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Annotation 6 – First Amendment – FindLaw

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Oct 282015


Adoption and the Common Law Background

Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: ”The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”1 The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it read: ”The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.”2 In this form it went to the Senate, which rewrote it to read: ”That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.”3 Subsequently, the religion clauses and these clauses were combined by the Senate.4 The final language was agreed upon in conference.

Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate.5 In the course of debate, Madison warned against the dangers which would arise ”from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.”6 That the ”simple, acknowledged principles” embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language. Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. ”The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.”7

Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment,8 it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act9 and the use by the Adams Administration of the Act to prosecute its political opponents,10 something of a libertarian theory of freedom of speech and press,11 which, however much the Jeffersonians may have departed from it upon assuming power,12 was to blossom into the theory undergirding Supreme Court First Amendment jurisprudence in modern times. Full acceptance of the theory that the Amendment operates not only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and indeed in all fields of expression, dates from a quite recent period, although the Court’s movement toward that position began in its consideration of limitations on speech and press in the period following World War I.13 Thus, in 1907, Justice Holmes could observe that even if the Fourteenth Amendment embodied prohibitions similar to the First Amendment, ”still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is ‘to prevent all such previous restraints upon publications as had been practiced by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare . . . . The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all.”14 But as Justice Holmes also observed, ”[t]here is no constitutional right to have all general propositions of law once adopted remain unchanged.”15

But in Schenck v. United States,16 the first of the post-World War I cases to reach the Court, Justice Holmes, in the opinion of the Court, while upholding convictions for violating the Espionage Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on subsequent punishment as well as prior restraint. ”It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints although to prevent them may have been the main purpose . . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Justice Holmes along with Justice Brandeis soon went into dissent in their views that the majority of the Court was misapplying the legal standards thus expressed to uphold suppression of speech which offered no threat of danger to organized institutions.17 But it was with the Court’s assumption that the Fourteenth Amendment restrained the power of the States to suppress speech and press that the doctrines developed.18 At first, Holmes and Brandeis remained in dissent, but in Fiske v. Kansas,19 the Court sustained a First Amendment type of claim in a state case, and in Stromberg v. California,20 a state law was voided on grounds of its interference with free speech.21 State common law was also voided, the Court in an opinion by Justice Black asserting that the First Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English common law.22 Development over the years since has been uneven, but by 1964 the Court could say with unanimity: ”we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”23 And in 1969, it was said that the cases ”have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”24 This development and its myriad applications are elaborated in the following sections. The First Amendment by its terms applies only to laws enacted by Congress, and not to the actions of private persons. Supp.15 This leads to a ”state action” (or ”governmental action”) limitation similar to that applicable to the Fourteenth Amendment. Supp.16 The limitation has seldom been litigated in the First Amendment context, but there is no obvious reason why analysis should differ markedly from Fourteenth Amendment state action analysis. Both contexts require ”cautious analysis of the quality and degree of Government relationship to the particular acts in question.” Supp.17 In holding that the National Railroad Passenger Corporation (Amtrak) is a governmental entity for purposes of the First Amendment, the Court declared that ”[t]he Constitution constrains governmental action ‘by whatever instruments or in whatever modes that action may be taken.’. . . [a]nd under whatever congressional label.”Supp.18 The relationship of the government to broadcast licensees affords other opportunities to explore the breadth of ”governmental action.”Supp.19


[Footnote 1] 1 Annals of Congress 434 (1789). Madison had also proposed language limiting the power of the States in a number of respects, including a guarantee of freedom of the press, Id. at 435. Although passed by the House, the amendment was defeated by the Senate, supra, p.957.

[Footnote 2] Id. at 731 (August 15, 1789).

[Footnote 3] The Bill of Rights: A Documentary History 1148-49 (B. Schwartz ed. 1971).

[Footnote 4] Id. at 1153.

[Footnote 5] The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals of Congress 731-49 (August 15, 1789). There are no records of debates in the States on ratification.

[Footnote 6] Id. at 738.

