By GENE HOWINGTON

Recently we’ve seen the topic of politically correct speech as it relates to free speech came up and under the guise of civility. The subject was brought to fore in my mind when I read this: How Free Speech Died on Campus by  Sohrab Ahmari, published on The Wall Street Journal (online.wsj.com). It seems there are a lot of misconceptions about what constitutes free speech, the limitations thereon and the consequences thereof.

The core of the American free speech right and tradition is codified in the 1st Amendment of the U.S. Constitution.

Congress shall make no law [. . . ] abridging the freedom of speech, or of the press[.]“

The U.N. Universal Declaration of Human Rights, Art. 19, states:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

This has implications that apply to public discourse.  Let us consider these implications.

What is free speech?  I think the Universal Declaration gets to the heart of the idea with the words “freedom of opinion and expression”. You are free to think what you like and express your thoughts. The marketplace of ideas – a consequence of freedom of speech – relies upon this. Everyone says what they like and may the best idea/argument win. However, that being said, there are some limitations on free speech that are universally accepted in domestic and international jurisprudence.  Namely the exceptions of defamation (lying about someone for gain and/or profit) and incitement language (encouraging others to violence or panic). Many countries also recognize sedition (calling for the overthrow of government) as unacceptable as well. Consider the difference in these prohibitions and the different ways of addressing the 1st Amendment: the absolutist approach, the categorical approach and the balancing of interests approach.

All three approaches allow for restrictions on free speech. The absolutist approach takes the stance that literally no law prohibiting speech is permissible . . . except when the words are so intimately tied to a specific action like inciting panic or contracting for an illegal purpose as to be inseparable from the otherwise prohibited act itself. The categorical approach attempts to define what speech is or is not protected by assigning categories such as obscenity, fighting words, commercial speech and political speech. The balancing of interests approach in every case courts should weigh the individual’s interest in free expression against a valid governmental interest in restricting the speech in question with a thumb on the scale of justice in favor of free speech. Most modern jurists adopt either the categorical or the balancing approach as the absolutist approach is impractical. Personally, I’m somewhere in between those two analytical schools: circumstances should be considered, but some speech should be categorically protected like political free speech.

Defamation and incitement have sound public policy behind them. In the case of defamation, it arises from the long respected notion in torts that someone should not be able to lie about another to their detriment and/or for the defamer’s benefit. It’s a matter of equity. It has nothing to do with your feelings being hurt. There is a separate tort recognized in some jurisdictions called “Intentional Infliction of Emotional Distress”. It is a very specific, very hard to prove tort where someone says things to or about someone with specific foreknowledge and the intent to cause the hearer or subject to suffer extreme emotional distress. It is a wilful tort and you must prove the speaker had mens rea (guilty mind) in causing the extreme emotional distress.

In the case of incitement, everyone knows the old trope about “yelling fire in a crowded theater”. Inciting panic or violence often ends up with innocent bystanders getting harmed either physically or by having their property destroyed and that is a matter of public safety as well as equity. Sedition, on the other hand, is a “political crime”. In the United States, a particularly odd political crime too considering the express language of the Declaration of Independence.

However, with these above noted exceptions, free speech means anything goes basically.  You are allowed to think and express your thoughts. This carries some broader implications.

As all people are free to express their thoughts and opinions, you are certainly going to hear things you disagree with or disapprove of or maybe even find insulting or offensive. That is simply a cost of the freedom. If you value free speech then you accept that you will be disagreed with, insulted and offended at some time. If you don’t accept this fact, then you value freedom of speech as long as you approve of what others say first and that, by definition, is not free.  If you cannot accept this and try to oppress others simply for having a different, insulting or offensive opinion, then you miss the point of free speech. The antidote for different ideas, just as it is for offense or insult, is more free speech. Make a rebuttal. Offer rejoinder for insult and offense. But everyone gets their say whether you personally like it or not. Respond. Don’t. It’s your choice. However, if you value freedom of speech, you’ll never try to censor. Even if the motive behind your thought is to crush an idea that is deeply offensive and indefensible. Motives don’t matter. Once you cross the line into censorship, you’ve abandoned criticism and counterargument for oppression. You will never beat a bad idea with oppression just like you’ll never stop a good idea with oppression. As the titular character V said in V for Vendetta, “Beneath this mask there is more than flesh. There is an idea, Mr. Creedy – and ideas are bulletproof.” Ideas and arguments are not idea and argument proof though. That’s the whole notion behind the marketplace of ideas. This illustrates why the antidote to bad ideas and bad arguments is precisely more free speech – better ideas, better arguments.

Your feelings are not generally protected by law with the one exception in tort. They are subjective. They are your own reactions and you own them. They may or may not be rational.

This is part and parcel of what is wrong with the idea of politically correct speech. An idea that has crept on to what was once the bastion of free speech – American college campuses. Rather than interpret or summarize How Free Speech Died on Campus by Sohrab Ahmari, I am simply going to direct your attention to it and suggest that you read it in full for a scathing example of “politically correct” speech regulations on college campuses and how it has gone wrong. It’s a short article, but dense and well worth the read, full of examples like;

At Western Michigan University, it is considered harassment to hold a ‘condescending sex-based attitude.’ That just about sums up the line ‘I think of all Harvard men as sissies” (from F. Scott Fitzgerald’s 1920 novel ‘This Side of Paradise’), a quote that was banned at Yale when students put it on a T-shirt.”

and astute observations like;

‘The people who believe that colleges and universities are places where we want less freedom of speech have won, Mr. Lukianoff says. ‘If anything, there should be even greater freedom of speech on college campuses. But now things have been turned around to give campus communities the expectation that if someone’s feelings are hurt by something that is said, the university will protect that person. As soon as you allow something as vague as Big Brother protecting your feelings, anything and everything can be punished.‘” [emphasis added]

Suffice it to say, in an academic environment, there is nothing more detrimental to learning than shutting down the marketplace of ideas because some pinheaded “risk management” administrator thinks someone’s feelings should get hurt by words they themselves are free to challenge. If this trend continues, our colleges and universities will become a global laughing stock.

Free speech must be protected at all costs.  Even if you don’t think it is “civil” or “polite”.  Or even worse, “polite pretending to be civil”.  Some would say free speech is especially important to protect if you don’t think it is polite. It is how we speak truth to power, to others and to ourselves when we are interested in learning truths.  It can make you uncomfortable.  It will challenge you. It will piss you off. It will hurt your feelings.  Freedom isn’t free.  It comes with costs.  These are some of the costs that you pay for freedom of speech.  If you don’t like getting your feelings hurt? If you don’t like being challenged? Develop thicker skin, learn to counter what you don’t like, or be ready to have yet another important freedom eroded, but this time not in the name of (false) security, but the onus of political correctness and catering to the subjective over the objective. James Madison thought freedom of speech (and the press) was critical and the 1st Amendment the most important item in the Bill of Rights.  Maybe you should think about that too.

What do you think?

Think, mind you.  Not feel.  That being said, have at it.

Source(s): WSJ Online, U.S. Constitution, U.N. Universal Declaration of Human Rights

NOTE: The column was originally published at Res Ispa Loquitur (jonathanturley.org) on November 18, 2012.  It has been re-edited for presentation here.