the specific horrors of slavery and its legacy of racism so evil that unusual exceptions to free speech protection are called for (though the evils of rape-culture and racism very well might be the most urgent problems in the U.S. today). Rather, the suggestion, at least implicitly, is that the evils of rape-culture and contemporary racism force us, or should force us, to fundamentally reconsider how American law thinks about freedom, speech, and their regulation.

Furthermore, the critique of the oppositions that underpin free speech law such as speech and action, rules and context, or politics and law, need not be read as a simple denial that any differences exist. It is obviously not the case that there is no difference between slighting someone with a racial epithet and hitting them in the head, or between decisionmaking in courts and decisionmaking in legislatures. The argument is rather that these differences are neither clear nor generalizable enough to coherently underwrite a system of decisionmaking that claims to be able to transcend context and achieve the neutrality that is the goal of law in the first place.

Inquiry does not come to an end when one accepts the criticisms of the formalist First Amendment framework, and acknowledges the inevitability of politics and context. Stanley Fish’s quip notwithstanding, there is such a thing as free speech. If something is not what we think it is, it does not follow that it does not exist. Free speech is one of the major and most influential political and legal discourses of this century; for better or worse, it has helped make American society, our world, what it is. So the task is to rethink the character of free speech, to specify its historical context and political incidence. This is a large task; here I can only speculate about one aspect of the historical context of free speech, its relation to notions of the rule of law, and one aspect of its political incidence, its relations to social class.

The concept of a neutral, objective system of law that transcends politics is not just an abstraction important to lawyers and judges. (Lawyers and judges, in fact, are often acutely aware of just how political and unstable legal interpretation can sometimes be on a day-to-day basis.) A faith in the neutral rule of law is an important element of American culture, of the popular imagination. Evidence for this can be seen in the way that legal institutions and documents are more often celebrated, more often used to define American democracy, than political institutions and accomplishments. One might think, for example, that in an electoral democracy the most important historical event, the event most widely celebrated, would be the extension of the vote to the majority of the population. Yet most citizens do not know the amendment or the year in which the vote was extended to women, much less the history of the long political struggles that led to the passage of the nineteenth amendment in 1920. On the other hand, the Constitution is regularly celebrated in fora ranging from scholarly conferences to reverential Philip Morris ads, even though that hallowed document underwrote a legal system that upheld slavery for three quarters of a century, excluded women from voting for more than half a century after that, and did not come to rigorously protect political dissent until about fifty years ago. Nonetheless, American culture tends to worship the Constitution and remain ignorant of the history of universal suffrage. The story of the Constitution is a story of law, whereas the story of women’s suffrage is a story of protracted political struggle. And in some ways, at least, mainstream American political culture worships the former more than the latter.

What is the substance of this worship? What makes law neutral, and how does it support democracy? The short answer might be that if a society makes its decisions according to fixed rules instead of individual or collective whims, individuals will be less able to gain systematic advantage over others. The long answer would involve an extended and controversial discussion of a large chunk of the literature of legal theory and political science. But there is a mid-range answer based in historical observations, which suggests that in the U.S. two patterns of argument or logics have tended to shape legal decisionmaking, particularly in this century. One logic has been called alternately formalist, classical, bright line, rule-based, or simply legal justice; the other, standards-based, revisionist, policy oriented, realist, or substantive justice.[15]

Arguably, the First Amendment has become the centerpiece of the American faith in the rule of law in this century, and not coincidentally, First Amendment law is also highly formalist. Formalism is not simply absolutism, a belief that there should be no exceptions. It is more a way of thinking about what law and legal interpretation are and how they work. (Describing the ACLU’s position on the First Amendment as “absolutist” is thus a bit of a red herring.) In at least many of its variations, formalism involves the claim that law is apolitical and neutral because it rests on a rigid, formal model, based on an ideal of axiomatic deduction from rules and unequivocal, “bright line” legal distinctions. The role of law, then, is to locate and uphold clear boundaries–bright lines–between the rights of individuals and between individuals and the state. Legal language and legal expertise are thought valuable precisely because they provide fixed, rigorous meanings unsullied by the political and social winds of the moment. Given a certain set of legal rules and a certain legally defined situation, it is assumed, a properly trained judge or lawyer, within certain boundaries, can use expertise in legal language and reasoning to arrive at, or at least approximate, the correct interpretation, which is generally a matter of pinpointing exactly where the boundaries lie.