[Footnote 7] 4 W. Blackstone’s Commentaries on the Laws of England 151-52 (T. Cooley 2d rev. ed. 1872). See 3 J. Story, Commentaries on the Constitution of the United States 1874-86 (Boston: 1833). The most comprehensive effort to assess theory and practice in the period prior to and immediately following adoption of the Amendment is L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960), which generally concluded that the Blackstonian view was the prevailing one at the time and probably the understanding of those who drafted, voted for, and ratified the Amendment.

[Footnote 8] It would appear that Madison advanced libertarian views earlier than his Jeffersonian compatriots, as witness his leadership of a move to refuse officially to concur in Washington’s condemnation of ”[c]ertain self-created societies,” by which the President meant political clubs supporting the French Revolution, and his success in deflecting the Federalist intention to censure such societies. I. Brant, James Madison–Father of the Constitution 1787-1800, 416-20 (1950). ”If we advert to the nature of republican government,” Madison told the House, ”we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 Annals of Congress 934 (1794). On the other hand, the early Madison, while a member of his county’s committee on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers of James Madison 147, 161-62, 190-92 (W. Hutchinson & W. Rachal eds. 1962). There seems little doubt that Jefferson held to the Blackstonian view. Writing to Madison in 1788, he said: ”A declaration that the federal government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 Papers of Thomas Jefferson 442 (J. Boyd ed. 1955). Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech-free press clause might read something like: ”The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 Papers, supra, at 367.

[Footnote 9] The Act, Ch. 74, 1 Stat. 596 (1798), punished anyone who would ”write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute.” See J. Smith, Freedom’s Fetters–The Alien and Sedition Laws and American Civil Liberties (1956).

[Footnote 10] Id. at 159 et seq.

[Footnote 11] L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History, ch. 6 (Cambridge, 1960); New York Times Co. v. Sullivan, 376 U.S. 254, 273-76 (1964). But compare L. Levy, Emergence of a Free Press (1985), a revised and enlarged edition of Legacy of Suppression, in which Professor Levy modifies his earlier views, arguing that while the intention of the Framers to outlaw the crime of seditious libel, in pursuit of a free speech principle, cannot be established and may not have been the goal, there was a tradition of robust and rowdy expression during the period of the framing that contradicts his prior view that a modern theory of free expression did not begin to emerge until the debate over the Alien and Sedition Acts.

[Footnote 12] L. Levy, Jefferson and Civil Liberties–The Darker Side (Cambridge, 1963). Thus President Jefferson wrote to Governor McKean of Pennsylvania in 1803: ”The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.” 9 Works of Thomas Jefferson 449 (P. Ford, ed. 1905).

[Footnote 13] New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provides the principal doctrinal justification for the development, although the results had long since been fully applied by the Court. In Sullivan, Justice Brennan discerned in the controversies over the Sedition Act a crystallization of ”a national awareness of the central meaning of the First Amendment,” id. at 273, which is that the ”right of free public discussion of the stewardship of public officials . . . [is] a fundamental principle of the American form of government.” Id. at 275. This ”central meaning” proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government. ”Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” Id. at 276. Madison’s Virginia Resolutions of 1798 and his Report in support of them brought together and expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point of view that the First Amendment superseded the common law on speech and press, that a free, popular government cannot be libeled, and that the First Amendment absolutely protects speech and press. 6 Writings of James Madison, 341-406 (G. Hunt. ed. 1908).

[Footnote 14] Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis original). Justice Frankfurter had similar views in 1951: ”The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. . . . ‘The law is perfectly well settled,’ this Court said over fifty years ago, ‘that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.’ That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years.” Dennis v. United States, 341 U.S. 494, 521-522, 524 (1951) (concurring opinion). The internal quotation is from Robertson v. Baldwin, 165 U.S. 275, 281 (1897).

[Footnote 15] Patterson v. Colorado, 205 U.S. 454, 461 (1907).

[Footnote 16] 249 U.S. 47, 51-52 (1919) (citations omitted).

[Footnote 17] Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466 (1920); Pierce v. United States, 252 U.S. 239 (1920); United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921). A state statute similar to the federal one was upheld in Gilbert v. Minnesota, 254 U.S. 325 (1920).

