In Defense of Expression

Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.  Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.  The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

            Louis B. Brandeis, 1928

When the Anti-Federalists grudgingly accepted the U.S. Constitution in 1789, they did so with the caveat that certain liberties be included in the document.  These would be liberties that were not susceptible to the whims of the government or other forces.  One of those liberties was the freedom of speech.  I’ve written often about the subject, both its importance and its limitation.  It is a passion of mine and one that is increasingly under attack.  It is, at present, our most endangered right.

In 1644, writer John Milton addressed the Parliament to oppose a bill that would heavily restrict what the country’s authors could and could not write about.  The speech, detailed in Milton’s Areopagitica, is considered one of the finest defense of expression.  It is a damning account of the writer’s belief that any “standardization” placed on writers could create consensus and intellectual laziness because faith and knowledge will not have the opportunity to “exercise itself.”  What Milton is talking about is that any limit to expression, be it written or oral, is a two-way bondage.  On one hand, it prevents from one the chance to express themselves but, on the other hand, it prevents the majority the chance to strengthen their own position by listening to others.  Knowledge cannot be improved upon unless it is challenged and forced to defend itself.

The Founding Fathers understood the importance of the freedom of speech, given its prominence within the First Amendment of the U.S. Constitution.  Economist and philosopher Rosa Luxemburg referred to such a freedom as the right of the dissenters.  Freedom of speech only for the loudest or the most powerful is no freedom at all but a tyranny.  People who exist in such bubbles are at risk, as Christopher Hitchens once said, of taking “refuge in the false security of consensus.”  Individuals who only listen to like minds, who only watch like presentation of news or information, who refuse to hear or attempt to shout down any contrary point of view are ultimately dooming themselves. 

Such people are being witnessed throughout our country, on campuses from Yale to the University of Missouri to many others.  The situation at Yale University has been most publicized because of a viral video showing one out of control student yelling and cursing at a university administrator who had sent an email to consider others before deciding on a Halloween costume.  To some students, it was not enough to “encourage” others but to demand that no one wear a costume that could potentially offend someone or violate someone’s “safe space.” 

When you hear stories about this, it is enough to shake one’s head.  What many of these students are going on about when talking about “safe spaces” and the like is a demand to go through life un-offended.  In their young lives, they have either never been told or have chosen to forget completely the lesson about other ideas or words, particularly if they don’t like them.  What is offense taken?  In my twenty years as a teacher, as a former Marine, as a Jew, as a guy of size, I’ve heard many things in my life that would be deemed offensive.  However, I learned quite early that it does not matter what is said.  Unless it is true, what do I care?  It is not surprising that many have characterized these “crybullies” (not my word) as entitled and spoiled. 

A person should have the right to wear whatever they want as a costume or in an arena of ideas, be able to say what they would like.  Does such a right protect one from criticism or counter-ideas?  Unequivocally, the answer is no.  However, to stage protests that prevent the free expression of ideas is a dangerous trend.  Such rights have emboldened oppressed people for centuries in this country.  As many of these protesters are people of various races, it is even more perplexing because a commitment to freedom of expression has allowed one civil rights’ movement after another to be born, prosper and ultimately, succeed in this country.

I have strong opinions about freedom of speech.  There are limits however, outside of those very few exceptions, the right to express oneself in either offensive or banal terms is unassailable.  The Constitution says that the government was created to “secure the Blessings of Liberty.”  Secure, not bestow or create but secure.  That means the rights pre-date the government.  These are rights with which we are born and cannot be taken from us by government.  Let’s hope mob rule does not do the job.  

The Legacy of Voltaire

Speech is civilization itself....It is silence which isolates.
             Thomas Mann

This past week, three heavily armed and religiously motivated gunmen attacked the office of Charlie Hebdo, a fringe Parisian satirical magazine.  A harder-edged Mad Magazine, it goes after a wide range of targets, including those espousing Islamic fundamentalism.  Twelve were killed, including the editor, many of the staff’s cartoonists and at least one police officer to silence disagreeable ideas.  By Friday of this week, the men responsible were gunned down by French police.  From the shock and outrage of the event, an important cause has re-emerged that has been largely forgotten throughout Europe – the freedom of expression.

