This week’s episode was inspired by a conversation I had with my grad student, Kristy. Through the course of our weekly conversation some really good things came up and I wanted to follow up on some of them here. So, thanks, Kristy, for some provocative conversation!
Today I want to talk about free speech and citizenship. We’ve touched on it before, but we haven’t devoted a whole episode to just that topic before.
Consider this: In any kind of authoritarian government there is no need for free speech. In a monarchy, or dictatorship, or fascist, or any kind of tyrannical government there is no need for the people to have any voice because it is all top down. One guy (and it’s almost always a guy) makes all the decisions and that’s how things are done. The people have no say in anything – so why do they need the permission or ability to speak? There is no need for them to have a voice. But in a government where the people have power, it is absolutely essential for the people to be able to speak, both to each other and to those who rule. The right to speak and the power of the people within the government are directly related. The more powerful the people are to rule themselves the more voice they have in the public sphere to speak to themselves and to those who ostensibly are in charge. Keep this in mind in a few minutes when we talk about what kind of codes are set in place to keep people quiet, and why and how.
What is also true is that, historically, certain groups are policed more than others. The right to free speech was originally granted to citizens, which was white, property-owning men. That legacy has been hard to undo. The speech of women, of People of Color, or of the LGBTQ community has long been policed much more heavily than their normative counterparts. This says a lot about who we consider “citizens” and who has access to power in the public sphere. If speech is a matter of power in terms of public discourse and the state, and historically not everyone has been granted the right to speak, then we can see how this marginalizes and stratifies people.
Speech is a matter of citizenship.
Speech is a weird sort of begging the question kind of situation. If you have the right to speak, then you have power in the public sphere. Having the right to speak indicates you are a citizen. You get power by addressing the government. You can’t address the government without the power to speak. So you must already have to power to speak in order to address the government about any imbalance of power. And so hegemony reproduces itself.
In 1917 Robert La Follette gave a “Senate Speech on Free Speech in War Time.” LaFollette was speaking because he and five other members of the Senate had voted against a declaration of war. As a result they were the recipients of a flood of abuse and invective from newspapers and individuals all over the country that had been clamoring for war.
According the LaFollette, “Prior to the declaration of war, every man who had ventured to oppose our entrance into it has been condemned as a coward or worse,” and they been accused of a variety of crimes up to and including treason. LaFollette described a federal judge in the state of Texas who said in a charge to a grand jury, “If I had a wish, I would wish that you men had a jurisdiction to return bills of indictment against these men. They ought to be tried promptly and fairly, and I believe this court could administer the law fairly; but I have a conviction, as strong as life, that this country should stand them up against an adobe wall tomorrow and give them what they deserve. If any man deserves death, it is a traitor. I wish that I could pay for the ammunition. I would like to attend the execution, and if I were in the firing squad I would not want to be the marksman who had the blank shell.”
LaFollette says if it were just him who were under attack he would not take the Senate’s time. But he cannot let these attacks go because his colleagues have been so unfairly assailed. He says the purpose to those conducting this campaign to throw the country into a state of terror and to coerce public opinion, to stifle criticism, and suppress discussion of the great issues involved in this war. He says everyone must recognize in “that in time of war the citizen must surrender some rights for the common good which he is entitled to enjoy in time of peace.” BUT, “the right to control their own Government according to constitution forms is not one of the rights that the citizens of the country are called upon to surrender in time of war. Rather, in time of war the citizen must be more alert to the preservation of his right to control his Government. He must be most watchful of the encroachment of the military upon the civil power.”
“More than all, the citizen and his representative in Congress in time of war must maintain his right of free speech. More than in times of peace it is necessary that the channels for free public discussion of governmental policies shall be open and unclogged.” He says the most important question in the country is the right of the citizens of the country and their representatives in Congress “to discuss in an orderly way frankly and publicly and without fear, from the platform and through the press, every important phase of this war; its causes, and manner in which it should be conducted, and the terms upon which peace should be made.”
He says he is arguing for “the great fundamental right of the sovereign people of this country to make their voice heard and have that voice heeded upon the great questions arising out of this war, including not only how the war shall be prosecuted but the conditions upon which it may be terminated with a due regard for the rights and the honor of this Nation and the interests of humanity.”
In short, LaFollette is arguing that the most important right, even in a time of crisis, is the right of a person to speak to their government. This important for us to think about now, because while we may not be engaged in a world war we are definitely in a time of crisis.