Policy oriented decisionmaking, in contrast, tends to be context sensitive, accepting of blurry boundaries, functionalist, and messier. It is also much more common in legal decisionmaking than popular wisdom would suggest. In policy argument, justice is thought to be best served by subtle, well-informed analyses of particular contexts and judicial “balancing” of competing interests and principles; rights and values are treated, not as hard rules distinguished by bright lines, but as general standards that can be differentially implemented according to context. Administrative law, such as that involved in enacting the Federal Communication Commission’s public interest standard for broadcasters, is a classic example of policy oriented decisionmaking. Brown v. Board of Education also includes some exemplary policy argument.

Policy-oriented decisionmaking sometimes is justified in terms of head-on attacks on formalism of the type associated with the critiques of free speech just discussed. Both in practice and in theory, the argument goes, the supposedly “bright line” distinctions upon which formalism is based are rarely if ever as bright as imagined. Stanley Fish’s polemic, “There is no such thing as free speech,” is a recent example of such a critique, but in some ways his position echoes, for example, Felix Cohen’s legal realist argument earlier in the century, in “Transcendental Nonsense and the Functional Approach.”[16]

It is important, however, that outside the academy policy-oriented legal decisionmaking has been justified less by theoretical criticisms of formalism as a whole and more by a sense that, in certain limited and specialized contexts, policy-oriented decisionmaking is simply practical. Formalism seems to be the place our culture celebrates the ideal of the rule of law; policy argument seems to be the place where most of the detailed legal work of ordering society goes on. Policy argument dominates largely in domains unrelated to communication: the law of corporations, environmental law, urban planning, and so forth. The prominent example of policy logic in communication is probably government licensing of broadcast stations according to the public interest standard. Licensing was originally created because communication by radio waves was understood to be characterized by spectrum scarcity and other complicated and contingent technical matters, such as rapidly evolving technologies and strategic needs of the military. Treating broadcasters differently than newspapers was thus thought to be simply called for by context, not because there was thought to be a formal right or principle at stake such as the public’s right to access to communication.

It is sometimes suggested that policy arguments began to replace formalist ones in legal argument somewhere around the turn of the century, and formalism was finally defeated with the end of the Lochner era in 1937. On the level of legal metatheory, there may be truth to this, but it remains the case that in practice both logics remain today. Sometimes the two logics are associated with competing sides in a legal controversy. The argument that television violence ought to be censored because its measurably harmful effects on children outweigh considerations of free speech is a typical policy argument; arguing against such censorship because it would open the door to more serious restrictions of freedom of speech is to lean in a formalist direction. But the two logics are also often mixed in the context of any given argument. Conservatives argue that broadcast licensing violates free speech rights but also is inefficient in the context of new technologies; liberals argue that guarantied citizen access to mass communications would be beneficial for industrial society but also should be treated as a “new First Amendment right.”[17]

So it is perhaps the case that what has been changing over the years is not simply a shift from one kind of argument to the other, but a shift in the “mix” of the two, a shift in how the two kinds of argument have been used in which cases. And here the historical literature suggests that, gradually in this century, the focus of formalist argumentation has shifted from the realm of property and contract to free speech. Up through the late nineteenth century, during what Mensch calls the classical era of jurisprudence, property was the central, formal right; in theory property was celebrated as the essence of legal liberalism, and in practice it was used aggressively in a wide variety of areas. Property rights were invoked to justify bans on speaking in public parks, the picketing of factories during union drives, and turn-of-the-century social legislation. Gradually, this formalist application of property fell out of favor, and met its final demise in the 1937 overturn of Lochner, during the New Deal.[18]

Perhaps it is not entirely coincidental that, as formalist notions of property declined, the formalist understanding of free speech rose. In a familiar history, the First Amendment was gradually elevated to its current legal status, both in case law and in the popular imagination. What has triumphed in this period is not a policy-oriented understanding of free speech (in spite of the best efforts of a long line of scholars from Alexander Meiklejohn to Sunstein, but a rigidly formalist one. So today, property rights advocates who would like to see a return to something like the Lochner era interpretations of property, like Richard Epstein, argue that the rules applied to free speech should also be applied to property. Conversely, from somewhere towards the other end of the political spectrum, Cass Sunstein has called for “A New Deal for Free Speech” wherein the 1930s revisions of property law be extended to communication.[19]