Throughout Europe, various countries have eliminated or restricted expression for fear of offending.  Whether it be cartoons or restrictive measures against anything entitled “hate speech”, Europe has tied itself into legislative and linguistic knots to prevent anyone giving offense.  A few years ago, Europe shrank from the violence throughout the Middle East over cartoons…cartoons!  As a result, many European countries have attempted to curb what can and should be said about various groups – be they ethnic or religious. 

In their efforts to eliminate “hate speech”, these democratic countries have taken away the choices and the rights that democratic people have traditionally treasured and enjoyed.  As a history teacher, I’m not blind to the historical context that some of these laws have but ultimately, they are self-defeating.  As Voltaire said, “Men will always be mad, and those who think they can cure them are the maddest of all.”  And in an attempt to ensure that people are capable of going through life without distress, some European countries have sacrificed a fundamental right of a free people.

As the fallout of these deaths is felt, the reaction has been typical from the home of the satirical and philosophical giant, Voltaire.  And in the writer’s spirit, leave it to the obdurate, infuriating French to reassert values that much of Europe has lost track of over the last several decades.  Freedom of expression and speech means nothing if it only applies to that which is acceptable or safe.  Charlie Hebdo has spent the better part of five decades offending and shocking people with its cartoons and articles.  Though the publication may have crossed the line over the years (some regular readers say it happened often), a free society must accept and allow for it. 

Every free society runs risks.  Yes, there is a chance that another attack might occur, particularly because Charlie Hebdo has declared that they will continue.  However, the power to speak one’s mind, even if one is an idiot or a psychopath, must be equally treasured.  If a government can declare one person’s opinions not worthy of airing out, whose opinions will be next? 

So, how does a nation confront such speech – be it from xenophobes or fundamentalists?  More free speech.  Consider Germany.  While saddled with its own misguided speech laws, speech has countered speech.  A group out of Dresden called Pegida (Patriotic Europeans Against the Islamization of the West) has attempted to get its point across through protest marches (no doubt they will be emboldened by the events in Paris).  However, Germans who disagree took to the streets in record numbers to counter protest.  Ultimately, hateful speech needs to be aired so that it may be legitimately countered and defeated.  Otherwise, the baleful ideology festers and grows.

It is heartening to see the French fight back with a renewed commitment to freedom of expression – not just journalistic but individualistic as well.  Though the French have their own nationalist groups (Marine Le Pen’s Front National for example), they have answered the terrorist attacks not with hate but with a reassertion of democratic values and principles.  The West is guilty of many things but at our best, democratic principles represent the full-realization of the individual – be we French, American, Egyptian, Iranian, whoever.  Though we do not always get it right, freedom of expression applies to all and it will be our legacy.

The Rightness of a Right?

In recent weeks, a great row has exploded over an opera being performed at the Metropolitan Opera House in New York.  The play, The Death of Klinghoffer, loosely portrays the events surrounding the 1985 Palestinian terrorist takeover the Achille Lauro in the Mediterranean.  The event led to the execution of a disabled American Jew who was subsequently dumped into the waters in his wheelchair.  The children of the late Mr. Klinghoffer, and many others, are outraged while First Amendment advocates say that it is an acceptable form of protected speech.

The question with a situation like this opera, which I have not seen and my memory of the actual event only cursory, is a little different for me than it might be for others.  In a country where we have free speech the legality of such an opera is not in question.  Of course, the makers of this opera and the Met are certainly within their rights to put it on.  The real question with things like this is often, is it right to do it?  When one questions the correctness of doing something, and not the legality of it, such arguments are often the target of general mocking as an example of provincial values.  There is also decency and awareness that seems to be lacking. 

I should say that, from time to time, a society should be shocked and outraged.  It serves as a reboot to our obligations to our fellow man and a renewed sensitivity toward how others perceive things.  When American artist Robert Mapplethorpe produced an image of a crucifixion within a jar of urine, it ignited a conversation that was ultimately, one could say, good for our society.  Yet, advocates for such actions miss the point when they bring up freedom, artistic or otherwise.  Freedom is not some exercise of one’s id – free of judgment and consequences.  This is what makes the opera’s advocates’ objection to the criticism a bit strange. 