Imagine being in this situation and not being able to criticize our leaders? Or point out mistakes of the government? Can you imagine silencing scientists and health experts like that? It would be even more of a health crisis that we already have. The ability to speak out and claim your right as a citizen during a time of crisis is essential.
The argument is often made that we need to clamp down of free speech during a crisis for “security.” See the Schenck case and the PATRIOT ACT. But imagine if that were the case now. It would literally be a matter of life and death.
Shortly after LaFollette gave his famous Senate address Charles Schenck and Eugene V. Debs were imprisoned for their speech, as well – separate cases, but similar causes.
According to oyez.org, during World War I, socialists Charles Schenck and Elizabeth Baer distributed leaflets declaring that the draft violated the Thirteenth Amendment prohibition against involuntary servitude. The leaflets urged the public to disobey the draft, but advised only peaceful action. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment. Schenck and Baer were convicted of violating this law and appealed on the grounds that the statute violated the First Amendment.
The Court held that the Espionage Act did not violate the First Amendment and was an appropriate exercise of Congress’ wartime authority. Writing for a unanimous Court, Justice Oliver Wendell Holmes concluded that courts owed greater deference to the government during wartime, even when constitutional rights were at stake. Articulating for the first time the “clear and present danger test,” Holmes concluded that the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent. Holmes reasoned that the widespread dissemination of the leaflets was sufficiently likely to disrupt the conscription process. Famously, he compared the leaflets to falsely shouting “Fire!” in a crowded theatre, which is not permitted under the First Amendment.
Eugene Debs delivered a public speech that incited his audience to interfere with military recruitment during World War I. He was indicted for violating the Espionage Act of 1917 for allegedly attempting to cause insubordination and refusal of duty in the US military. He was also accused of attempted obstruction recruitment and enlistment. This came on the heels of the previously noted Schenck v. US decision which was one of the most important First Amendment cases in history, and began the trajectory of First Amendment understanding and orthodoxy as we know it.
The question was, whether Debs’ conviction under the Espionage Act of 1917 violate his First Amendment rights to freedom of speech?
The Court upheld Debs’s conviction. According to oyez.org, The Court reasoned that Debs’s case was similar to Schenck v. United States, in which the Court had concluded that the arrest of an individual for distributing leaflets encouraging readers to oppose the draft was constitutional. The Court found Debs’s sympathy for individuals convicted of opposing the draft and obstructing recruitment analogous to the situation in Schenck. Thus, his conviction was valid.
This is exactly the kind of situation LaFollette warned against. Debs’ and Schenk were in the minority. The opposed the war and the draft. They were a part of a community that was being assailed continually. And because of this they were not just denied their voice, but arrested and denied the ability to partake in full citizenship. Their ideas were directly linked to whether they could be members of the community. And because their ideas were outside the mainstream they were denied that citizenship.
We see this repeated in the O’Brien case in the ‘60s, as well. David O’Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. The Court decided against O’Brien and established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government’s interest. “We think it clear,” wrote Warren,” that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.”
In other words, though the Court recognized that O’Brien’s conduct was expressive as a protest against the Vietnam War, it considered the law justified by a significant government interest unrelated to the suppression of speech. The O’Brien test has been subsequently used by the Court to analyze whether laws that have the effect of regulating speech, though are ostensibly neutral towards the content of that speech, violate the First Amendment. Here the Court established a test to decide what speech was acceptable and what wasn’t, just as they did in the Schenck case that led to Deb’s conviction. You will notice that the tie that binds these scenarios is that in all of these instances the US found itself in war – and as Lafollette noted, when the US finds itself in a time of crisis, speech can sometimes be very limited. What does this say about citizenship?
And yet we are guaranteed an enormous amount of free speech. Sometimes this means bad people are citizens, too: Let’s talk about Snyder v. Phelps.
Westboro Baptist Church has made a reputation for themselves by staging high profile protests, most notably at soldiers’ funerals but also at the funerals of victims of natural disasters, shootings, and other tragedies, to express their distress over what they perceive as America’s moral decay. Their chief concern is America’s tolerance of Judaism, Catholicism, and homosexuality. Because we, as a nation, have allowed these groups to become visible members of the community and, at least in the case of Catholicism, become equal citizens who do not generally suffer any real ostracization, Westboro feels that America has invited God’s judgment, which he sends in the form of war, terrorism, and domestic attacks, and they welcome him to do so until we, as a nation, change our ways.
