Better Left Unsaid: Should Freedom of Speech Ever be Restricted?

Karol Figueroa, Kelly Johnson,

And Robert C. Engesser

Com 2230/01

Jake McNeill

14 November 2005

Outline of Contents

I. Introduction

A. Freedom of Speech (FOS): Privilege and Burden

B. In the following essay/presentation we will…

1. Define FOS

2. Explore the legal boundaries of FOS

3. Detail moral conflicts of FOS

4. Chronicle the role of FOS in the media

C. Thesis: ...restrictions on speech, while problematic at best, are essential to the long-term success of this experiment we call freedom.

II. Main Body

A. FOS Defined

1. U.S. Constitution: 1^st Amendment reviewed

2. What constitutes speech? Expression?

3. FOS: A revolutionary idea

B. Legal Boundaries of FOS

1. The First Freedom (Hentoff, 1980), Justice Holmes’ rulings on FOS

2. Laws limiting libel, slander, incitement, etc.

C. Inherent Moral Conflicts in FOS

1. Defending My Enemy (Neier, 1979), Skokie, IL Nazi march

2. The Battle over Flag Burning

2. Anti-liberalism, Anti-war protest, and FOS

D. Indecency, Obscenity, and Secrecy in Regulation of Free Speech in the Media

1. The FCC

2. Decency Acts

3. The Pentagon Papers

III. Conclusion: Yes with an If and No with a But

A. Summary of Research

B. Unfettered FOS vs. Responsible FOS

C. Reiteration of thesis

The right to speak one’s mind is as much a burden as it is a privilege. Freedom of speech affords a person both the right to his or her opinions and beliefs while obligating that person to tolerate the opinions and beliefs others. In addition, those blessed with freedom of speech have an inherent duty to use their freedom responsibly. Inherent duty, however, is not often shouldered voluntarily. Even in a free society, there must be legally imposed limits, boundaries, and obstacles preventing us from slipping into chaos. Too much restriction on free speech can lead to oppression, while too little restriction can lead to abuse of liberty. Therefore, the question becomes, “What boundaries, if any, should be imposed on free speech?” In the following paragraphs, we will define freedom of speech, explore the current restrictions on speech, detail some of the moral conflicts created by freedom of speech, chronicle the role of free speech in the media, and draw a clear delineation between responsible and irresponsible forms of speech. By covering these topics, we hope to demonstrate that restrictions on speech, while problematic at best, are essential to the long-term success of this experiment we call freedom.

Freedom of Speech Defined

Before we can fully explore the ramifications of limiting free speech, we must first define it. Freedom of speech in America is derived from the First Amendment to the U.S. Constitution. As found in The U.S. Constitution and Fascinating Facts About It (Jordan, 2003), the amendment reads;

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 of the right of the people peaceably to assemble, and

to petition the Government for a redress of grievances.

As in much of the Constitution, the language leaves a lot of room for interpretation. Absent from the First Amendment is a clear definition of what does and does not constitute speech. This ambiguity has fueled debate in our courts, and between our lawmakers, since America’s inception. Speech can be defined as the communication of ideas, opinions, and beliefs to others. This communication can also be accomplished by symbolic action or expression. In The Right to Protest: The Basic ACLU Guide to Free Expression (Stern, et al, 1991), speech is defined in a broader sense as facilitating “the search for truth.” The ACLU further states, “Freedom of speech is indispensable to individual self-fulfillment through self-expression” (Stern, et al, 1991). Whatever the terminology, freedom of speech is a bold experiment that has lit the world for over two hundred years. It has proven itself vital, not just to the freedom of society as a whole, but also to the development of individual liberty and personality. Despite our best effort at times to suppress it, freedom of speech has exceeded the wildest dreams of our fore fathers. As John Adams once said (as cited by Jordan, 2003), “Let the human mind loose. It must be loosed. It will be loose. Superstition and Despotism cannot confine it.”

