The LA Times ran my column about cliches and slogans that obscure the free speech debate.
Kudos to the Times for making me sound like even more of a choad with the headline.
Last 5 posts by Ken White
- CNN, Doxing, And A Few Ways In Which We Are Full of Shit As A Political Culture - July 5th, 2017
- How the Southern Poverty Law Center Enraged Nominal Conservatives Into Betraying Free Speech Values - June 29th, 2017
- Shock, Dismay In Academia At Scorpion Acting Like Scorpion - June 28th, 2017
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
You do realize that from now on, every time I read one of your posts, I'm going to picture TMNT guy delivering it?
Nicely done, Ken.
Excellent all around: straightforward, concise and thorough.
Sometimes I do wonder whether some readers, at best ignorant and at worst ideologically driven, might read the column and think "He can't say that! It's an abuse of free speech. If we let people speak the way he says they can, it could cause a riot!"
Nice concise article. Thanks for fighting the good fight.
Don't get me started on headlines! I once wrote a serious piece on campus due process for a newspaper and they ran it under the headline "The Feds' Mad Assault on Campus Sex."
Yes, but are you more of a choad relative to the then-current public perception of you, or more of a choad relative to the reality of Ken White?
Could one, perhaps, argue that they merely accurately described your level of choaddity? Or are you darkly suggesting the LA Times editors might be part of the pony conspiracy and seeking to discredit you before your views become mainstream?
Well, actually…
Courts do engage in balancing of First Amendment rights with "other interests" in literally every case in which government action infringes First Amendments, no? Although it's true that "American courts don’t decide whether to protect speech by balancing its harm against its benefit, they ask only if it falls into a specific 1st Amendment exception," if they find that the effected speech doesn't fall into an exception, and is therefore protected, they would then ask whether the governmental conduct furthers an important governmental interest or is narrowly tailored to achieve a compelling governmental interest, both of which require balancing governmental interests against First Amendment rights. And they conduct even more blatant balancing when it comes to grand jury subpoenas and civil discovery. Powell's concurrence in Branzburg actually referred to "[t]he balance of these vital constitutional and societal interests."
That's not the same as the issue you're addressing in the oped–is speech protected based on its "value" balanced against other interests to society?–but I think maybe it makes the strong claim that courts don't conduct balancing with respect to First Amendment rights.
But I welcome a rigorous correction if I'm way off.
The image they used doesn't help you any. Makes me think they are trying to lowkey discredit what you wrote…
@Scott
It's possible, I didn't even think of that. But it certainly seems designed to associate Ken with someone many who would read the LA Times don't like, and thus would give Ken less consideration.
I'm also hate the horrible click-bait headline. Worse, he never says that specifically in the article. Ugh..
@Chris:
Good question. The word limit makes it hard to get into that level of nuance. In brief:
1. It's completely clear you can't create new exception categories through balancing, which is what most censorship arguments amount to;
2. The phrase "protect speech" is doing extra duty there because of the brevity of the piece, basically pointing to what you said — the speech isn't unprotected.
3. Strict scrutiny is so reliably fatal that I don't view it as an exception.
It's not clear how this is "a situation in which a difficult choice has to be made between two or more alternatives, especially equally undesirable ones."
Just came over here from the Times, recognized your byline, good piece. You can always assume that the editors will make the headline as provocative as they can to maximize clicks. The picture didn't do you any favors, there's an awful lounge lizard with those gold chains, but upon donning reading glasses and squinting at caption, it turned out to be someone else.
The title "First amendment slogans" (used in the link) seems better than the one chosen by LAT. (Who on earth would put "Actually" in a title?)
Ken,
Are you implying that the fighting words exception isn't operative any longer? If so, I am going to celebrate by calling someone a choad (or is it chode?).
*Waits impatiently for post in re: blocking someone on Twitter as a 1A violation*
So, Ken, can someone be prosecuted for falsely shouting "Fire" in a theatre? If so, under what legal argument?
@Chris_Halkides
It's not definitively dead, but people are checking its pulse. Its validity is in some doubt.
I think the fighting words exception is still alive and well when you're talking about someone getting right up in your face and screaming at you. But the original idea of covering insults in general is pretty much dead.
That website sure has some annoying ads, including one that takes up the whole page so you have to maximize the window just so that the part of the ad you need to click on to get rid of it is onscreen.
I never realized your law firm was "Brown White & Osborn LLP".
Have you considered kicking out Osborn and hiring some lawyer named Green?
Pity the LA Times relies on spell check instead of humans:
"Censorship advocates often tell us we need to balance the freedom of speak with the harm that speech does."
Osborn's alter ego has "Green" in his name.