[Footnote 18] Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. California, 274 U.S. 357 (1927). The Brandeis and Holmes dissents in both cases were important formulations of speech and press principles.

[Footnote 19] 274 U.S. 380 (1927).

[Footnote 20] 283 U.S. 359 (1931). By contrast, it was not until 1965 that a federal statute was held unconstitutional under the First Amendment. Lamont v. Postmaster General, 381 U.S. 301 (1965). See also United States v. Robel, 389 U.S. 258 (1967).

[Footnote 21] And see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937); Lovell v. Griffin, 303 U.S. 444 (1938).

[Footnote 22] Bridges v. California, 314 U.S. 252, 263-68 (1941) (overturning contempt convictions of newspaper editor and others for publishing commentary on pending cases).

[Footnote 23] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[Footnote 24] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

[Footnote 15 (1996 Supplement)] Through interpretation of the Fourteenth Amendment, the prohibition extends to the States as well. See discussion on incorporation, main text, pp. 957-64.

[Footnote 16 (1996 Supplement)] See discussion on state action, main text, pp.1786-1802.

[Footnote 17 (1996 Supplement)] CBS v. Democratic Nat’l Comm., 412 U.S. 94, 115 (1973) (opinion of Chief Justice Burger).

[Footnote 18 (1996 Supplement)] Lebron v. National R.R. Passenger Corp., 115 S. Ct. 961, 971 (1995) (quoting Ex parte Virginia, 100 U.S. 339, 346-47 (1880)). The Court refused to be bound by the statement in Amtrak’s authorizing statute that the corporation is ”not . . . an agency or establishment of the United States Government.” This assertion can be effective ”only for purposes of matters that are within Congress’ control,” the Court explained. ”It is not for Congress to make the final determination of Amtrak’s status as a governmental entity for purposes of determining the constitutional rights of citizens affected by its actions.” 115 S. Ct. at 971.

[Footnote 19 (1996 Supplement)] In CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973), the Court held that a broadcast licensee could refuse to carry a paid editorial advertisement. Chief Justice Burger, joined only by Justices Stewart and Rehnquist in that portion of his opinion, reasoned that a licensee’s refusal to accept such an ad did not constitute ”governmental action” for purposes of the First Amendment. ”The First Amendment does not reach acts of private parties in every instance where the Congress or the [Federal Communications] Commission has merely permitted or failed to prohibit such acts.” Id. at 119.

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Annotation 6 – First Amendment – FindLaw

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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Free Speech – Shmoop

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Free speech – OpenLearn – Open University

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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 …

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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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First Amendment of our countrys Bill of Rights

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Sep 102015

Freedom of Speech and of the Press: The First Amendment allows citizens to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas even if the ideas are unpopular.

Freedom of speech encompasses not only the spoken and written word, but also all kinds of expression (including non-verbal communications, such as sit-ins, art, photographs, films and advertisements). Under its provisions, the media including television, radio and the Internet is free to distribute a wide range of news, facts, opinions and pictures. The amendment protects not only the speaker, but also the person who receives the information. The right to read, hear, see and obtain different points of view is a First Amendment right as well.

But the right to free speech is not absolute. The U.S. Supreme Court has ruled that the government sometimes may be allowed to limit speech. For example, the government may limit or ban libel (the communication of false statements about a person that may injure his or her reputation), obscenity, fighting words, and words that present a clear and present danger of inciting violence. The government also may regulate speech by limiting the time, place or manner in which it is made. For example the government may require activists to obtain a permit before holding a large protest rally on a public street. Freedom of Assembly and Right to Petition the Government: The First Amendment also protects the freedom of assembly, which can mean physically gathering with a group of people to picket or protest; or associating with one another in groups for economic, political or religious purposes.

The First Amendment also protects the right not to associate, which means that the government cannot force people to join a group they do not wish to join. A related right is the right to petition the government, including everything from signing a petition to filing a lawsuit.

Freedom of Religion: The First Amendment’s free exercise clause allows a person to hold whatever religious beliefs he or she wants, and to exercise that belief by attending religious services, praying in public or in private, proselytizing or wearing religious clothing, such as yarmulkes or headscarves. Also included in the free exercise clause is the right not to believe in any religion, and the right not to participate in religious activities.