I recall the fiasco of the Dixie Chicks and their criticism of the president of the United States during the onset of the Iraqi War.  Similar to the recent opera incident, Natalie Maines flew off the handle at the president in a foreign country and bemoaned those who fired back.  The incident effectively ended a great career of talented musicians.  Once more, there is a disconnect between the right to do something and its correctness.  The other point missed was the argument about the values that surround our rights.  With each of our rights is an underlying principle of a humane society.  Because Ms. Maines chose to take a rather one-dimensional look to the reaction of her pablum, she failed to understand the issue.  What will become of this new manifestation of the same problem? 

At the risk of being melodramatic, I think our society is in trouble because of our unwillingness to stand up to certain things.  Again, I’m not speaking to the legality of the Met (who cancelled the televised broadcast of the opera for fear of it coming across offensive) to put on such an opera but whether it is a good idea.  So much of the typical offenses committed throughout a typical day are not a question of the law but one of taste and decorum.  This can range from profane music being played loudly to questionable outfits worn by high school students to a parent yelling and screaming at their child in public.  None of these actions would get someone arrested but it goes to our understanding of our situation and respect for others. 

As for the opera, I get that art is designed by its very nature to be controversial and thought-provoking.  However, offensive art is no different from offensive voices or actions in the political arena.  Mr. Klinghoffer’s children rail against, in their opinion, the minimization of their father to a simple tool for terrorists.  Others, like lawyer Alan Dershowitz and First Amendment expert Floyd Adams are horrified at the moral equivalency drawn by the opera between the Palestinian diaspora and the Holocaust.  No matter the arguments, there are some obvious issues with the production that should have led people to ask some obvious questions.  It is a pity that never happened.

The Scope of Free Speech

If we don't believe in freedom of expression for people we despise, we don't believe in it at all.
           Noam Chomsky

In recent weeks, a row has emerged from the owner of the National Basketball Association’s Los Angeles Clippers – Donald Sterling.  He’s the longest serving owner in the NBA but due to a couple of well-publicized incidents, he has often been thought of (when he was thought of) as a buffoon.  Last week, a secretly recorded tape showcased Mr. Sterling’s backward thinking and racism.  In the aftermath, the commissioner of the NBA, Adam Silver, banned him for life and is attempting to force the sale of his club to the league so that they may seek a more suitable owner.  As ridiculous as Mr. Sterling’s comments were, I’m confused and alarmed by the action taken and the players’ reaction to the owner.

There are two major things about this whole fiasco that bother me.  The first is the nature of the comments and the league’s reaction to the same.  So that my affiliation is clear, I don’t subscribe to Mr. Sterling’s point of view.  He is like the drunk uncle at family gatherings whose embarrassing paradigm is stuck about sixty years in the past.  That said, the NBA’s actions are a bit dangerous to me.  In my perfect world, people like Mr. Sterling are taken care of by the market and its refusal to patronize his product.  However, not many people, let alone sports fans, have the courage of their convictions when their “team” is the question.  So, they want somebody else to do something.  In steps the commissioner.  

Mr. Silver laid down the law that Donald Sterling’s words, secretly recorded in the privacy of his own home, are grounds for immediate and indefinite suspension.  However, my problem has to do with the basis for the commissioner’s actions.  As Dallas Mavericks’ owner Mark Cuban said, it is not against the law to be stupid and backwards.  So, what is the fallout if you make it a crime?  Some might say, what is wrong with taking action against a racist?  The problem is that it seldom stops there.  History shows us that people with the power to control the masses begin with the agreed upon.  People feel comfortable with the first salvos – who is going to defend the actions of a racist?  Yet, it is a slippery slope and I’m concerned about the precedent set.   

The other matter that I do not understand is the reaction from the players and observers.  It seems we are giving way too much attention to the thoughts and actions of an 80-year-old, publically insignificant figure that people wrote off as a joke years ago.  Players turning their jersey inside out in protest – I want to know the individual who, prior to, connected the name “Clippers” only to Donald Sterling and not the men on the court.  Players emotionally declared the level of hurt and pain this has caused.  Unfortunately, it is likely these young men have suffered in the past from racism.  This is the worst?  The private ramblings of a marginalized man has caused this much distress and emotion?  I would suggest to you this man has never been given so much attention in his life.   