Why has formalism in legal discourse shifted from property and contract to free speech? At this point, I can only speculate. It’s possible to put a cynical economic interpretation on the shift: Formal interpretations of property were abandoned because they became increasingly impractical in the face of the bureaucratic corporate form of business and other late nineteenth and early twentieth century economic developments. Conversely, the soap box speakers became sanctified in law precisely during the historical period that they ceased being effective. In the nineteenth century, union organizers, pacifists, and other “radicals” all made good use of the soap box–of face-to-face speaking in public places–as a communicative tool, and were regularly arrested for doing so. In this century, however, the key to popular communication has become access to radio, television, and other expensive technology-based mass media, which have rendered the soap box increasingly irrelevant as an organizing tool. A formalist interpretation of the First Amendment grants symbolic protection to soap boxes while in practice protecting media corporations much more effectively than dissidents.

Such an account of the shift, however, risks a functionalist tautology (explaining historical events in terms of the needs they serve for the power bloc) and fails to account for the imaginative power of First Amendment formalism. So a more comprehensive explanation might add two observations. First, from a distance, formalism is satisfying to a legal liberal vision of the rule of law, whereas policy argument can appear as arbitrary, obscure, and haughtily technocratic. College sophomores have little trouble understanding why it might be good for the rule of law to protect Nazis marching in Skokie, but it takes a lot of effort to convince them of the grand principles at stake in, say, the regulation requiring TV stations to charge political candidates the same rate for advertising time they charge their most favored advertiser instead of their standard rates. Second, from up close, from the perspective of those involved in everyday, small legal decisions, formalism is frequently impractical, whereas policy-oriented decisions seem reasonable and pragmatic. Few suburban homeowners would take kindly to the suggestion that their neighbors should be allowed to raise pigs or let their lawns go to weed on the grounds that to do so would be to uphold the sanctity of formal property rights.

It seems to be the case, then, that the American polity seems to want a legal system that can satisfy both the desire for legitimacy provided by formalism and the “practical” effectiveness of policy-oriented decisionmaking. Perhaps, therefore, the formalist interpretation of the First Amendment became popular in part because it came to take property’s place as a symbol of legal clarity and formal justice. In both the popular and legal imaginations, the image of the property-holding yeoman farmer was gradually supplanted by the soap box speaker as the central archetype and emblem of legally protected exercise of rights and freedoms in a democratic society.

1. Labor and Management

The polity, however, is not the public. The community of individuals who appreciate the formalist interpretation of free speech may include a wide range of people, such as lawyers, judges, politicians, journalists, professors, and many others in positions to directly or indirectly influence legal and political consciousness. And it includes a wide range of political positions: liberals at the ACLU seem to have little trouble agreeing with conservatives on the Supreme Court that flag burning is protected speech. But it certainly does not include everyone. The majority of the American public has a hard time seeing the justice of protecting flag burning. And this may not mean simply that the public disdains free speech. The ACLU reports that the majority of the complaints it receives come from workers who feel their speech has been restricted by their bosses–a kind of speech that the Supreme Court and the ACLU agree is not protected.

Elizabeth Mensch has remarked that, although many formerly bright lines have been blurred in twentieth century law, the boundary between capital and labor remains as bright and impermeable as ever.[20] The First Amendment, as it is currently interpreted, protects owners and managers more than individual speakers. It prevents government agencies from interfering with the speech of private agencies delineated by boundaries of ownership and management, not by individual human beings.

As a result, employees have basically no free speech rights with regards to their employers, including employees of media businesses. When a journalist is told by an editor to drop a story because it is politically inflammatory, the journalist can find little comfort in First Amendment law. Network program practices departments engage in systematic and thorough censorship of scripts for television series with all the zeal (if not the same principles) of Communist Party apparatchiks. Under law, there’s a sense in which A. J. Liebling’s bon mot–that the only freedom of speech in this country is for those who own one–is literally true.