Second, the establishment clause prevents the government from creating a church, endorsing religion in general, or favoring one set of religious beliefs over another. As the U.S. Supreme Court decided in 1947 in Everson v. Board of Education of Ewing Township, the establishment clause was intended to erect “a wall of separation between church and state,” although the degree to which government should accommodate religion in public life has been debated in numerous Supreme Court decisions since then.

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First Amendment of our countrys Bill of Rights

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

FGCU tries to STOP me w/ Bogus Policy – Video

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Apr 112015

FGCU tries to STOP me w/ Bogus Policy
I was preaching at FGCU on good Friday when I was challenged by a student on FGCU's free speech policy. The staff and police that was on duty this day tried to say that their policy says that…

By: TeamJesusPreachers

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FGCU tries to STOP me w/ Bogus Policy – Video

Supreme Court in India upholds free speech on internet, scraps Section 66A of IT Act – Video

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Apr 112015

Supreme Court in India upholds free speech on internet, scraps Section 66A of IT Act
Supreme Court in India on March 24, 2015 upholds free speech on internet, scraps 'unconstitutional' Section 66A of IT Act. The controversial cyber law that gave police sweeping powers to arrest…

By: Ravi Pradhan

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Supreme Court in India upholds free speech on internet, scraps Section 66A of IT Act – Video

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Free speech or hate speech? Lisitsa and the TSO

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Apr 112015

On April 8 and 9, the pianist Valentina Lisitsa was to perform the Rachmaninoff 2nd concerto with the Toronto Symphony Orchestra. This week, the orchestra paid out her contract, citing deeply offensive comments she was alleged to have made on her Twitter feed about the ongoing conflict in her native Ukraine.

Lisitsa, 41, who came to prominence through her YouTube videos and who has a huge social-media following, fired back promptly and at some length in a Facebook post (despite, she averred, pressure from the symphony not to go public about the incident). She makes no bones about having taken sides in the ongoing conflict in Ukraine; she is on the side of the Russian-speaking Ukrainians who represent the majority in the Crimea, and vehemently opposed to the current Ukrainian leadership. Her posts on Twitter repeatedly call Ukrainians Nazis and depicts them as a population of idiots and the insane; one purports to illustrate the leaderships faces with a photograph of pigs testicles. The feed also has some racism and overtones of anti-Semitism thrown in for good measure. But, Lisitsa says, she was exercising her right to free speech. The orchestras position is that she went too far.

This is not about political persuasion, says Jeff Melanson, the Toronto Symphonys president and CEO, in a telephone interview on Wednesday morning. He adds, Thats no issue for us. [But] artists using their Twitter or public profile to regularly speak in an intolerant or offensive way about other human beings that, you have to think about. The orchestra invoked a clause in her contract that enabled them to dismiss her.

Theres food here for legitimate debate. But legitimate debate is not necessarily whats fostered in the kangaroo court of Twitter and Facebook. The Toronto Symphony has been besieged by an outcry about free speech, and ultimately had to cancel the concerto altogether (Stewart Goodyear, who was to have replaced Lisitsa, says her supporters bullied him out). Some of the orchestras critics include people who have their own political axes to grind; some appear to believe that Lisitsa is supporting the Ukrainian rather than the Russian side in the conflict; and some include members of prominent newspapers editorial boards: the Toronto Star, for one, has weighed in with a strong indictment.

Few, if any, have mentioned an obvious recent parallel, when Opera Australia dismissed the Georgian soprano Tamar Iveri in 2014 after a lengthy Facebook post was found in which she supported attacks on a gay-pride parade in her native Georgia and referred to gay people as fecal masses. Free speech? Sure, but Iveri found precious few defenders and certainly there were no editorials defending her right to speak out.

The case against Lisitsa is arguably not quite as clear-cut. The Toronto Symphony has amassed a seven-page collection of some of her ripest Tweets, including one that mocks Ukranians in traditional folk costume by comparing them to Africans in tribal dress. There are evocations of Nazi concentration camps and the Ku Klux Klan. Theres no question that its pretty distasteful stuff; digging around in it left this reader, at least, feeling soiled.