I don’t have the answer to racism.  Yet the attention paid to Mr. Sterling is disproportionate to its impact.  Additionally, when an organization can punish thought and privately expressed thought at that, what does that mean?  As a Jew, I learned early that even the neo-Nazis should be able to speak their mind publicly.  Forbidden speech is emboldened speech.  The protection of speech, certainly what is said in the privacy of one’s home, is paramount in a free society.  Racists and others of their ilk, in a free society, will face condemnation and marginalization.  The actions of the NBA commissioner borders on the tyranny of the majority and in the end could prove just as destructive as the racists.    

The Reign of the Heckler's Veto

Some years ago, historian Richard Pells wrote a book entitled Not Like Us: How Europeans Have Loved, Hated and Transformed American Culture Since World War II.  In it, Mr. Pells suggested that while many say, certainly in Europe, that the United States has had a disproportionate influence on the Old World, the facts suggest the opposite.  Over the last couple of decades, European jurists have protected the angry responders to provocative speech or action.  In American legal jargon, it is known as the Heckler’s Veto.  Instead of affirming the right to speech or thought, we side with those that are offended, sometimes to ridiculous lengths.  The examples from Europe have been headshaking but Americans have always felt they could smugly believe that it is not the way here.  According to the 9^th U.S. Circuit Court of Appeals this past week, that has changed.   

A couple of years ago, in a California high school, a group of Mexican-American students decided to make a public display over Cinco de Mayo.  In doing so, they hoisted a flag onto a tree in front of the school and celebrated underneath.  In a childish tit for tat, a couple of non-Hispanic students decided this would be a good day to wear shirts with American flags on it – in response to the festivities in front of the school.  Then, the Cinco de Mayo celebrants had an issue with this and threats were levied against the non-Hispanic students – in this case it was physical violence threatened.  The administration, fearing that a disturbance could quickly ensue and escalate, told the non-Hispanic students they had to take the shirts off or turn them inside-out.  Otherwise, they would be forced to leave the school.  Thus was struck the first blow on behalf of the Heckler’s Veto – the restriction of one person’s speech because of the potential disturbances caused by others. 

The parents of the American-flag wearing students sued and the case went before the 9^th Circuit Court of Appeals.  Typically, the 9^th Court is known for a rather liberal take on the Constitution.  Being based in California and covering territory that includes the Pacific Northwest, its ideological foundations are certainly in line with a segment of that region.  However, it seems their most recent ruling is more illogical than most.  The 9^th Court ruled that, in accordance to precedent set by the Supreme Court and other lower courts, schools have the right to do what is necessary to preserve order and the learning environment.   

Typically, this type of latitude by school administrators have been directed towards mandatory drug tests as seen in Board of Education v. Earls (2002) as well as searching student property (lockers) as seen in New Jersey v. T.L.O. (1985).  In 1988, the Court did decide in Hazelwood v. Kuhlmeier that newspaper stories about pregnant teens within the school (as well as sexual content) and students complaining about their parents were within the school’s purview to restrict.  However, one would have to surmise that the wearing of American flag emblazoned clothing hardly falls within the category of traditionally offensive or inappropriate material. 

Still, the jurists of the 9^th District have put a very strange twist on the traditional protection of speech, even in a traditionally restricted area like schools.  There is no Constitutional provision that says that speech can only be free if it does not offend.  Indeed, that is the most important speech to defend.  Presumably, this could go before the Supreme Court and hopefully, cooler and more measured judicial heads will prevail.  It clearly has not in California.  Europe has its own issues with this topic has they have, in some sectors, given up the fight and the importance of free speech and expression.  Should we give up ground on this issue, we will spend our last years on earth, in the words of Ronald Reagan, “telling our children and our children’s children what it was once like in the United States where men were free.”

Revisiting the First Amendment

The First Amendment is often inconvenient.  But that is beside the point.  Inconvenience does not absolve the government of its obligation to tolerate speech.
            Supreme Court Justice Anthony Kennedy

Have you ever read the Bill of Rights?  These are the first ten amendments to the Constitution that were intended to mollify the Anti-Federalists who opposed a government with a stronger federal authority.  It is an amazing experience to read what our Founding Fathers considered important and a necessity to include in our founding document.  Almost as amazing as what is said is what is not enumerated within the Constitution.  I’ve written on the topic of free speech in the past but never have the times called for an explanation of what was not said in the First Amendment. 

