Schubart: Free Speech Revisited

Aug 21, 2017

The principle of free speech is again being debated in the streets, in op-ed columns, and between opposing ideologies. Although principles are often deemed absolute, their legal application is most often contextual … and therein lies the rub. The context often cited is that it’s illegal to yell “fire” in a crowded theater unless there’s a fire.

It’s also illegal to verbally incite the use of lawless force with intent to do violence and, just recently, to encourage suicide. Pornography has limited protection, but child pornography has none. And there’s “diminished protection” for “commercial speech” such as false or misleading advertising. But the expression of ideas, no matter how repugnant, remains legal.

Courts have consistently confirmed the rights of Nazis, Klansmen, ultra-radical and fringe groups to associate and promulgate their beliefs. The First Amendment also protects the endless stream of partisan invective so riddled with “alternative facts” that fact-checking has become a growth industry. That said, the guarantee of free speech is constantly under legal challenge and review.

Perhaps, the most controversial application of the First Amendment was Citizens United in 2010. Its opponents are adamant about the essential difference between citizens and corporations. Those who support it, including the ACLU, contend that corporations are merely a body of citizens. But detractors question whether the interests of management and shareholders who control corporate messaging and campaign contributions are necessarily consistent with those of the rank and file.

The second point of contention is whether spending money on elections and lobbying constitutes “speech.” If money is indeed speech, it’s hard to see how a poor man has equal footing with a rich one – or how a soapbox could possibly equate with a broadcast network.

After Charlottesville, the emerging question is whether white supremacy demonstrators brandishing automatic weapons capable of spraying bullets into a crowd in seconds constitutes “speech?” Does the confluence of enhanced first and second amendment rights create a new form of threatening speech?

And when amplified by vast media ownership, by millions spent in lobbying, or by the intimidating presence of military weapons, is speech still just “speech”?

The ACLU asserts that our right of free expression rests on the premise that the people get to decide what they want to hear, not government. The ongoing challenge is to sustain that right without compromising other principles like public safety, equal opportunity, and democratic process.