For all that, Liebling’s quip is an oversimplification. There are many limits on the power of media owners to influence content, such as the resistance of the community of professional journalists to owner manipulation on both ethical and self-interested grounds. Evidence suggests that, among some groups, there probably is a popular ethic of free speech in the U.S. that extends beyond the powers of owners and managers. When conservative newspaper tycoon Rupert Murdoch bought the left-wing Village Voice and tried to dismiss its editor, for example, the threat of a staff walkout forced him to back down, and he left the paper’s editorial content alone thereafter.[21]

2. Social Class and Linguistic Style

Bringing “popular ethics” into the discussion, however, brings us back to the second question suggested by Gates’ examples: why does it seem easier to pass rules prohibiting direct racial epithets than elaborate, formal statements? It is well established that linguistic style is associated with social class. Sociolinguist Basil Bernstein demonstrated that children from middle and professional classes tend to do better in school than working class students in part because they speak more often and more fluently in formal style, or what Bernstein calls “elaborated code.” Working class students, in contrast, tend to be more comfortable, and are probably more fluent in, informal style, or what Bernstein calls “restricted code.”[22]

One style is not better than the other. Rather, each style is an adaptation to specific patterns of life and work. Informal style has the effect of stressing membership within a group; it is useful for interactions among people who are familiar with each other and work with each other on a regular basis, and thus live in “dense” social networks, i.e., high levels of interaction with a limited number of people. It has a high proportion of ellipsis and colloquialisms, not because such language is simpler, but because these take advantage of a higher degree of shared knowledge between speaker and listener. Similarly, it has a higher proportion of personal pronouns (you and they) and tag-questions soliciting agreement of the listener (nice day, isn’t it?), because these express a sense of cooperation and solidarity.[23]

Formal style, in contrast, is for people whose social networks are less dense, who regularly deal with strangers and thus communicate in contexts in which ellipsis and colloquialisms are more likely to generate confusion than solidarity. Similarly, formal style’s high proportion of subordinate clauses, passive verbs, and adjectives (besides connoting high-mindedness through its echo of Latin grammar) are adaptations to the need to explain details comprehensively when speaker and listener do not share as much background knowledge and cannot easily rely on features of the extra-linguistic context. Interestingly, in spite of the frequency of passive verbs, formal style also contains a higher proportion of pronoun “I.” This has the effect of imposing the speaker’s individuality on the utterance, of stressing her or his unique nature as a person, as opposed to expressing membership in a group. Some research suggests that formal style leads people to be judged as more intelligent, more educated, and less friendly and less likable than informal style.

It is not the case that working class people use only informal style and middle class people use only formal style. A garage mechanic will probably shift to formal speech when dealing with a customer irate over a bill, and only the most hopelessly pompous college professors use formal style when speaking with their friends and families. But mastery over the different styles is not evenly distributed. Bernstein’s work suggests that middle and professional class students’ relatively better skills and comfort with formal style functions as a form of what Bourdieu calls “cultural capital,” enhancing their life prospects.[24] Given the relation of style to the character of work, moreover, fluency in formal style (though not accent) is probably associated with a person’s present occupation, regardless of class background.

What does this have to do with free speech? James Carey has argued that the speech/action distinction in free speech law is an expression of distinctly middle class values and sensibilities. Carey tells the story of a middle class man who enters a working class bar and not long thereafter comes flying out the plate glass window; the man then says with astonishment, “but all I did was use words!” Carey’s point is that, to the working class individuals in the bar, words have power. For them, the difference between insulting someone’s mother and punching them in the nose is not as obvious or absolute as it is for the middle class person.

Carolyn Marvin has elaborated on these contrasting sets of values in our culture in terms of what she calls “text” and “body”:

The First Amendment as currently interpreted is envisioned largely in terms of that which middle and professional class people have mastery over, abstract formal expression in speech and writing. This is why it is harder to censure Gates’ first example than the second. Within the community of people who share those values, there is something equalizing about free speech. But it should not be surprising that, for people who do not make a living that way, for workers and other people whose bodies are the source of their value to society, formalist protection of free speech may not make sense, and might even appear as simply another way that people with privileges (such as academics writing about free speech) exercise their power over people who don’t.