Recently, in the National Review, editorialist Jim Geraghty reminded readers of the first time some folks around the world threw their hands up in outrage over “blasphemous” language in the form of Salman Rushdie’s The Satanic Verses.  He posted within his article a video of a Saturday Night Live skit where Phil Hartman and Glenn Close play Barnes and Noble employees fighting off an angry mob with machine guns and evasive maneuvers to continue selling books.  A “dying” Hartman declared that perhaps they should only sale Muslim literature or have “Ayatollah birthday sales.”  Among the laughs and the wincing, it occurs to the viewer that there was a time where we answered this kind of outrage with a reaffirmation of our belief in freedom of speech or expression. 

However, the intended limitation to freedom of speech is not limited to a handful of extremists.  Some Americans have wondered about the protection of speech when it comes to a group of horrid people, members of a “church” out of Topeka, Kansas who protest the funerals of soldiers with the most despicable slogans aimed at the military and homosexuals.  In 1969, the Supreme Court ruled that the racist rant of a KKK leader was protected because it was not designed to call for immediate violence.  In 1995, the Court ruled that the South Boston Allied War Veterans Council were not required to allow the Irish American Gay Group of Boston to march with them in a private parade because doing so would violated the veterans’ freedom of speech by forcing them to espouse something with which they disagreed.  In 1989, the Court ruled that a Texan named Gregory Johnson was within his constitutional rights to burn the American flag.  Two decades earlier, the Court protected students protesting the Viet Nam War with a black arm band in school. 

Throughout our history, we’ve struggled with the consequences of our national convictions and we’ve struggled to live up to the best intentions of our forefathers.  We’ve been tasked with, as Americans, to accept the notion that freedom of speech must apply to those things we don’t like more than anything else.  Indeed, we have no such freedom if it only applies to that speech we find acceptable.  When we stand against someone like the Phelps family in Topeka, we worry about the soldiers, their families and gay men and women who serve as a foil for twisted minds and blackened hearts.  Therefore, we say to ourselves, there must be something that we can do to prevent such speech.  We see violence throughout the world over movies or cartoons and we worry about the American families who have lost loved ones or the Muslim families who huddle in the dark, hoping for the light of tolerance and rationality – for themselves and the ignorance of others who seek to besmirch them.

Roman senator and historian Tacitus said, “The more corrupt the state, the more it legislates.”  From the past, comes a warning.  We, as a nation, must have the security in our own beliefs and our own ideas to not only tolerate the repugnant but to explain our ideas in the spirit it was intended and not shrink from them.  When some might say, “this should not be allowed,” we must make the case that a freedom for our friends only is no freedom at all.  The more conditions we place on such an inalienable right, the more the government legislates and decides for us what is and is not acceptable.  We will continue to surrender our rights until one day, no one may speak and the tyranny that Americans have feared since the days of Thomas Jefferson and Alexander Hamilton will ultimately destroy us. 

 

You Hear One Castro Lover…?

Last week, I mentioned the case of a Marine Corps sergeant who was dismissed from the service for comments made against the president of the United States. The sergeant was wrong and he received the consequences he deserved. However, a completely different case emerged this week dealing with Miami Marlins’ manager Ozzie Guillen. Mr. Guillen is a man known for saying outrageous and controversial things and the Marlins’ new skipper, in his first week on the job, came out of the gate firing on all cylinders.

To Time Magazine, Mr. Guillen said he respected Fidel Castro and his ability to hang on to power for so long. In 2008, he said that while he did not respect Mr. Castro’s philosophy, he admired the man’s ability to stay in power, surrounded by those who would push him out. On Tuesday of this week, the Marlins suspended their manager for five days, without pay and repeatedly assured its fan base, made up, in part, by Cuban refugees, that it will not tolerate such comments. However, can it be said that the Marlins do not tolerate free speech?