Good article, but annoying web site. If for some reason you had turned on javascript and forgot to turn it off, you get a huge advert blocking the entire piece. You have to turn off javascript and reload.
As for fighting words, well, the original case was a bit of a disgrace. Chaplinsky was arrested for distributing religious literature. On his way to the police station, he said to the fire marshall, who was assisting with the arrest, that he was a "damned racketeer" and "a damned fascist". Since the fire marshall was assisting in the sort of suppression of disapproved communication common at that time in fascist countries with whom we disputed, I have to say that the actual words were less in the nature of provocation and more akin to accurate observation.
None the less, the Supremes, who at least up through the 1950s were embarrassingly shy on First Amendment cases, upheld the conviction. This is the same court that approved convictions in Schenck (1919, anti-draft literature), Abrams (1919, approving conviction & 20 year prison terms for anti-war material), Gitlow (1925, commie manifesto), Whitney (1927, member of commie party), American Communications Assn (1950, commies), Communist Party (1961, commies), Walker (1967, anti-segregation protest).
At best, you get a series of cases where the previous one might not have reached the same result under the announced rule, but the effect is that most of the convictions stand, and remain as embarrassments in the US Reports.
@Argentina Orange
It's not, by itself.
However, when a government official sets up a social media account as a designated or limited public form and then selectively blocks readers/comments it likely is. Ken's written about it before (police departments deleting Facebook comments, for example).
@Ken
What makes you think that about fighting words? Would it be the normalization of many kinds of language such that they are no longer provocative enough? Or the idea that the doctrine just doesn't exist anymore?
Certainly I still see room for things like "I'm going to walk out of this room and put a bullet in the face of your child" as sufficiently provocative to be unprotected and likely to provoke imminent violence, or are you arguing that would just fall into a different category?
So which one is you, the one with the teenage mutant ninja turtle t-shirt or the one with the gold chains, white t-shirt, and white blazer?
Jackson, that is a threat, not fighting words.
@Jackson
Fighting words would be calling someone a bastard (long ago, before the term lost most of its sting) or the major insult-du-jour to their face, which is why many question whether "fighting words" survives as an exception.
Your example would be analyzed to see if it fell into a "true threat" exception, which Ken has written about many times. For instance, if it's hyperbole in context it's not excepted.
In Chaplinsky v. New Hampshire, the actual 'fighting words' were "racketeer" and "fascist."
In 1942, the decision was 9-0.
"Fighting words" is only going to help in one of the southern States that have a law calling it an exception to assault. In those places, it is probably doomed too.
It will continue to be a thing that never existed in civilized States.
In my State, the idea that there is any circumstance where you'd be socially obligated to "fight" that isn't covered under self defense is repugnant to the dignity of the State. A Judge is going to be pretty pissed off and remember your face if you come in asking to say something like that. In fact, the Judge might feel socially obligated to give you a lesson on speech and the appropriate responses!
Probably. Chaplinsky came up from New Hampshire, which is probably too far north of the St. Mary's River to have any possibility of civilization.
So, assuming that Trump is violating 1A by blocking people from @realDonaldTrump…
-Do people blocked from @potus by the previous administration also get reinstated?
-What about people who were blocked by Twitter directly, even if the blocked accounts were primarily used for twitting at either of those handles?
-Do other politicritter's handles fall under this or is this another "Trump is uniquely bad, so he gets special rules?"
-If the other politicritters complain to Twitter, and then twitter bans the offenders, is Twitter acting as an agent of the state?
RE Fighting words it's been my impression that every time the USSC takes a fighting words case they do their best to carve off another usage of the exception. I'd argue unless your name is Chaplinsky and it's 1942 you won't get the exception from the current supreme court.
It takes a long time to whittle away a 9-0 decision like the fighting words exception. It's probably going to limp along for a few more decades before they finally put a nail in it and declare it a non-exemption.
Though I have to admit, I don't fully understand why they haven't done it already, it's a silly exception to begin with and comes out of a court that liked to uphold any kind of incident involving someone from the government acting against people that could be viewed as affiliated to communists or some other disfavored group (like minorities). There are plenty of other precedents from this same court that have been tossed by the wayside a long time ago, it's almost like the current court wants to keep this exception around in case they "need" it. Frankly it should have been tossed a while ago so people will stop calling every incident of censorship or a cop beating someone up for saying something fighting words. It's the free speech "exception" that shouldn't exist.
Wouldn't "testimony given under oath" also fit into this list? Or is that a sub-category of fraud?
I've noticed over the past 5 years or so a rapid clickbait-ification of the headlines even in once-august publications. The Washington Post ran with "Five key things said during James Comey's testimony" last week. (YOU WON'T BELIEVE NUMBER 3!!!!!)