But where do you draw the line? You could argue that Lisitsa is writing, clumsily, in the tradition of offensive satire propagated by the magazine Charlie Hebdo, whose right to free speech many in the West passionately defended in the wake of the brutal attack on their offices earlier this year, which left 12 people dead. One of Lisitsas tweets that some found objectionable This is what happens when media gets their news out of a..uh..sphincter, she wrote about a New York Times piece on Russian leaders abandoning Ukrainian separatists included a Charlie Hebdo cartoon, depicting news outlets drinking out of each others rear ends. (In a Twitter exchange, Lisitsa confirmed that she had swapped out the names of the media outlets to make the cartoon relevant to the Ukrainian situation.)

Conversely, you could argue that a musician who uses her podium for this kind of material is not someone you want associating with your orchestra. You could also argue that Lisitsa is propagating hate speech, and that hate speech is illegal in Canada and many other countries.

Theres no doubt its a gray zone, said Melanson in a telephone interview on Wednesday morning.

Whether or not you agree with the symphonys position, they have gotten the worst of it in the social-media war in part through not being more explicit right from the start about the nature of the Tweets they were protesting. In 2014, Opera Australia made it perfectly clear why they were letting Iveri go; by contrast, Melansons initial statement about ongoing accusations of deeply offensive language by Ukrainian media outlets made it sound as if the symphony were responding to someone elses claims which has fueled a lot of speculation about who it was that pressured them to act. Melanson, however, avers that no political pressure, no pressure from donors, no messages from foreign or local governments was responsible for the orchestras decision.

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Free speech or hate speech? Lisitsa and the TSO

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Religious Freedom Debates Make Evangelicals More Tolerant, Study Finds

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Apr 112015

April 10, 2015|4:46 pm

Protesters against U.S. President Barack Obama’s health care overhaul gather outside the Supreme Court in Washington, June 28, 2012. The Supreme Court is set to deliver on Thursday its ruling on President Barack Obama’s 2010 healthcare overhaul, his signature domestic policy achievement, in a historic case that could hand him a huge triumph or a stinging rebuke just over four months before he seeks re-election.

When Evangelicals are exposed to arguments defending their own free speech and religious freedom, they become more accepting of extending similar rights to their political foes, a new study found.

“Rights, Reflection, and Reciprocity: How Rights Talk Affects the Political Process,” by political scientists Paul Djupe, Denison University; Andrew Lewis, University of Cincinnati; and Ted Jelen, University of Nevada-Las Vegas, will be presented this month at the Midwest Political Science Association’s annual meeting in Chicago.

The researchers sought to understand if the recent culture war battles between sexual freedom and religious freedom (see, for example, here, hereand here) would lead to greater or lesser division and intolerance among the combatants. (This paper focuses on the conservative side but they suggest they will also be studying the liberal side.)

In an article for the political science blog The Monkey Cage, the authors explain that their research “has identified a fascinating silver lining [to those culture war battles]. We find that evangelical Christians who are exposed to claims about religious rights actually become more willing to extend First Amendment rights to their ideological opponents. That is, the campaign to reinforce religious liberty might actually increase political tolerance in the long run.”

(Photo: The Christian Post/Sonny Hong)

Paul Djupe, associate professor of political science at Denison University, presenting “The Choice That Matters: Politics in the Role of Leaving Congregations,” at the American Political Science Association Annual Meeting, Washington, D.C., Aug. 30, 2014.

The study used a survey experiment. A sample of 2,141 respondents, including 274 Evangelicals and 1,867 non-Evangelicals, were divided into groups exposed to different messages from hypothetical political candidates and clergy. These messages were about pro-life protestors, the Obama administration’s birth control mandate, teaching creationism, and a photographer declining to work at a same-sex wedding. Each group had messages based upon either morality, free speech, religious liberty, and a less specific message that was used as the control group. The study also used a number of control measures that are common in studies of tolerance education, ideology, political interest, gender, age, and democratic norms.