The analyses and arguments of this chapter do not offer resolutions to all of the many important debates among non-formalist theorists of freedom of speech, such as those between Gates and Matsuda et al. over campus hate speech codes. But it does do two things. First, it tries to clarify some of the underlying principles and issues at stake today in debates over free speech, particularly the inevitability of context and the problems this poses for traditional formalist understandings of the rule of law. Second, it points in the direction of a rethinking of free speech based in context, and suggests two (among many possible) avenues to pursue: the historical shift of formalism from property to free speech and to matters of language and social class in both legal discourse and in nonlegal situations. Clearly, these examples of context-based analysis are intended only to be suggestive. But what they suggest, it is hoped, is that this kind of inquiry, if expanded into rich and subtle contextual analyses, might indeed help resolve some debates and contribute to a more fully democratic, substantive interpretation of the role of free speech in law and culture.

[1]. Henry Louis Gates, “Let Them Talk,” The New Republic, Sept. 20 & 27, 1993, pp. 37-49: p. 45.

[2]. “Style” is the generally accepted sociolinguistic term for language varieties that can be classified on a continuum for formal to informal. The word “code” is used by Basil Bernstein, Class, Codes And Control, 2d edition (Boston: Routledge & K. Paul, 1974).

[3]. William Labov, “The Logic of Nonstandard English,” in Giglioli (ed.) Language and Social Context (Penguin, 1972), pp. 179-216.

[4]. For a sociolinguistically informed analysis of the role of linguistic style during arrest and interrogation see, Janet E. Ainsworth, “In a Different Register: The Pragmatics of Powerlessness in Police Interrogation,” Yale Law Journal, 103 (November, 1993): 259-322.

[5]. Mark Kelman, A Guide to Critical Legal Studies (Cambridge, Mass.: Harvard University Press, 1987), p. 12 and passim.

[6]. Barbara Johnson, A World of Difference (Baltimore: Johns Hopkins Univ. Press, 1987), p. 6.

[7]. First National Bank of Boston v Bellotti, 435 US 765, 776 (1978)

[8]. 771 F.2d 323 (7th Cir. 1985), aff’d, 475 U.S. 1601 (1986), p. 329; quoted in Stanley Fish, “Fraught With Death: Skepticism, Progressivism, and the First Amendment,” University of Colorado Law Review, 64 Fall 1993: 1061-1086, p. 1065.

[9]. See Ainsworth, “In a Different Register,” note 15: “Austin initially adopts the intuitively appealing assumption that constative utterances, unlike performatives, are true or false. Having set up these opposing categories of performative and constative utterances, Austin ultimately deconstructs this dichotomy” with his analysis of indirect performatives.

[10]. Fish, “Fraught With Death,” p. 1061.

[11]. Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw, Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, Colorado: Westview Press, 1993).

[12]. The classic and extreme version of this notion is the “Sapir-Whorf hypothesis” named after linguists Edward Sapir and Benjamin Whorf. For a post-structuralist variation of it, see Rosalind Coward and John Ellis, Language and Materialism: Developments in Semiology and the Theory of the Subject (London: Routledge and Kegan Paul, 1977).

[13]. Roland Barthes, Image, Music, Text (New York: Hill and Wang, 1977), p. 159.

[14]. Catharine A. MacKinnon, Only Words (Cambridge, Mass: Harvard University Press, 1993).

[15]. Elizabeth Mensch divides legal thought into classical and realist or revisionist forms. Duncan Kennedy talks of the distinction between rules and standards. Roberto Unger speaks of “legal justice” and “substantive justice.” See Elizabeth Mensch, “The History of Mainstream Legal Thought” in David Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon, 1982), pp. 18-39; Duncan Kennedy, “Form and Substance in Private Law Adjudication,” Harvard Law Review, 89 (1976): 1685, pp. 1687-89; see also Roberto M. Unger, Knowledge and Politics (New York: The Free Press, 1975), p. 91.

[16]. Stanley Fish, “There’s No Such Thing As Free Speech And It’s a Good Thing Too,” Boston Review, Feb. 1992, p. 3; Felix Cohen, “Transcendental Nonsense and the Functional Approach,” Columbia Law Review 35 (1935): 809.

[17]. For example, Jerome A. Barron, Freedom Of The Press For Whom? The Right Of Access To Mass Media (Bloomington: Indiana University Press 1973).

