People have strong opinions about issues, and they want their opportunity to be heard. Our September issues always deal with banned books and censorship. I am not in favor of censorship, but I understand the dangers of allowing books that incite hate, homophobia, antisemitism, and racism to be published under the guise of free speech. I do not want books about how to DIY a deadly bomb or how to carry out biological warfare sitting on the shelves of my neighborhood bookstore.
When I make an editorial decision about publishing or not publishing an article in This Awful Awesome Life, I do not do so lightly. The mission statement of this publication and our readers are my first concerns. We are human, and we all have opinions, but we will not tell you who to vote for in upcoming elections. We will not hold the beliefs of a particular religion or lack of religion in higher esteem. We try to provide balanced accounts of sensitive issues, and we believe it’s important to provide a respite from the misinformation out there. If we do not know something, we will not fake it.
When I came across the book, You Can’t Always Say What You Want: The Paradox of Free Speech by Dennis Baron, I knew I had to share it with our readers. Baron is Emeritus Professor of English at the University of Illinois at Urbana-Champaign. He’s a frequent commentator on language issues in the national media.
In this book, Baron examines the question of free speech as it relates to modern calls for speech legislation by placing the question into the historical perspective of the last 200 years.
The ways we communicate are always changing. We’re no longer grunting and drawing pictures on cave walls. According to Ethnologue, there are currently 7,168 living languages spoken on Earth. Of these languages, 4,065 also have a written form. In addition, we have programming languages for computers that are used for artificial intelligence. We have incorporated words from other languages into our own speech. Thousands of new words have been created and new technologies have provided us with ways to send our words around the world in seconds.
We have greater ways to freely express our beliefs and opinions than ever before, but should we?
How much free speech is too much? We have entered a time when a few powerful speakers are weaponizing their rights to free speech to try to silence anyone who opposes them. Sadly we’ve been here before with dictators and tyrants. One of the first things a repressive government limits is the right of its citizens to free speech.
Though free speech is guaranteed in the United States by the First Amendment, this freedom is not absolute. Laws have been created to protect or limit the words we use. Obscenity laws, though often challenged, prohibit us from saying certain words in certain circumstances. There are laws against threatening the lives of public officials, inciting riots, or treasonous actions against the United States.
Where did these laws come from and how are they interpreted? Baron examines laws limiting freedom of speech in the United States and specific challenges to those laws. Supreme Court decisions deciding the fate of individuals charged with breaking laws limiting free speech are fascinating. Cases which set precedent during one point of time can be used to refute that precedent in later years. How justices choose to interpret laws vary greatly. The Latin term, “Stare Decisis” means “let the decision stand.” In recent years we often heard SCOTUS nominees utter the term during their confirmation hearings. It means courts should honor previous decisions made by the courts.
Schenk v. The United States (1919) is commonly cited during free speech cases. The case revolved around enforcing the Espionage Act of 1917 during World War One. Charles Schenk was arrested for distrusting flyers to draft-age men encouraging them to resist going to war. Justice Oliver Wendell Holmes, Jr. concluded that Schenk’s First Amendment rights to free speech did not allow him to obstruct the draft during wartime because the words Schenk used had the power to create a clear and present danger to the enlistment and recruiting service of the U.S, armed forces during a time of war. This indicates that in peacetime Schenk would been within his rights to distribute these flyers. Holmes opened the door to intent. Schenk v. The United States was eventually replaced by Brandenburg v. Ohio (1969) a case which limited the scope of banned speech to any type of speech likely to incite imminent lawless action.
In Brandenburg v. Ohio, the court ruled that the courts could not outlaw inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg, a KKK leader in Ohio, gave an inflammatory speech aimed at promoting violence and hatred, but because nothing bad happened as a direct result of his speech, the justices ruled it did not fit the test for imminent danger and Brandenburg’s conviction was overturned.
While it’s offensive to think members of hate groups can get away with advocating violence as long as violence does not immediately occur, it’s more offensive to think about the seeds of violence which might have been sown that day and in the future by the court’s decision to allow hate speech disguised as free speech.
These are only a few of the examples Baron cites in this book. He deftly applies these examples to the previous attack on our U.S. Capitol to theorize about Supreme Court rulings in possible cases pending regarding the January sixth.
It will be interesting to see how our conservative court will interpret these precedents. If limits can be placed on one amendment for any reason, can any amendment be considered absolute?
I highly recommend this book to anyone trying to understand how Constitutional Amendments are interpreted.