The respondents were also asked to identify which groups they either “like the least” or “disagree with the most” from among these options: immigrants, Tea Party members, Muslims, homosexuals, Christian fundamentalists, or atheists. For the full sample, the non-Evangelicals chose Christian fundamentalists as their least liked group, followed by the Tea Party. Evangelicals chose atheists as their least liked group, followed by Muslims and the Tea Party.

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Expulsion of University of Oklahoma students sparks free speech debate – Video

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Apr 082015

Expulsion of University of Oklahoma students sparks free speech debate
Legal experts say the University of Oklahoma had no right to expel the fraternity members who used racial slurs and chants on a video that went viral. Robert Corn-Revere, a First Amendment…

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IGN Censors free speech in it’s comments section – Video

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Apr 062015

IGN Censors free speech in it's comments section
This is insane. IGN no longer censors cursing, but feels the need to censor free speech when it's something they don't agree with. Someone needs to remind them of something called free speech.

By: The Goof

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Police try to limit Abolitionist’s free speech – Video

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Apr 032015

Police try to limit Abolitionist's free speech
As police tried for about 30 minutes to remove me and my signs off of public property (that is freely open to the public), I respectively stood my ground. It paid off in the end because I…

By: AbolitionistSociety ofTampa

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Police try to limit Abolitionist’s free speech – Video

Nigel O’Mara – It’s Time For Justice For The Victims Of Child Abuse – Video

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Apr 032015

Nigel O'Mara – It's Time For Justice For The Victims Of Child Abuse
Please Support The Show Tune in at 8pm GMT Hayden Hewitt is the co-founder and spokesperson for one of the most popular websites in the world. He'll be chatting about free speech and…

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Cavna: Crowdfund of the week: Free-speech cartoonists vs. legal and mortal threats

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Apr 032015

TOMORROW, the Malaysian cartoonist Zunar is expected to be charged with sedition over an illustrated tweet critical of his nations judiciary. If found guilty, he could face several years behind bars.

Last week, Turkish cartoonists Bahadir Baruter and Ozer Aydogan of the publication Penguen were sentenced to 14 months in prison for satirically insulting the nations president, before their sentences were commuted to fines.

And last month, while visiting Washington for a free-speech talk at Freedom House, Ecuadorian cartoonist Bonil told me that he cant spend his creative energy thinking about death threats, as well as a preliminary criminal investigation over his artwork, when he returns to his country. He faces accusations of socioeconomic discrimination, and he is fighting to stay free in body as well as in speech.

Elsewhere around the world, some political cartoonists also face arrests and threats at best, and disappearance and death in the darkest scenarios, over their commitment to exercise the power of the pen.

As Zunar says in a statement this week about the true power of the politically charged cartoon: The truth is seditious.

Coming to the aid of these artists the globe over, though, is the Cartoonists Rights Network International, which for one more week is running an Indiegogo campaign to raise funds for its numerous fights for cartoonist rights and protection.

The Virginia-based organization is buoyed by many of the industrys American brethren, including such Pulitzer-winning cartoonists as Joel Pett of the Lexington Herald-Leader and Matt Wuerker of Politico. And at the center of the human-rights group is executive director Robert Russell, a former Peace Corps worker who founded CRNI a quarter-century ago.

Comic Riffs caught up with Russell to talk about the mission and movements of CRNI, as well as how to best aid, protect and rescue cartoonists who risk life and liberty in the name of free speech, and in the visual pursuit of truth.

MICHAEL CAVNA: CRNI has been on the front lines of helping support cartoonists under editorial and personal attack for a quarter-century now. How much are threats against, and persecution of, cartoonists always a constant and roughly how many cartoonists around the globe would you say need your help at any given time?

ROBERT RUSSELL: At any given time, anywhere from three to five cartoonists are very high on our radar. For some of these cartoonists, the problems are just temporary and usually settled positively and without too much fanfare in the civil courts. Other of our cartoonist clients have been in and out of trouble with their antagonists for years. We also find that a consistent group of usual suspects keeps making the rounds on our radar screen. Recidivism amongst some particularly hard-hitting cartoonists can be very high.

