Just Because You Have the Freedom to Speak Doesn’t Mean You Should Use It

Everything you know about the First Amendment could actually be wrong

Photo credit: Author

In “The Trumpeter Taken Prisoner,” one of the many fables attributed to Aesop, a military trumpeter is captured by his enemies during a battle and sentenced to death.

“I do not fight,” the trumpeter protests, begging for his life. “And indeed, I carry no weapon; I only blow this trumpet, and surely that cannot harm you. Why should you kill me?”

“You may not fight yourself,” the enemy soldiers reply, sharpening their weapons, “but you encourage and guide other men to the fight.”

Words may be deeds, the fable concludes.

Speech is not always harmless.

Many people know this intuitively, and yet here in America, where we are often told that we have “freedom of speech” thanks to the First Amendment of the Constitution, we regularly find people complaining that their Constitutional rights have been violated because of something they said.

This is exactly what happened on November 15, 2016, when Rutgers University adjunct lecturer Kevin Allred was confronted by officers from the New York City Police Department (NYPD) and taken in an ambulance to Bellevue Hospital’s psychiatric ward.

In Allred’s own words, this happened because “Rutgers Police told [the NYPD] I’m a threat based on political statements I’ve made.”

For a brief moment, the progressive left was outraged by the news, flashing urgent messages on social media channels and spreading the frantic message that some new level of authoritarianism in America had arrived under President-elect Donald Trump.

And then it emerged what Allred had actually said.

“Will the Second Amendment be as cool,” Allred had posted on the social-media website Twitter, “when I buy a gun and start shooting at random white people or no…?”

Allred’s key use of when in his message, suggesting probability rather than possibility, tipped the balance of his statement from the realm of “political statement” into the realm of “potential threat.”

Although some people did not agree with the coerced trip to Bellevue for a psychiatric evaluation, most people agreed that the police would have been criticized for not responding to a very public threat like this. They were just doing their job; it was Allred who was out of line, stirring up a controversy in a desperate attempt to find allies for a statement that by most measures crossed a line from political discourse to the threat of political violence.

Folks Need to Simmer Down

Using the First Amendment as a shield to defend outrageous statements and ideas has become a common talking point in the arena of public discourse.

We live in an environment where both celebrities and media-savvy citizens become overnight sensations after they are punished or otherwise publicly shamed for saying something outrageous or inflammatory.

But to declare, as many often do to defend their offensive statements, that their “freedom of speech” has been violated represents a gross simplification — not just of the role of an individual in a civil society, but of their legal rights as defined by courts.

First, as it has been often pointed out, freedom of speech does not mean that people are free from repercussions for that speech.

Anyone is free to insult their boss or supervisor at work, for example — but they have to be prepared to deal with the consequence of being fired as a result. Nor does the First Amendment protect people from being shamed or socially punished by other members of civil society when their speech violates norms of behavior and ethics.

Secondly, and perhaps more importantly for social justice warriors like Kevin Allred, there are legal repercussions for some kinds of speech.

Speech that poses an imminent danger or that is intended to directly incite violence is not protected under the First Amendment and can legally result in arrest.

Slander is also not a protected form of speech. Although it is difficult to prove slander in a court of law, many people stop short of making outrageous claims about other people in public because they are on some level aware that they could be sued for it.

Another area where speech is not legally protected is the murky area of state obscenity law, where states can legally censor speech that does not comport with the morals of those in power.

Here, the Supreme Court provided a three-part test for states to use in determining whether something could be considered “obscene” and therefore subject to limitations under state law. This three-part test makes it difficult for a state to successfully win an obscenity case in court, but this has not stopped the more conservative American states from attempting to enforcing obscenity laws to curtail speech.

I don’t pretend to be a legal expert, and I’m certainly missing some nuance here.

Still, I feel comfortable pointing out that these legal exceptions to free speech creates a paradox that highlights an inconvenient truth about freedom — that while the ability to speak freely on many topics without fear of being jailed or being put to death is quite wonderful here in America, nevertheless it is possible for one person’s freedom to encroach upon or threaten the freedom of another.

In these cases, the law does not give blanket authorization, creating a sort of Darwinian environment where the person who is most fit to speak wins. Rather, the law tries to balance individual freedom against the rights of others to pursue life, liberty, and happiness.

And yet even with these important exceptions, some people have more freedom of speech than others are comfortable with.

Hate speech is one example.

Many online communities ban hate speech and its originators, leading to a mistaken assumption that hate speech itself is somehow a crime.

But this is not the case.

As offensive as hate speech is, the Supreme Court has consistently upheld that acts of hate speech do not in and of themselves constitute illegal activity.

To protect members and build confidence in their services, most online platforms have community standards and terms of service that can get members’ posts deleted or the members themselves banned. But that is a business choice and not a choice based in the law.

This is not a free country, not by any stretch of the imagination. And maybe that’s a good thing.

Whether we would benefit as a society from more or less freedom in certain areas, including that of speech, remains an open question.

I’m more than just a writer. Don’t bother looking for me on Twitter. This is my home at the moment.

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