8 November 2008
Nothing sets the USA apart quite so much as the fact that we protect our freedom of speech with the fervor of a religious zealot. Since I worked as a lawyer for the executive branch of state government, I’ve often worked right at the place where issues of freedom of speech intersect with the role of government in protecting the public interest.
For those who may not be familiar with the law of free speech in the USA, it is governed by our First Amendment to the Constitution. The sum of all of our free speech rights and freedom of religion is contained in this sentence:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Our laws in the USA, protecting the right of speech and of public assembly, are in marked contrast to laws in most other parts of the world. In large part, it is the fact that we protect these rights which gives us the reputation as the land of the free.
The real significance of our freedom of speech sometimes is brought into sharp relief by the contrast between what we have and what is experienced in other nations. For example . . .
Today’s New York Times contains an article about an Internet blogger detained in Malaysia who has been ordered by the courts to be released.
International / Asia Pacific
Malaysian Court Frees Blogger
By THOMAS FULLER
Published: November 8, 2008
In what lawyers described as a landmark ruling, a court in Malaysia ordered the release of one of the country’s best-known bloggers.
According to the article, the blogger has been like a thorn in the side of the current government. The government of Malaysia detained and charged him pursuant to its Internal Security Act. The Times article states, "When it [the Internal Security Act] was introduced in 1960, the government said it would be used to protect people ‘from communist subversion.’ Tommy Thomas, a prominent Malaysian human rights lawyer, estimates that more than 20,000 people have been detained under the act ‘for diverse reasons which have nothing to do with communist subversion.’"
Communist subversion. Hmm. Does this sound familiar? To be honest, "communist subversion" as a political position is not any more popular in the USA than in Malaysia. However, it’s not illegal here. Indeed, the difference in approach that the two nations take in response to threats of "communist subversion" brings into sharp contrast the difference between USA and Malaysian law. Namely, in the USA we believe that if we are to protect free speech at all, we must even protect all political speech. All of it. Even speech that we might find reprehensible. The fundamental idea is that, in the marketplace of ideas, if we give full expression to all ideas that the good ones will win and the bad ones will fail. Think of it as capitalism in the marketplace of ideas. So, we protect all political speech, even speech that we (meaning the majority of us) hate to hear.
Let me emphasize the part that says, "that we hate to hear." There is nothing easy about swallowing this medicine. There is nothing easy about listening to speech that makes our stomachs churn.
This is the reason, I believe that people don’t like lawyers. Lawyers always plan for contingencies, look ahead, and tell you how you need to shape conduct so that you don’t get into trouble down the road. This usually involves being told something that you don’t want to hear. Sometimes they tell you that if you want to protect speech you love, you must also protect speech you hate, because you can’t regulate the content of one without regulating the content of the other. Because, once government starts regulating content at all, there is no line to differentiate the two.
This is harder to put into practice than it sounds. The difference is illustrated by two cases I have personally worked on.
Once upon a time, I was given an assignment to analyze whether a parade permit should be granted to a group that wanted to organize a march around the capitol building of my state. The group had already arranged a police presence to make sure that it was an orderly protest, and they promised not to participate in violence themselves. They timed their march for a time when there would be very little traffic or disruption of business activities. Sounds like a no brainer that they should be permitted, except for one thing. This group was the Ku Klux Klan.
For those who may not know, the Ku Klux Klan is a hate group. They do horrible things in the secrecy of night. Like burn churches, set crosses afire in peoples’ front lawns, and do acts designed to intimidate those who would try to exercise their constitutional rights. They unabashedly preach a message of racism, bigotry, and hate. In a land where we respect the idea of majority rule and minority rights, I’m quite sure that the majority itself hates the KKK. Should government allow such a group to assemble and march to demonstrate their outlandish beliefs?
In the United States, the government’s role in ascertaining whether to allow the parade permit, is merely to ascertain whether public safety needs have been met, without regard to the content of the proposed speech or likeability of the group which seeks to assemble. As a result, the KKK is routinely granted parade permits for their gatherings (so long as appropriate police presence is available to ensure that violence does not break out between the protesters and those who come to protest the protesters).
In contrast to this, one time the state government was asked to approve a church initiative to greet people who stopped at rest areas on the interstate highways. The idea was to greet travelers as they passed through the state. The people making the request stated that their objective was to put on a friendly face for the state. They wanted merely to welcome people to the state who might otherwise never know anything about the state, to show what friendly people we are here. The proposed literature would say something about the state and its attractions, list the state bird and flower and tree. The only religious item on the flyer would state that the flyer was donated by this particular religious denomination. The request to perform this worthy-sounding volunteer service was denied. Can you guess why?
If the state allowed any speech in that forum, it would have to allow all speech in that forum. Even speech by the KKK. We, meaning the people responsible for running state government, decided not to open up interstate rest stops as public forums for speech.
When evaluating a free speech request in the USA, it’s helpful to do a mental gymnastic. In the case of the KKK, imagine that it’s your favorite charity asking to do the same thing. If your favorite group should be approved, then the speech you hate should be approved as well. In the case of the religious group wanting to welcome visitors, imagine if it were the group you hated the most. Would you want them greeting people who came to the state? Would you want the KKK greeting people at rest stops and handing out literature?
In both cases, the idea is that the gate is either open to all or shut to all. Government does not judge what is inside the speech. That’s all. That’s what the First Amendment means. Thank goodness we have it, and let’s be sure to protect it.