[18]. Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990).

[19]. Cass R. Sunstein, “Free Speech Now,” The University of Chicago Law Review, 59 (Winter 1992): 255; Richard A. Epstein, “Property, Speech, and the Politics of Distrust,” The University of Chicago law review 59 (Winter 1992): p. 41.

[20]. Mensch, “The History of Mainstream Legal Thought,” p. 26.

[21]. Alex S. Jones, “At Village Voice, A Clashing Of Visions,” The New York Times, June 28, 1985, Section B; p. 5, Column 1.

[22]. Bernstein, Class, Codes And Control.

[23]. This survey of Bernstein’s work relies heavily on Peter Trudgill, Sociolinguistics: An Introduction to Language and Society (London: Penguin Books, 1983, revised edition), pp. 132-140.

[24]. Pierre Bourdieu, Distinction: A Social Critique of the Judgment of Taste, trans. R. Nice (London: Routledge & Kegan Paul, 1984).

[25]. Carolyn Marvin, “Theorizing the Flagbody: Symbolic Dimensions of the Flag Desecration Debate, or Why the Bill of Rights Does Not Fly in the Ballpark,” Critical Studies in Mass Communication, 8, (June, 1991): pp. 120-121.

[26]. Social class is of course a complex construct, and is used here suggestively, not comprehensively or precisely. Marvin points out that the values of “body” in fact extend to and in many ways are exemplified by military personnel, a group which overlaps with but is not limited to working class individuals.

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Weekly Programs & Special Events. Free Speech TV viewers gain exclusive access to programs like #ABlackShow with Elon James White and Mike Papantonios Ring of Fire, as well as coverage of noteworthy events like Netroots Nation.

Free Speech TV is one of the last standing national independent news channels. As a nonprofit with freedom from corporate control and government pressure, we are uniquely positioned to elevate perspectives that often dont break through the corporate media filter. We believe a more just and democratic world is possible when media empowers people with the information they need to fight for what matters.

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Free Speech TV is owned and operated by Public Communicators, Inc., a 501(c)3 non-profit, tax-exempt organization, founded in 1974. FSTV is supported primarily by its viewers and philanthropic foundations. FSTV television broadcasts are commercial-free. Free Speech TV is based in Denver, CO.

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The Free Speech Zone

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Jul 212015

“We don’t torture… We freedom tickle.” – John Stuart

“If I truly wanted to match Bush’s accomplishments, I would max out my credit card, take out a second mortgage and steal my mother’s Social Security. Instead, I’ll just spend it with my five kids and, in the spirit of the second Bush administration, we’re going to rent ‘Titanic.'” – Terry McAuliffe

“It’s all over but the counting. And we’ll take care of the counting.” – Peter King

“When people think, Democrats win.” -Bill Clinton

“There’s a difference, when Lincoln prayed, he talked to God. When Bush prays, God talks to Bush.” – Mario Cuomo

“What you fight about is notas important as how you settle it.” – Crash N.

“The people who cast the votes decide nothing. The people who count the votes decide everything.” – Joseph Stalin

“First they ignore you, then they laugh at you, then they fight you, then you win.” – “Mahatma” Mohandas Karamchand Gandhi

There is no way to peace. Peace is the way. – A. J. Muste

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The Free Speech Zone

Tolerance is as vital as free speech

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Apr 142015

In her book “The Friends of Voltaire,” Evelyn Beatrice Hall wrote, I do not agree with a word you say, but I will defend to the death your right to say it. Unfortunately, free speech is again under attack. The recent debacle with the French magazine Charlie Hebdo is but the most recent in a line of assaults. In this struggle, the enemy is the culture of political correctness.

Earlier this year, Islamic terrorists carried out an atrocious attack on Charlie Hebdos Parisian headquarters. This attack claimed the lives of 12 people and injured 11 more. The source of the terrorists motives dwelled with the magazines history of publishing cartoons that they claimed were offensive in its portrayals of the prophet Muhammad.

In the wake of the attack, many expressed solidarity for Charlie Hebdo by rallying behind the slogan, Je suis Charlie [I am Charlie]. Inspired by a defiant spirit of freedom, the magazine published what has been dubbed a survivors issue. The cover of this issue unapologetically depicts Muhammad on the cover holding a sign that reads, Je suis Charlie, as a single tear trickles from his eye. And yet, many news companies refused to either print or show the cover, citing a desire not to offend.

