Freedom of Speech

Freedom of Speech

by Marco M. Pardi

“You have not converted a man because you have silenced him.” John Morley. 1877. On Compromise.

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Sooner or later all American school children learn of the Bill of Rights and the First Amendment to the Constitution: 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 the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Of course, there’s more packed in there than just freedom of speech. But I’ve always found it amusing that children learn of it at an age when they cannot fully benefit from it. I don’t know about you, but I was raised in a household which actually practiced, “Children are to be seen and not heard.” and “You will not speak unless spoken to.”

Military and college preparatory boarding schools weren’t much better, but the real surprise came in the actual military: After completing the oath to uphold, protect and defend the Constitution of the United States we were informed the Constitution largely no longer applied to us; we were now under the Uniform Code of Military Justice. Later, those few of us being awarded ultra security clearances were schooled in the fine print of how speaking freely could bring us a room of our own and three meals a day, for many years to come. Even speaking of unclassified matters could bring us such rewards if our speech was deemed “insubordination”. Great. As I later told the officers who selected me for Student Flight Commander, I didn’t sign up to make friends so I didn’t mind not socializing much. But later, teaching first at a university and then at several colleges, I learned of “Academic Freedom”. The faculty handbooks stated basically that we had the freedom to openly discuss ideas without the implication that discussion automatically meant advocacy. Of course, until I achieved tenure I considered class discussions, especially in my field, to be potential minefields. And, while principles were fine on paper, there was no guarantee that students (and their families) would recognize and honor them. It didn’t take long for that to be put to the test. One college vice president told me about the phone calls to the college and said, “If these calls weren’t coming I would think you were not doing your job.”

Yet, there were cases elsewhere brought before the courts. In Texas v. Johnson. 1989 Justice Brennan ruled, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Still, as I’ve mentioned in earlier posts, I quickly adopted the habit of encouraging students to tape record my classes. I told them, “I would much rather you have what I said than what you think I said.”

Very early in our understanding of freedom of speech we learned there were exceptions. Yelling “Fire!” in a crowded theater was a commonly cited exception. “Incitement to riot” was another. But then, there were the murkier areas such as slander and libel. Now we are witness to a bloom of cases stemming from the tenure of the last American presidential administration and the fact that frankly dishonest spokespersons for that administration, which was unable to hold on to power, are having to answer for the lies they continuously told in order to do so. Multi-billion dollar lawsuits are now in process against media “news” organizations and individual persons for very real slander and libel with very provable damages. I wholeheartedly endorse those lawsuits. As I also wholeheartedly endorse the record second impeachment of the person who was in the Oval Office these past four years.

Perhaps the most visible case now under consideration is the second Impeachment Trial of former president Donald J. Trump on charges that he incited the deadly insurrection on the American Capitol on January 6^th 2021.

Also emerging are charges of sedition, a term most commonly associated with the American Civil War. These charges go to the heart of the American quandary of free speech, liberty, and national solidarity and in their history they considerably precede the Civil War. For example, the Alien and Sedition Acts of the late 1700s.

The Sedition Act of 1918 was centered on the question of whether speech could endanger or harm the United States, thus requiring, and enabling the federal government to act to curtail it. Schenck v. United States, a pivotal case during WWI, enabled Justice Oliver Wendell Holmes to establish the legal precedent by which free speech could be adjudicated. Referring to speeches against the military draft, Holmes developed the phrase clear and present danger into the legal lexicon. Indeed, the later case Brandenburg v. Ohio, cited exactly that phrase in its determination that speech could “provoke imminent lawless action”. It certainly seems to me that latter phrase captures the merits of Trump’s speech on January 6^th, and many of those well before. On close examination we see that the cases include consideration of more than just what was said, but also how it was said. Given that the Senate jury appears almost completely split along Party lines, the televised discussions should still be enlightening.