On March 10, 2006 Matthew Snyder, who died from non-combat wounds, was buried at a Catholic church in Westminster, MD. A group from Westboro gathered in a public area near the funeral with signs saying “God Hates Fags” “God Hates America,” “Thank God for Dead Soldiers,” and other maxims from their bizarre interpretation of the gospel. The church had notified all public officials of their activities in advance and was in compliance with all official rules and regulations. Luckily, the Snyder family did not see the protest at the time of the funeral, but heard about it later that evening while they watched the evening news. When Snyder’s father DID understand what had happened, he filed suit: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. District Court in favor of Westboro for defamation and publicity given to private life b/c Snyder could not provide enough proof. Trial held on remaining claims. Jury found for Snyder on intentional infliction of emotional distress, intrusion upon seclusion, and conspiracy claims, and held them liable for 2.9 million. Church appealed on a number of reasons, but what eventually brought them to the Supreme Court was First Amendment claim. Through a series of court battles this situation ended up in front of the SCOTUS with the Snyder family claiming that the church owed them for inflicting extreme emotional injury and the church claiming that their speech was protected. The Court ultimately, and to the displeasure of many, ruled in favor of Westboro Baptist Church.
According to the decision, In MD, for a person to prosecute intentional infliction of emotional distress, you have to show that the defendant purposefully or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severely. The problem is that this speech is not about private matters – the topic is a public concern. This wasn’t meant to inflict emotional distress on Snyder specifically and intentionally, it was commentary on a public matter.
We have, as a nation, decided that the 1st Amendment provides that “debate on public issues should be uninhibited, robust, and wide-open.” (New York Times Co. v. Sullivan) “Speech concerning public affairs is more than self-expression; it is the essence of self-government.” (Garrison v Louisiana) So, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and it entitled to special protection.” (Connick v Myers). The “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” (Rankin v. McPherson)
“While these messages may fall short of refined social or political commentary, the issues they highlight….are matters of public import….And even if a few of the signs – such as “You’re Going to Hell” and “God Hates You” – were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.”
Snyder can’t claim this was an attack on his family or his son – because these people have been doing this to lots of people for many years. This wasn’t personal. They’ve been behaving this way well before they’d ever heard of “Matthew Snyder.” The fact that this was at a funeral doesn’t change things. It was public land next to a public street. So, public.
Snyder tried to claim that the folks who were at the funeral were a captive audience, and a captive audience is not something the First Amendment allows. You are allowed to say what you want – you can’t FORCE people to listen. But Snyder himself admits he didn’t know the content of the message until later. There is no indication that this actually interfered with the funeral.
This is without a doubt distasteful and hurtful, and its actual contribution to public discourse may be negligible. But it WAS a public matter and they did NOT break the law.
According to the Court, “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. On the fact before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
The short end is that Westboro has a right to say these things in that manner. They are protected by the First Amendment.
I’ve mentioned Billie Murray before but she does great work on why maybe we SHOULD limit bad speech.
But I’ll ask you to think about something with me for just a minute – think about Colin Kaepernick. He was not silenced by the government. He didn’t suffer state censorship. But can we say his speech was really free?
Kaepernick’s speech was policed brutally, publicly and in blatantly racist ways. There were some who took the “white moderate” approach the MLK describes, saying, “protests is fine, just not here and now,” but plenty of people told him to stand up and shut up because he didn’t deserve to speak. Think about that – he shouldn’t have access to speech in the public sphere – why? Because he’s an athlete? Because he’s black? Because both?
For whatever reason (and I think we could probably guess a few) Kaepernick’s speech was policed to a point of national, public controversy. His ability, or non-ability, to speak became a political issue – a hash tag. A movement. When he was denied the right to speak people recognized it for what it was. A denial of his citizenship. And this time, people weren’t having it.
Free speech isn’t just who gets to be loud and proud. It’s who gets to be a citizen. And historically we have a tendency to silence speech from marginalized communities but protect speech from people like white supremacists or misogynists– all in the name of “free speech.” What does that say about who we consider citizens? What does that say about the fabric of our nation? I think you know what it says. You don’t have to think real hard to realize what kind of kind of narratives we understand as “citizen.” People are out there trying to spin a counternarrative, though. It’s our job to figure out what side of that we are on.
A final note – the election is coming up. It’s in less than a week. Team Kairoticast got out on voted on Monday morning. We got there at 8:55, stood in line in the rain with a few hundred of our closest friends, and were out by 10:20. You can do it. You can make it. Get out there. Find your polling station. Vote like your life depends on it. Because even if it doesn’t, somebody’s does.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first.