Free Speech and the Left

 Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it.

Abraham Lincoln

One of the more refreshing aspects of the fallout in the wake of the Cairo and Benghazi embassy attacks, is the degree that it has brought out in the open the contempt that many people on the political Left have for affording constitutional protection to speech which they despise.  A case in point is Sarah Chayes.  Ms. Chayes is about as establishment Liberal as it is possible to get.  A graduate of Harvard, the offspring of Abram Chayes, and  Antonia Handler Chayes, both luminaries of the academic and political Left, she had a career as a reporter for The Christian Science Monitor and National Public Radio.  Under Obama she was a special assistant to the Chairman of the Joint Chiefs of Staff.  Her credentials and background therefore make her opinion piece in the Los Angeles Times of special interest.  In that opinion piece she argues that the Mohammed video would not be worthy of constititutional protection because it is meant to be purely offensive and intended to provoke a violent reaction.  It therefore constitutes the equivalent of yelling fire in a crowded theater:

While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. “Based on my understanding of the events,” 1st Amendment authority Anthony Lewis said in an interview Thursday, “I think this meets the imminence standard.”

Finally, much 1st Amendment jurisprudence concerns speech explicitly advocating violence, such as calls to resist arrest, or videos explaining bomb-making techniques. But words don’t have to urge people to commit violence in order to be subject to limits, says Lewis. “If the result is violence, and that violence was intended, then it meets the standard.”

Indeed, Justice Holmes’ original example, shouting “fire” in a theater, is not a call to arms. Steve Klein, an outspoken anti-Islamic activist who said he helped with the film, told Al Jazeera television that it was “supposed to be provocative.” The egregiousness of its smears, the apparent deception of cast and crew as to its contents and the deliberate effort to raise its profile in the Arab world a week before 9/11 all suggest intentionality.

The point here is not to excuse the terrible acts perpetrated by committed extremists and others around the world in reaction to the video, or to condone physical violence as a response to words — any kind of words. The point is to emphasize that U.S. law makes a distinction between speech that is simply offensive and speech that is deliberately tailored to put lives and property at immediate risk. Especially in the heightened volatility of today’s Middle East, such provocation is certainly irresponsible — and reveals an ironic alliance of convenience between Christian extremists and the Islamist extremists they claim to hate.

Interesting that she trots out Anthony Lewis to shore up her argument.  Lewis, now 85 and retired, was for decades the uber Liberal’s uber Liberal at the New York Times and regarded as a First Amendment absolutist.  Unless he is now in his dotage, one can only assume that, like many on the Left, his dedication to free speech ends when he disagrees strongly enough with what is being spoken.

The argument that Sayes is making is an old one.  It is called the Heckler’s Veto, and it has been used throughout American history to argue that speech should be suppressed because of the violent reaction it might cause.  Liberals, back when they were truly liberal, use to fight against it.  Lately they have embraced it, most notably in erecting bubble zones around abortion clinic, and banning pro-life protesters from those zones.  In the case of Christopher v. Hill,  530 U.S. 703 (2000), the Supreme Court upheld such zones 6-3.  The scathing dissent of Justice Scalia is instructive:

The Court today concludes that a regulation requiring speakers on the public thoroughfares bordering medical facilities to speak from a distance of eight feet is “not a ’regulation of speech,’ ” but “a regulation of the places where some speech may occur,” ante, at 14; and that a regulation directed to only certain categories of speech (protest, education, and counseling) is not “content-based.” For these reasons, it says, the regulation is immune from the exacting scrutiny we apply to content-based suppression of speech in the public forum. The Court then determines that the regulation survives the less rigorous scrutiny afforded content-neutral time, place, and manner restrictions because it is narrowly tailored to serve a government interest–protection of citizens’ “right to be let alone”–that has explicitly been disclaimed by the State, probably for the reason that, as a basis for suppressing peaceful private expression, it is patently incompatible with the guarantees of the First Amendment.

    None of these remarkable conclusions should come as a surprise. What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the “ad hoc nullification machine” that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice. Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., concurring in judgment in part and dissenting in part). Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong. Because, like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts, I dissent. Continue reading →