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Cavna: Crowdfund of the week: Free-speech cartoonists vs. legal and mortal threats

Volokh Conspiracy: Explaining the libertarian position on antidiscrimination laws

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Apr 032015

With the recent and continuing hulabaloo over conflicts between antidiscrimination laws and freedom of religion, the charge inevitably arises that anyone who is opposed to, or even skeptical of, antidiscrimination laws that apply to private partieswhich means most people who identify themselves as libertariansis effectively not pro-liberty, but pro-discrimination. I therefore thought it was a good time to reprint my rebuttal of that argument from Cato Unbound, published in 2010, below.

The most serious charge has been that libertarian skepticism of antidiscrimination laws that apply to private entities reflects, at best, insensitivity to race discrimination. One blogger, reflecting a significant swath of progressive sentiment, argued that no matter how committed to racial egalitarianism any individual libertarian claims to be, Libertarianism is a racist philosophy. Libertarians are racists.

This is a rather odd criticism. For both philosophical and utilitarian reasons, libertarians are presumptively strongly opposed to any government regulation of the private sector. It naturally follows that libertarians presumptively oppose restrictions on private sector discrimination. Its hardly an indication of racial animus, or even insensitivity, for libertarians to enunciate theexact same positionon antidiscrimination laws that they take in all other contexts.

The progressive libel of libertarians as racial troglodytes for their consistent defense of private-sector autonomy is ironic, given that similar illogic has so frequently been used against modern liberals. When liberals defended Communists free speech and employment rights in the 1950s, their critics accused them of being Communist sympathizers, if not outright Communists. More recently, progressives have been accused of being American-hating jihadist sympathizers when they stood up for the rights of terrorism suspects. Critics have even charged civil libertarians with abetting racism for opposing hate speech laws.

The hate speech example is particularly telling. Some progressives argue that if libertarians were more sensitive to the concerns of minorities, they would sacrifice their anti-statist principles to the goddess of antidiscrimination. If so, progressives should similarly sacrifice their support for freedom of speech.

Confronted with the hate speech analogy, progressives will typically reply that supporting freedom of speech is completely different from supporting the right to engage in discriminatory action. After all, speech is just speechsticks and stones, and whatnotwhile discriminatory actions cause real distress to the victims. And besides, they argue, the marketplace of ideas can be trusted to ensure that egalitarian views will emerge victorious.

This argument does not stand up to close scrutiny. Hate speech can directly harm members of minority by causing psychological distress or inciting violence. And indirect harms from hate speech can be catastrophic if advocates of racist views are able to win control of the government. While minorities can generally find productive economic niches in even highly prejudiced but market-oriented societies, there is no safe haven for minorities if racist ideas dominate politics and lead to harsh discriminatory legislation.

Also, a free economic market protects minorities from discrimination to some degree because businesspeople have an economic incentive to hire the most productive workers and to obtain the most customers. By contrast, individual voters and political activists have no corresponding incentive to overlook or overcome their personal prejudices. Concern for the financial bottom line mitigates the temptation of economic entrepreneurs to discriminate; concern for the electoral bottom line, meanwhile, often leads politicians to stir up resentment against minorities.

As suggested above, supporters of antidiscrimination laws typically focus on laws banning racial discrimination. They do so because opposition to race discrimination has great historical and emotional resonance in a nation that had institutionalized racial oppression, including chattel slavery, for hundreds of years. However, federal antidiscrimination laws also apply to discrimination based on religion, sex, age, disability (including ones status as a recovering drug or alcohol addict), pregnancy, marital status, veteran status, and even military recruiters. State and local antidiscrimination laws cover everything from sexual orientation to political ideology to weight to appearance to membership in a motorcycle gang.

The proliferation of antidiscrimination laws explains why libertarians are loath to concede the principle that the government may ban private sector discrimination. There is no natural limit to the scope of antidiscrimination laws, because the concept of antidiscrimination is almost infinitely malleable. Almost any economic behavior, and much other behavior, can be defined as discrimination. Is a school admitting students based on SAT scores? That is discrimination against individuals (or groups) who dont do well on standardized tests! Is a store charging more for an item than some people can afford? That is discrimination against the poor! Is an employer hiring only the best qualified candidates? That is discrimination against everyone else!