Every headline has to have a "hook" in it now to "engage" the reader's attention, much in the way a fishhook engages a trout's face. It can't simply summarize the article ("Men walk on moon"), it has to tease it ("You won't believe what NASA astronauts did today!") or bury it in a listicle ("10 amazing facts about the moon mission")…
Ken,
Excellent article on the legal questions surrounding free speech,. However, I find that the debate going on today does not actually deal with the legal issues (even though many people falsely frame it that way).
For example, the question of speech on campus is not about the first amendment, but rather an institution's balancing of allowing a space for free speech but also effecting quality control and reducing the kind of harassment that could actually limit the exchange of ideas.
Professors don't have a right to teach creationism. A university could bar a crank from spreading pseudoscience under the imprimatur of their reputation.
Likewise, it may be reasonable to take steps to avoid a racially oppressive atmosphere. That is the real tricky situation, and is not solved by simply pointing to the law.
Argentina Orange, I would be surprised if the previous user of @potus blocked people on twitter.
How's this tweet aging?
https://mobile.twitter.com/Popehat/status/874422925767483392
Good article, Ken. If I have one slight nitpick, it is that sometimes "Not all speech is free" isn't precisely a non sequitur, as it's often the response to something along the lines of "I can say whatever the hell I want, because free speech." Of course, it's not a particularly illuminating rebuttal, so you're probably still right about it being more or less useless.
Also, Gah! at the comments section of the L.A. Times. I always heard that the West Coast had conservatives in low quantity, and liberals in high quantity but of low quality. Judging by the (admittedly statistically insignificant) sample of the comments section, apparently I got things backwards.
Actually, public universities (including Berkeley, where these issues have been at the forefront recently) are the government, and they are constrained by the first amendment. You're right that they don't have to allow a professor to teach creationism, but that's because they're wearing their employer hat, which gives them different responsibilities than their government hat. Government as an employer is a somewhat complex area of law, but I believe, for example, that they wouldn't be able to fire a professor if he expressed creationist views on his own time, though I'm not positive about that.
In any case, they do have to allow creationists to stand on the quad and hand out fliers and tell everyone that they're going to hell. If a student group wants to invite a creationist speaker, the university can not treat him or her differently than other invited speakers. They can control what's said in the classroom, but no, they're not supposed to be able to punish students for their contents of their speech outside the classroom.
Yes, we know that public schools do try to punish students for their speech. Usually when they're taken to court, or threatened with legal action, they lose.
@Danny Sichel
Really? I'd think that @potus would attract the exact type of people who would be deserving of a blocking. I wouldn't be surprised if there was a team of interns assigned to blocking people 24/7.
RE: Argentina Orange
Someone claimed Obama blocked him, but could never prove it.
http://www.theblaze.com/news/2015/09/24/fact-check-did-obama-really-block-a-13-year-old-conservative-critic-on-twitter/
@Mikee:
Did we read the same article? Like the kid said, it's not that he couldn't prove it, it's that the people questioning the truth of his assertions are so beneath his contempt that providing evidence to back his own claims would be a waste of time that would only legitimize the opposition. In other words, this kid invented the Trump defense two years before Trump (and I bet the President isn't even giving the kid any credit for it.)
More seriously, what the hell is it with prominent black conservatives? It's like the GOP has decided to demonstrate that unqualified affirmative action hires are a real problem by hiring as many as they can. I can't think of a single prominent, and capable, black conservative put into a position of power by the GOP since the Bush administration.
(And before anyone complains, I absolutely respect Ben Carson's accomplishments as a physician, but I also think that everything from his campaign to his current performance demonstrates that intelligence and success in one specialized field does not preclude utter incompetence in a different field.)
Even the Democrats have a better track record for promoting black candidates who can actually do their jobs, and that's even accounting for the fact that they've spent decades defending the honesty of Charlie Rangle and the competence of Jesse Jackson.
The Times has you behind a paywall. Too bad. I would never pay for their liberal propaganda.
FWIW I think "free speech" should be limited to people like "us" who are doing it for free. If you are being paid for it, like one of these slimebag reporters from any major press rag, you should be regulated as a business, and you should be forced to stick to a very narrow range of content, starting with NO "un-named" or "anonymous" sources. And you should be required to post your e-mail in the clear.
And not knowing what you said, I will add if someone tries to shut down an individual's free speech by rioting, assault, etc… I think it is entirely reasonable to off the prick. It should only be legal to aim protests at the government – as prescribed in the constitution. If you aim them at a citizen minding their own business and you get shot for it, it's your fault.
@Homer: You, sir, are a living argument for a limited political franchise.