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Freedom of Speech

by on February 8, 2021

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 6th 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 6th, 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 6th, 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.

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14 Comments
  1. Dana permalink

    Marco, one of many questions I’d like to ask Donald Trump would be, “What did you actually mean when you said, “Fight like hell?'” That’s clearly a command, and I’m not surprised he lied and didn’t go with them to the Capitol as he promised.

    I think it’s unfair that he hasn’t been thoroughly questioned about his January 6th speech. For five years he’s concocted every excuse imaginable for the barrage of lies and insults he’s both said and written in Tweets, often claiming, “I was only joking,” or “I was being sarcastic.”

    I’m someone who often misses sarcasm, especially if I don’t know the person. This has gotten me into trouble over the years because I have a tendency to interpret literally what people say to me. I actually think it’s a good practice for the most part, although it’s often resulted in being the target of people’s jokes. But when I’m later mocked, my answer now is, “Say what you mean, then.”

    So what did he mean, “Fight like hell?” The election was clearly over, so fighting couldn’t mean fighting by way of voting.

    Why isn’t he being interrogated? There’s no subpoena to appear at his own trial, and he declined an invitation to join the proceedings. It seems he gets away with everything, including dodging questions posed by the press by hiding in the Oval Office or ignoring them as he passed by.

    Very interesting acronyms, by the way. I always enjoy posts that include some of that, although I realize there is much you could never share.

    In all of my classes, you were the only instructor who had guest speakers, and they were always really interesting. And you were the only instructor to tell the class, “Don’t believe a word I say.” By the way, I actually did record some of your lectures for future enjoyment. Sadly, they were on cell phones that stopped working for whatever reason. I really regret failing to export them to an external drive.

    Like

    • Thank you, Dana. Trump’s lawyers have forbidden him to answer questions. They recognize he’s a person who lies about the day of the week and would therefore perjure himself. In any other case I would think he will certainly be convicted. But in this case the (former) Republican Party is in a bind: They convict him and lose their base, or they acquit him and lose the country. It has been interesting to note how many Republican legislators, other officials, and general members of the Party have been leaving in droves to escape the dreadful onus hanging over their heads.

      But, as far as I know, even if he is acquitted there is nothing stopping criminal prosecution and that may be coming.

      Like

      • Dana permalink

        That make sense. I don’t think he knows how to speak without lying. And I do hope criminal prosecution is on the way. After recently completing two years of income tax returns, I realized that I probably paid more in taxes than he did, and I live below the poverty line.

        Like

  2. Mike Stamm permalink

    I only ever had one (junior) college-level instructor admit that he and everything he said would necessarily be biased; this makes me wish I had been able to take some of your courses. It also makes me wonder quite a bit about my childhood; I don’t remember my brothers and I ever being told (as my cousins, on the other hand, almost certainly were) that “children should be seen and not heard,” or that we should “speak only when spoken to”…but to a considerable degree, that’s how things played out. In retrospect I don’t really know why.

    As for Drumpf, I’m not sure if he was merely cunning or just lucky. There is no question that much of what he said over the course of the international embarrassment that passes for his presidency was an almost subliminal call to violent action. After his failed attempt at re-election, there was nothing subliminal about it; his bogus claims that the election was rigged, that it had been stolen, and that his supporters needed to overturn it, to “take their country back,” were explicit exhortations to sedition and violence. In a sane world even the Republican members of the Senate would see his lawyers’ attempts to cast this as simple free speech, devoid of any insurrectionist intent, would be seen as the simpleminded crap that they are. But most of the Republican members of the Senate (and the House, which fortunately does not have a say in the matter at hand) have shown themselves to be craven and spineless on a scale that has no analogues in the rest of the natural world. I hope that the Senate will do the right thing–convict him and punish him, if by no other means than banning him from national office for the rest of his life–but I am not naive enough to think that this is likely.

    It will be interesting, however, to see how his scuttlefish supporters nationwide react if he is acquitted after they see many of his supporters jailed on innumerable charges following the events of January 6th. Communism has been described as “the god that failed”; with any luck, Drumpf will be known to history as “the clod that failed.” Many thanks, always, for making the effort and taking the time to write this.

    Like

    • Thank you, Mike. As I noted in my reply to Dana, the Republicans are in a bind. Just today national polling has 57% of Americans wanting him to be convicted and barred from future office. Apparently many of these are people who voted for him. Of course, the vote was in early November and the egregious and likely criminal rhetoric really picked up only after that.

      Regardless of the Senate political trial, I am hoping the criminal indictments will flow onto him and his family of grifters. The financial penalties alone should drain the fortune they took from the American people.

      Like

  3. Ray Rivers permalink

    Well said Marco – it’s unfortunate you are not the one prosecuting the case against the former president – you’d be even better than what we’ve already seen. Hopefully this trial will help wake up people to the like of those leaders with an autocratic bent…. like Trump. Thanks for writing.