Legal Boundaries of Freedom of Speech

As with any grand experiment, freedom of speech has grown, changed, expanded and contracted, and expanded again. With each passing decade, and with each cultural shift, our concept of how far free speech should be allowed to go has altered. Limits on free speech continue to be added, discarded, and debated as a necessity to maintain a cohesive society. In The First Freedom, Nat Hentoff (1980) describes two separate First Amendment cases decided by the Supreme Court during World War 1. Hentoff (1980) recounts the case of Schenck vs. The United States where Charles Schenck, General Secretary of the Socialist Party, was arrested for distributing leaflets calling for opposition to the draft. Justice Holmes ruled (as cited by Hentoff, 1980) that such leaflets would have been protected “in many places and in ordinary times” but not in times of war. Justice Holmes believed that such rhetoric could hamper the war effort and presented a grave threat to the country. However, in Abrams vs. the United States, similar leaflets were thrown out of windows and instead of upholding the arrest as he had done in Schenck, Justice Holmes (as cited by Hentoff, 1980) overruled the verdict by stating that the government “could not forbid all effort to change the mind of the country.” Justice Holmes, when faced with two nearly identical cases pertaining to free speech in wartime, delivered contradictory rulings. In ruling against Schenck, Justice Holmes declared that speech that is detrimental to the national interest could not be protected under the First Amendment. The encouragement of draft dodging, during a major armed conflict, placed the lives and liberties of hundreds of Americans at risk. However, by ruling in favor of Abrams, Justice Holmes clearly set boundaries on the government’s censorship of wartime protest. He wrote into the record that, even in times of great peril, room must be allowed for dissent.

Beyond stifling incendiary speech in times of crisis, what limitations on free speech exist to protect Americans in ordinary everyday life? Make no mistake; speech is one of the most powerful weapons known to man. It can be wielded to protect our beliefs, our ideas, and even our lives. Speech can also be used to destroy reputations, livelihoods, and the process of peaceable discourse. It is for that reason that we have laws restraining libelous, slanderous, and inflammatory speech. In Insult to Injury: Libel, Slander and Invasions of Privacy, William Jones (1990) defines defamatory statements as exposing “a person to hatred, contempt, ridicule, or obloquy, or causes him to be shunned or avoided, or has a tendency to injure him or his occupation.” According to Jones (1990), Laws against defamation are intended to ferret out lies, not merely disparaging opinions. Defamation can be broken down into two separate categories; Libel and slander. To sum up Jones (1990), libel constitutes any defamatory language that is transmitted, either written or spoken, through mass media. Legally, the damages resultant from libelous speech is “presumed” (Jones, 1990). Slander covers any oral defamatory speech not within the boundaries of mass media. In other words, slander is spoken either publicly or in privately so long as radio, TV, and print are not involved. The problem with prosecuting slander is that damages are not presumed, they must be proven as “special damages” (Jones, 1990). As reported by the ACLU (Stern, et al, 1991), no federal law has been created condemning defamation, but individual states are free to define defamation and provide victims with an avenue to litigate and recover damages. These laws exist to protect Americans against false and malicious attacks that can be unfortunate by-products of free speech. Without recourse against baseless accusations, Americans may have abandoned freedom of speech out of necessity a long time ago.

The speech of protest, also considered dangerous (but in a good way), has its own set of rules and regulations. Protest, as with any speech, can go too far without a minimal system of checks and balances. The ACLU (Stern, et al, 1991) detail three basic regulations that apply to any protest in their book The Right to Protest. First, protesters must be issued a valid permit to facilitate legal assembly. Second, the assembly must be in a traditional public forum. Traditional public forums can include any location that can be reasonably considered to be public that does not restrict the flow of commerce or overly disrupt the general peace. Third, the sanctioning government may place reasonable limitations on the time, place, and manner of the demonstration dependant upon the circumstances so long as the content of the demonstration is not regulated. These regulations exist not to frustrate or inhibit protest, but to protect the protestors, those protested against, and the general welfare. The greater intention of laws that regulate speech is that of protecting the freedom of speech for all who would enjoy it.

Inherent Moral Conflicts in Freedom of Speech

Protecting freedom of speech can often lead us into a moral quandary. The atrocities perpetrated upon the Jewish people during World War 2 still evoke strong emotions today. To defend the mindset, which set about the extermination of over six million people, would be unthinkable to most Americans. Yet, in 1977, a concentration camp escapee named Aryeh Neier (1979) defended the right of American Nazis to march through the streets of Skokie, Illinois. In his book, Defending My Enemy, Neier (1979) wrote, “Freedom has its risks. Suppression of freedom, I believe, is a sure prescription for disaster.” Despite losing much of his family to the holocaust, Neier acted on the premise that the surest way to prevent another tragedy would be to allow all points of view to be heard. Justice Oliver Wendell Holmes (as cited in Neier, 1979) once wrote “If there is any principle of The Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us, but freedom for the thought we hate.” In 1978, The Supreme Court agreed with Neier (1979) that the Nazis were protected under The First Amendment and should be allowed to march. The only thing that separates a free society from others is the free flow of ideas. The truest test of a free society may be its ability to uphold the rights of even the most despicable of its citizens.