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Volokh Conspiracy: Explaining the libertarian position on antidiscrimination laws

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Do liberals believe in free speech? The Trevor Noah controversy – Video

 Free Speech  Comments Off on Do liberals believe in free speech? The Trevor Noah controversy – Video
Apr 022015

Do liberals believe in free speech? The Trevor Noah controversy
On Black, White and Politically Incorrect, Susan Patton and I discuss the recent controversy over Trevor Noah, the man slated to take over for Jon Stewart on The Daily Show. We also ask whether…

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Volokh Conspiracy: Can a city suppress speech protesting eminent domain?

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Apr 022015

The Institute for Justice had petitioned the Supreme Court to take an interesting case out of the Fourth Circuit involving the suppression of free speech protesting a taking of private property. Here is the press release:

Case Appealed to U.S. Supreme Court Shows How If We Lose One Right, We Can Lose Them All

First the Government Tried to Illegally Take Their Land, Then the Government Silenced Them So They Couldnt Hang a Protest Banner on Their Own Property

Key Facts This case started with government abusing its power of eminent domain. 10 years ago, the U.S. Supreme Court issued its infamousKeloruling eviscerating constitutional protections against eminent domain abuse. Company hung a protest banner; the government demanded they cover it up.

Arlington, Va.Ten years ago, in its infamousKelodecision, the U.S. Supreme Court adopted a radically broad interpretation of the governments power to take private property through eminent domain. But the Court recognized that the necessity and wisdom of using eminent domain are matters of legitimate public debate. Central Radio Company attempted to participate in that debate when the government tried to take its property through eminent domain. The city of Norfolk, Va., however, prevented it from doing so, barring the company from hanging a protest banner on the land in dispute. Now Central Radio is taking its fight to the U.S. Supreme Court,asking the Court to review a major case at the intersection of free speech and property rights.

This case demonstrates just how intertwined our constitutional rights arehow protecting free speech is essential to protecting our other fundamental liberties, including property rights, noted Michael Bindas, a senior attorney with the Institute for Justice, which represents Central Radio.

Central Radio has been a Norfolk institution for more than 80 years, but in 2010 the Norfolk Redevelopment and Housing Authority moved to take its land and building through eminent domain and turn it over to nearby Old Dominion University (a land grab Central Radio would ultimately defeat). In response to the threat, Central Radio hunga 375-square foot protest banneron the very building the government was trying to take. It read: 50 years on this street/78 years in Norfolk/100 workers/Threatened by eminent domain!

Acting on a complaint made by an official at Old Dominionthe very entity that stood to acquire Central Radios propertythe city quickly cited Central Radio and ordered the banner be taken down. Yet, under Norfolks sign code, the banner would have been allowed if it had fallen into one of the various favored categories of signs that Norfolk exempts from regulation. For example, a banner of the same size, in the same location, would have been perfectly permissible if, rather than protesting city policy, it depicted the city flag or crest.

In the fall of 2013, the Virginia Supreme Court held that the citys attempted taking of Central Radios property was illegal, vindicating the companys property rights. Unfortunately, however, the federal courts refused to vindicate Central Radios free speech rights. When the company challenged the citys sign code under the First Amendment, the U.S. District Court for the Eastern District of Virginia upheld it. And in January 2015, a divided 2-1decision of the U.S. 4thCircuit Court of Appeals affirmed the district court.

According to the 4thCircuit majority opinion, it was irrelevant that the sign code drew distinctions between different types of banners based on their content so long as those distinctions were what the court deemed reasonable. Moreover, restricting Central Radios banner was warranted, according to the majority, because some passersby had reacted emphatically to the sign by waving, honking and shouting in support when they saw it. The majority claimed that these expressions of support were evidence that motorists [we]re distracted by [the] sign while driving.

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Volokh Conspiracy: Can a city suppress speech protesting eminent domain?

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