The manager has the right to say and to voice whatever opinion he wants, though now he suggests that his comments were more nuanced than what was reported. However, the Venezuelan-born baseball manager seems to have forgotten his surroundings and his new fan base. The state in general and the city in particular is home to one of the largest concentrations of Cuban exiles in the country. Mr. Guillen’s comments were about as ill-fitting as one wearing a “Che” shirt through Little Havana in Miami.

The manager has been quick to emphasize that he does not believe in or endorse the methods of Fidel Castro, as he also emphasized in 2008. However, activists demand his job and promise they will protest until he is fired. A firing could happen but it is not likely. Mr. Guillen was paid a huge contract to come to Miami and oversee a group of players that represent even more money as they play in a brand new ballpark. Still, the Marlins are very sensitive to their Cuban constituents, as they should be.

As for Mr. Guillen, he does have the right to say what he wants but with every right guaranteed us in the Constitution comes responsibilities. To what extent he can re-ingratiate himself with the Marlin fans is something we will have to wait and see. The question that began the blog was, do the actions of the team constitute a disregard for Mr. Guillen’s freedom of speech. In short, no. The manager represents a part of the leadership of the Miami Marlin organization and as such, his comments, intended or otherwise, are seen as reflections of team attitudes. Even in a case as blatant as this, where it is clear that the opinions were that of Mr. Guillen alone, he still is part of the face of the franchise. As such, he has a responsibility to the fan base and must be answerable to them.

Personally, I think the Cuban outrage, as legitimate as it is, can be used as a force of good. This is an opportunity to teach the real story behind Fidel Castro and his regime. As young people walk around with “Che” shirts on, celebrating a person responsible for the death of thousands on behalf of the Castro government, this is a chance to right a historical fallacy. As for the manager, who will have began this dialogue, perhaps Mr. Guillen has learned a lesson and might be permitted to stay.

A Military Case of Free Speech

One of the downsides of social media forums like Facebook (and blogs for that matter) is that it gives people the opportunity to give their opinion, where in their actual lives, they would have neither a forum nor an audience. Some see this as the ultimate expression of the First Amendment right to freedom of speech. However, it often serves as a transcript that can indict people who step over the line. Enter stage left Marine Corps Sergeant Gary Stein whose Facebook page, entitled Armed Forces Tea Party, included his statement that he would not follow orders from the president that violated the constitutional rights of fellow American citizens. As innocuous as that might seem to the average reader, there is an inherent danger as well.

Since the time of the Civil War, it has been an unofficial policy that military members have a reduced expectation of certain rights. Key among these is the freedom of speech. It should be said that, if his views are conducive to some of the fiscally conservative ideas of the Tea Party, I am sympathetic towards his goals. However, no civilian-controlled military can permit military members to express objections to the president’s authority. We are assuming that many other government and legal machinations would prevent the president from violating American’s constitutional rights. In that case, Sgt. Stein has no grounds for disobeying a presidential order. It does not matter whether he political agrees with the president or not, world history is replete with examples of what happens when military members move to protest or object to civilian policy.

What is most troublesome, not unlike the woman who went to a Catholic university and then demanded contraception, when one goes into the military, it is said and said often the relationship between their freedom of speech and the presidency. The president of the United States is the commander-in-chief of all armed forces and in that sense is Sgt. Stein’s boss. From the beginning of his enlistment and throughout his career (as a sergeant, it can be assumed he has been in at least six years), he has been told that he cannot criticize the president or his policies openly. I’m not sure if Sgt. Stein is challenging his dismissal from the Marine Corps as a protest to the policy but it cannot be from a position of ignorance. He knew the military policy on such political writings and to that degree, he must face the consequences.

It might seem odd that a conservative take this point of view but this is not about politics or the current administration. This is about sound military order and discipline and as president, Barack Obama cannot ask his military to do something, he must be able to order and expect immediate and dutiful compliance with the same. Anything short of that and the country runs the risk of a military that can pick and choose the orders they follow. As we’ve seen in so many other countries, that never works out.

Update: Late yesterday, a military board ruled in favor of dismissing Sgt. Stein from the Marine Corps. If I remember my Uniformed Code of Military Justice correctly, the decision goes before a general who can either sign off on it or reject it. Afterwards, we will have to wait and see. The sergeant's lawyers expressed shock at the verdict. ("I'm shocked, shocked to find that gambling is going on in here.") Hard to know how to respond to that one.