Political correctness in American society holds that some topics may not be discussed for fear of being impertinent. There is merit in this doctrine. Harvard psychology professor Steven Pinker has spoken about how this politically correct culture arose as a response to some very big problems. During the early to mid-19th century, many doctrinesparticularly in regard to racewere simply rude, insensitive and unacceptable.

Profanity, vulgarity, tastelessness, racism and discrimination (amongst other things) should not have a place in a civilized and enlightened society. British author Alfred George Gardiner captured this quite well when he wrote, A reasonable consideration for the rights or feelings of others is the foundation of social conduct.

From this, it would follow that speech that is detrimental to order and coexistence should be discouraged. The question is whether the caricature of Muhammad in Charlie Hebdo was indeed harmful to either individual persons or society as a whole. It is very hard to point to an injury in fact resulting from this harmless cartoon. Many people feel that these cartoons are insulting, and they are entitled to feel this way. But one does not have a right not to be insulted.

The English philosopher John Stuart Mill discussed free speech extensively in his famous essay On Liberty. He said that the benefits of free speech are not for the one speaking, but rather for society as a whole. This sounds counterintuitive, but Mill has a strong argument.

The only way that truth may be discovered is through free and open discourse. If a new idea is correct, then society benefits through a replacement or augmentation of previous opinions. And if a new idea is wrong, then society benefits from an exercise in understanding why the received opinion is right. No truth is so firmly situated that it cannot be questioned. Bertrand Russell once said that, In all affairs, love, religion, politics or business, its a healthy idea, now and then, to hang a question mark on things you have long taken for granted.

Truth is not a democracy, as truth exists regardless of whether one believes in it. Yet the way that truth is uncovered is democratic. And through this democratic process, ones perceptions of reality can be made better to reflect reality as it is. Truth does not always win out in the marketplace of ideas, but in the end, it will triumph. As Freud said, The voice of reason is small but persistent.

Political correctness can be seen as a barrier to free speech, as it prevents certain claims from being made. Many of the greatest ideas that the human mind has conceived must have seemed revolutionary and insulting in their time. Copernicus, Darwin, Marx and Einstein all broke with the status quo and insulted a great many people. Yet humanity would be the worse without their contributions.

Tolerance is as vital as free speech

How feminism is lterally sending Sweden in ruin -No more free speech- – Video

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Apr 122015

How feminism is lterally sending Sweden in ruin -No more free speech-

By: Vee

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How feminism is lterally sending Sweden in ruin -No more free speech- – Video

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Ring of Fire on Free Speech TV – 04/05/2015 (FULL EPISODE) – Video

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Apr 122015

Ring of Fire on Free Speech TV – 04/05/2015 (FULL EPISODE)
01:02 – Neocon War Hawks Prep For Iran Conflict. Abby Martin, host of Media Roots Radio, will explain how Republicans like Tom Cotton are aligning themselves with the defense industry…

By: Ring of Fire Radio

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Ring of Fire on Free Speech TV – 04/05/2015 (FULL EPISODE) – Video

Charlie Hebdo aftermath: free speech, radicalisation & anti-Semitism in Lyon – Video

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Apr 122015

Charlie Hebdo aftermath: free speech, radicalisation anti-Semitism in Lyon
'Lyon in particular has never been a good place for Jews, but hasn't been so bad for a long time'. Historian Andrew Hussey reports from France on the rise of anti-semitism and Islamophobia….

By: Channel 4 News

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Charlie Hebdo aftermath: free speech, radicalisation & anti-Semitism in Lyon – Video

Reconsidering Charlie Hebdo – Free Speech, Offense, and Violence in Context – Video

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Apr 122015

Reconsidering Charlie Hebdo – Free Speech, Offense, and Violence in Context
This is the second of a new series of community-focused lectures, discussions, and dialogues, the “Reconsidering. . . .” series. This particular discussion focused on the events, conflicts,…

By: Gregory B. Sadler

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Reconsidering Charlie Hebdo – Free Speech, Offense, and Violence in Context – Video

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