Monday, July 28, 2014

Freedom of Speech

The 1st amendment’s guarantee of freedom of speech is a pretty simple affair to anyone who has not thought about it too deeply.  “I can say what I want to and too bad if you don’t like it; you can’t stop me, ‘cause it’s a free country.” That pretty much sums it up.  To a 1st amendment scholar or to any lawyer or to a legal mind, it is not quite that simple.  “I can say anything I want to except for the following: 1) I can’t slander or libel anyone and get away with it (both of these require the statement of an untruth, malice, and damage to a person or his reputation or his financial security).  2) I can’t yell fire in a crowded theater, thereby provoking an unnecessary panic with possible consequent damage to persons or property.  And 3) I can’t be obscene, whatever that means ('but I know it when I see it').”  That’s what freedom of speech means to a person familiar with how the law works.

But things have gotten interesting lately.  The already infamous Supreme Court decision Citizens United v. Federal Election Commission has introduced another wrinkle in the fabric of just exactly what speech is protected by the Constitution.  Now corporations are persons whose free speech rights are protected by the Constitution and, as it may cost money to place a political ad on a network TV station, now money is protected as speech without limit too.  And a lot of people are upset with this decision, without knowing really how to get around the issues of just exactly what speech is really FREE and protected.

So, this essay is my 2c worth.

Even those who believe as my thoughtless person believes will, I believe, go along with me as I attempt to limit free speech without doing it any damage at all.

Limit #0 (because this is not a new limit): Freedom of speech does not include your right to speak in my privately held forum.  You may write all the letters to the editor you want; my newspaper may reject them all.  You may speak in my private auditorium  only if we can agree on terms.

Limit #1: Freedom of speech does NOT include your right to force anyone to listen to your speech.  You may say what you want but I do not have to listen.  While I am sure that you want people to listen to what you have to say, I think that you will agree that you can’t legally or properly compel me to listen, without damaging MY freedom.

Limit#2: Freedom of speech cannot include your ability to monopolize speech; yours cannot be the only voice in town.  If all the TV and radio stations in your town are owned by one owner  you  the law may compel you to provide access to alternate points of view for free on your stations.  Free speech MUST allow alternate points of view or it is no more free than the unlamented Soviet Union.

The notion of free speech necessarily involves a medium for expression.  Book, movie, TV show, etc.  And it seems to me that no progress can be made sorting out the proprieties of free speech without considering the medium involved.

The most basic medium for speech is a soapbox in a public park.  Limit #1 says that while I may commandeer an unused soapbox and say what I please, I cannot commandeer an audience; whoever wants to listen may listen, or not.  Limit #2 says that I cannot use a megaphone or amplification system that will force everyone in the park to hear me.  Limit #2 says I cannot have my associates commandeer all the soapboxes in the park and keep others from having their say.

So, what kinds of media have the potential to compel an unwilling person to listen?  And what kinds of media have the potential to become a monopoly voice?

In an attempt to be thorough, I created a list of all media* and began to score them one at a time on their capacity to compel or to monopolize.  I thought it would yield clear conclusions about what media can compel or monopolize; it did not.  For example, a book cannot compel because no one can force you to read that book (except a boss or a teacher, who may indeed have the right to compel you).  A book cannot monopolize because surely there are other books to read (unless you live in a one library town, with no bookstores and the library owner has his own ideas what should be read).  So, not so simple.

But, here is what I find clear.  The Citizens United video was a pay-to-view video.  Obviously no compulsion, obviously no monopoly, therefore restrictions are unnecessary.  OTOH (on the other hand), it makes some sense to restrict any and all media from last-minute speech right before an election.  Why?  Because anything can be said without consideration for the truth and there is not enough time for a rebuttal to be mounted and heard.  So, free speech until 3 or 5 days before an election.  Then a zone of blessed silence until the polls close.  Enforceable?  Perhaps not.

The other thing I find clear is that TV spot-advertising is the best candidate for speech that ought to be limited.  The typical TV viewer will not turn the station at commercial time, unless it is clear that it will be a LONG commercial.  This is compulsion, SOFT compulsion yes, but compulsion nonetheless.  And a political candidate with lots more money can monopolize the air waves at commercial break time, just like buying up all the soap boxes, inherently NOT freedom of speech (except for the person who can afford the speech!)

So, what do we have?  We have freedom of speech that is already limited by slander and libel, by crying fire etc, and by obscenity, ought also to be limited if it compels a listener to listen or if it can monopolize what is spoken.

Thanks for listening to me talk about limiting our sacred and unalienable right of freedom of speech.

* That list contains: Books, newspapers, magazines, pamphlets, brochures, flyers, advertising circulars, TV, radio, movies, Internet, CDs, DVDs, public spaces (parks), private spaces (auditoria, theaters).  It would seem that the Internet, that freest of media, might not ever be able to compel or monopolize, until you remember that stupid pop-up that appeared unbidden in front of your face on a web-page that you chose to visit having no idea how disruptive an experience that pop-up could be.