Another philosophical battle that has been brewing for many years in this country is the issue of flag burning. As a form of protest, nothing makes a more provocative statement than the symbol of the world’s most powerful nation in flames. Flag burning has been used to condemn America’s government, our way of life, and our attitudes towards other cultures just to name a few. To many Americans, flag burning is an affront to everything they hold dear. Beyond insult, these Americans feel that flag desecration is a personal attack on those who sacrificed their lives for the principle of freedom. Therefore, for years, a movement has been pushing for a constitutional ban on flag burning. Why create an amendment? Because, with each law passed banning flag burning, the Supreme Court has countered by striking them down. As recorded by the ACLU (Stern, et al, 1991), the Court ruled, in 1989, that flag burning “was the expression of ideas through activity or expressive conduct.” They further intimated that the principle argument against flag desecration was the government’s disagreement with the ideas expressed. The Court considered that argument to be without merit and against the spirit of the First Amendment.

Differing points of view, though equally well intended, can evoke rabidly vicious emotions. Consider the time before our invasion of Iraq: Outspoken liberal celebrities could be heard everywhere, denouncing the government’s case for pre-emptive war. Conversely, the conservative backlash against these celebrities was equally loud and doubly vicious. Often times, these philosophical disagreements spill over into the most benign of situations. Bull Durham is possibly one of the most beloved baseball movies of all time. In fact, The Baseball Hall of Fame had scheduled an anniversary celebration for Bull Durham and invited the cast of the movie to participate. However, once cast members Tim Robbins and Susan Sarandon made anti-war comments prior to the Iraqi conflict, the Hall withdrew their invitations and canceled the celebration. Hall president, Dale Petroskey (as cited in Wnbc.com, 2003) felt that the opinions of the two actors damaged U.S. foreign relations and put American soldiers in peril. By Contrasr, in her book, Treason, Fox News commentator Ann Coulter (2003) attacked the “un-American” mindset of liberals. Coulter (2003) writes, “Whenever the nation is under attack, from within or without, Liberals side with the enemy. It is their essence.” Coulter (2003) continues her vitriol, “Liberals warm to the idea of American mothers weeping for their sons, but only if their deaths will not make America any safer.” Each opponent values human life and loves America. Yet each side has drastically different moral views on how America should be protected. Instead of raising the level of debate, Liberals and Conservatives attack each other’s patriotism and question each other’s rights. Moral conflicts often have the effect of tearing us apart rather than drawing us together under a shared freedom. S.G. Tallentyre (1906) described the promise of free speech best when he paraphrased Voltaire by stating, “I disapprove of what you say, but I will defend to the death your right to say it.”

Indecency, Obscenity, and Secrecy in the Regulation of Free Speech in the Media

Defending fringe elements of speech becomes an even stickier issue when broadcasting is involved. As chronicled By William Ray (1990) in FCC: The Ups and Downs of Radio and TV Regulation, Franklin Roosevelt created the Federal Communications Commission (FCC) in 1933. The FCC’s purpose is to regulate the airwaves, be it television or radio. Ray (1990) reports that anyone who transmits and sound or image by radio or television must first obtain a license from the FCC. These licenses are limited by design in order to allow the FCC to revoke a station’s broadcasting status if necessary. The necessity of license suspension would arise if the station had violated a law, or laws, regarding broadcasting standards set forth by the FCC. Ray (1990) mentions two particular violations regarding speech: The use of indecent or obscene language. Indecent language is defined as having “no redeeming social value, being patently offensive by community standards, and occurs when its use can be avoided without hindering the thoughts one wishes to convey” (Ray, 1990). Obscene language has much the same definition as indecent, except for also “appealing to the prurient or sexual interest” (Ray, 1990). One could argue that these rules stifle the free exchange of ideas and opinions, however disagreeable. Consider the case of George Carlin and “The Seven Filthy Words” as reported by Ray (1990). Carlin, in a taped broadcast, commented on the words he believed you could never say on air (i.e. shit, piss, fuck, cunt, cocksucker, motherfucker, and tits). Because of the broadcast, the Pacifica station was sanctioned by the FCC for language deemed to be both indecent and obscene. Upon appeal to the Supreme Court, the justices ruled in favor of the FCC, stating that “Offensive and indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of the intruder” (Ray, 1990). In this particular incident, concerns of the community outweighed the right of free speech.