But these national cases, ultimately important as they certainly are, tend to obscure developments happening on college and university campuses. Conservatives have voiced valid concerns that faculties are curtailing dissenting views in their classrooms. We increasingly read of potential speakers being turned away, particularly after student, and often faculty protest. It should be noted here that while non-attendance in class may properly affect outcomes for the student, non-attendance at university wide speeches usually does not. In the latter case, students can “vote with their feet”.

Any reasonably competent professor can read about an issue or a movement and deliver a lecture on what he or she found. But that’s always vulnerable to students rightly wondering if what they are told is merely an interpretation. So, throughout my teaching years I invited a variety of speakers into my classes, but only after telling the classes that attendance was not mandatory. Included were representatives from Cesar Chavez’ United Farm Workers; the United Klans of America; the Maharishi Mahesh Yogi’s Transcendental Meditation Society; funeral homes; physicians and other medical personnel; an internationally famous Medium; an attorney; and clerics from the main Western and Eastern religious traditions.

I can tell you that after some of these speakers I did hear about college switchboards overloading with calls to everyone from the college President down to the janitorial staff. In later years it was websites overloading. But I persevered in my position that I should not be the sole provider of information when there are competent and more knowledgeable sources right within reach.

But at the heart of this issue is something I think I don’t understand. I’ve spent my entire working life in fields requiring that I get people to talk. The untrained person seems to have no idea of the volumes of information which pour forth in just “casual conversation”. In those settings silence is often as loud as shouts. But that’s true only when you allow those settings to occur. Denying those settings altogether is depriving the self of the wealth information the other person may be willing to provide, or trying unsuccessfully conceal.

Of course, there is more to someone’s speech than just their words. Intelligence Operations Officers learn several helpful acronyms. SDLR – Something Doesn’t Look Right; and, SDSR – Something Doesn’t Sound Right are two. So, if one is listening to a shabbily dressed man passing himself off as an uneducated, itinerant peddler in the foothills of the Atlas Mountains in Morocco and hears him speaking Fusha it’s an SDSR moment. The Fushia dialect is Classical Arabic, spoken by those with significant education and, very likely, a cosmopolitan upbringing. Hearing this spoken in that context would be like hearing a customer in dirty jeans speaking Shakespearean English in a Seed & Feed store in Marjorie Taylor Greene’s northwest Georgia district. SDSR.

In a way, dialectical speech brings us back to those earlier citations of shouting “fire” in a crowded theater, and incitement to riot. As you read this the second impeachment trial of former president Donald J. Trump is beginning. For the first trial the Republicans, in control of the Senate (the de facto jury), prevented witnesses from testifying. In this trial calling witnesses not be necessary. Everyone in the world with access to broadcast news saw and heard Trump tell an assembled crowd how the lawful and proper election was rigged and stolen from him, and going on to shout “…if you don’t fight like hell you won’t have a country anymore!” He then instructed them to go to the Capitol, assuring them he would be with them.

Shouting Fire in a theater is a declaration that a threat to life is present and imminent. Such a declaration is a call to action, without conditioners such as Walk, don’t run, Use the emergency exits, Do not push. It’s a call to do Whatever is necessary, heedless of the consequences.

My question here is whether the exhortation Trump issued was a declaration that a threat to life (the dishonest take-over of the government) was present and imminent and a call to action – in this case with a conditioner: Fight like hell, heedless of the consequences.

In sum, my position is that Trump’s speeches, particularly on January 6^th, constituted Incitement to riot, and are therefore not protected under the Free Speech provisions of the First Amendment. Five deaths ensued, with a sixth related. Extensive damage was done to the Capitol building and confidential materials were copied or stolen from offices. Legislators and staff were put in fear of their lives. And America’s world image as a successful democracy which practices peaceful transition of power was irreparably damaged.

Impeachment is a political event. As such it does little or nothing material to a non-politician such as Trump. Causing a riot, indeed an insurgency resulting in death and damages, is a criminal offense and should be prosecuted as such.