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    • Thank you, Ray. As you know, the crucial point of proof is the “but for” phrase. That is, The insurrection would not have happened BUT FOR the speech(es) of Donald J. Trump. This normally presents difficulties, but hopefully it will be shown in this case.

      Like

  4. jkent33 permalink

    This subject of your new post is currently on the minds of millions of people of both parties. I will set the stage for what I’ve been seeing since Trump announced his plans to seek the highest office in our country. The very first comments of this news were very much alike. Voters all said the same thing. He will make a great president because he is a great businessman. This thought permeated itself among his followers. This was garnered from his recent reality TV show where he was portraited as a genius businessman. All through his terms in office he has become known for his rallies. Thousands of people attended to have him say the same hollow statements. He told funny stories and bragged about himself making them feel good because they wore a hat whose phrase was lifted from Reagan. He repeated the same tales filled with untruths. He never revealed an actual program and agenda his entire time in office but these same people blindly followed. In my personal opinion these followers all suffered from a mental health malaise. They were all swept up in tales regarding how great the economy was going to be because many were all facing unemployment and many were addicted to what is being called “the first pandemic” before Cocid-19. That being addiction to painkillers and other drugs. Trumps ability to charm people of many ilk’s became his stock in trade. This popularity made him the envy of our congress as well. His voice could have been compared to Jesus himself to millions of people. They overlooked his 25K+ lies because he became their “FIX”. It should never be questioned that he purposely led these people to insurrection. At this point in my mind anyone who had been following him is just as guilty as him because they did nothing to stem the flow of lies. Politically to those holding office in the GOP believe he is their touchstone. Like everything is politics this too shall pass. My hopes are based on that enough people will come forward voting to impose the rule of law that will prevent him from ever holding office again and he will be charged with the crimes he committed that were perpetrated by the rioters.

    Like

    • Thank you, Jerry. If I were one of the Impeachment Managers I would ask the “Republicans” these questions: If you are afraid that voting to convict Trump would cost you the votes of people like those who came and attacked the Capitol, ask yourselves why you would want the votes of people like that. If people like that vote for you, what does that make you?

      It must be acknowledged that while thousands came and attacked the Capitol, many thousands more wanted to come but for various reasons could not. Are these the people you would claim to represent? Are these simply the numeric votes you want in your column?

      Several of you have read my latest post, and some have commented. Several of you are watching the impeachment trial playing out on television now. For now it seems a foregone conclusion that the “Republican” Party will vote to acquit.  I am convinced that while many will claim it was an unconstitutional proceeding (that has been thoroughly discredited) the truth is they are at heart the very Neo-Fascists to whom dictators like Trump appeal. One way or another Trump will fade away, but Trump like creatures will resurface again and again until American says NO.

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  5. Since this is being written after Drumpf’s acquittal, there seems to be very little left to say. My first reaction was that they (the senate, or at least a goodly part of them) are cowards. They called no witnesses because they were afraid that they could not then plead ignorance, or worse yet, ignore the facts that were placed before them. They were there when the Capitol was breached by the ignorant masses; could they really have believed that it was a spontaneous action, or that those storming the bastion had planned such an egregious action without the perceived encouragement of “power”? Were the seditious actions taken on his behalf, and with his obvious approval, his intent all along? This thinking person says YES! That said, it was SSDD this week, and the orange buffoon once again got away unpunished for his crimes.

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    • Thank you, Rose. The outcome was never in doubt. The “Republican” Party is made up of craven cowards, closet neo-fascists, and some blend of the two. Most of them placed their own careers ahead of the country, an outright violation of their oath of office. They should be defeated at every level.

      Like

  6. Steve permalink

    There is still plenty of good news for those with no love or sympathy for the Republican Party. By allowing Trump to become the face of the Republicans, they planted a tree that bore incredibly poisonous fruit. Republicans that voted to impeach him will face backlash from people still trying to appease the Trump base and those that did not have all the political ads to look forward to about how they condone they storming of the Capitol. Lose/lose proposition for them.

    Naive/shortsighted or not, I cannot fathom a world where Trump gets a second opportunity at the office. I don’t see his base remaining that strong after the Capitol assault. I’ve heard several of the folks involved sounding disillusioned after it happened in addition to all the more rational people that did and did not vote for him. Again, if more is there than I estimate I can’t see how it does anything but help Democrats get elected in the long run.

    Like

    • Thanks, Steve. I’ve always felt it is a mistake to concentrate too much on Trump when it is obvious he is merely the front man for a cabal of neo-fascists dating all the way back to the FDR era. The January mob was reminiscent of Mussolini’s Black Shirts and Hitler’s Brown Shirts, and served the same purpose. But the old saying about riding the tiger holds: He eats you last.

      Trump is facing an avalanche of civil suits and criminal indictments. Even if he gets no prison time on a criminal charge, I can’t see a convicted criminal (which he likely will be) running for high office.

      Like

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