On the other hand, maybe the government should not have sweeping authority over what people should or should not be exposed to. The leak of the so-called “Pentagon Papers” to the press became an explosive battle between the government and the people’s right to the truth. In The Papers & the Papers: an Account of the Legal and Political Battle over the Pentagon Papers, Sanford Unger (1972) details the court battle to suppress the incendiary top-secret report on the Vietnam War. One of the revelations made in the Pentagon Papers, as summed up by Unger (1972), was a memorandum by Assistant Secretary of Defense McNaughton that evaluated the U.S. goals in Vietnam as seventy percent avoidance of a humiliating defeat and only ten percent towards improving the quality of life for the South Vietnamese people. The Papers also detailed a “provocation strategy” to create an escalating conflict prior to the Gulf of Tonkin incident, a planned overt war by the Johnson Administration long before Congress or the public was informed, and indications that controversial bombing was ineffective in relieving pressure on American troops (Unger, 1990). To suppress this information, the government waged war in the courts. Again, the Supreme Court became the deciding body with which this landmark case would be decided. To sum up Unger’s (1990) findings, the Court, in a six to three decision, ruled that the press had a right to print their story as the information therein was of direct interest to the public. The Court also found that it was the government’s duty to tend to its own internal security. With the Pentagon Papers, the U.S. government sought to keep information, vital to the lives and interests of the American people, a secret. Did the exposing of this information due harm to America’s image abroad as well as at home? Of course, but a larger victory was had in what the Court stated as “The only effective restraint upon executive policy and power may lie in an informed and enlightened citizenry” (Ray, 1990).

Conclusion: Yes with an If and No with a But

In a perfect world, there would be no need for laws and restraints against freedom. Sadly, we do not live in a perfect world. If the preceding research and opinions seem to double back on themselves, and provide contradictory evidence, then we accurately portrayed the conundrum of freedom of speech that will continue to be played out for years to come. Freedom of speech is essential to growth of society upon the currency of ideas. Unpopular ideas, opinions, and expression must be provided the same protection as all others. The search for truth should never be suppressed regardless of what we may find. Nevertheless, free speech, in certain cases, should be limited to its appropriate time and place. It should not be brandished as a weapon to maliciously defame others without basis. Lastly, the government should be empowered to protect the integrity of our society. Should freedom of speech ever be restricted? The answer is yes with an if, and no with a but. Unfettered freedom does not exist. We are not free to murder, free to steal, or free to infringe upon the rights of others. Laws restraining freedom are necessary in order to limit the human race’s penchant for treading upon the liberties of others. The challenge in restraining free speech is walking that fine line between oppression and responsibility. Responsible use of freedom is not innate. Boundaries must be erected in order to coerce a free people into choosing to act responsibly. The incentives of freedom must be balanced by the disincentive for abuse. However, history teaches over and again the caveat of restricting freedom: Oppression often arrives with the consent of those who will become oppressed. Until that day, the regulation of free speech will remain a dangerous, if necessary, evil.

References

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America. New York: Delacorte Press.

Jones, W. (2003). Insult to Injury: Libel, Slander, and Invasions of Privacy.

Boulder, CO: University Press of Colorado

Jordan, T. (2003). The U.S. Constitution and Fascinating Facts About It.

Naperville, Il: Oak Hill Publishing Company

Neier, A. (1979). Defending My Enemy: American Nazis, the Skokie case, and the

risks of freedom. New York: E. P. Dutton and Co., Inc.

Ray, W. (1990). FCC: The Ups and Downs of Radio and TV Regulation. Ames, IA:

Iowa State University Press

Stern, G., Gora, J., Goldberger, D., Halpern, M. (1991). The Right to Protest: The Basic

ACLU Guide to Free Expression. Carbondale, IL: Southern Illinois University

Press

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New York: E.P. Dutton and Co., Inc.

Wnbc.com (2003, April 23). Robbins Rants Over Critics Of His Antiwar Views: Actors

Speech Chides Baseball Hall Decision, Media Outlets. Wnbc.com Entertainment.

Retrieved July 8, 2004, from http://www.wnbc.com/entertainment/2116086/detail.

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