Debunking the Myth of “Free Speech”

Thanks to a huge and well-organized police presence, as well as strict limits imposed on the participants, follow-up to the “Unite the Right” white supremacist event in Charlottesville, the “Boston Free Speech” rally on Saturday demonstrated that the community wasn’t about to cut extreme right wing agitators much slack:

“We probably had 40,000 people out here standing tall against hatred and bigotry in our city, and that’s a good feeling,” [Boston Police] Commissioner [William] Evans said.

The permit covered only 100 people. The city prohibited anyone carrying weapons, bats or other potential bludgeons, such as sticks to carry posters, glass containers and cans, sharp objects, and shields from coming to Boston Common. There were some small scale skirmishes and the police arrested 33, mainly for disorderly conduct.

The far right participants did not get to finish their agenda. The event broke up early as, per the Wall Street Journal, “a huge throng of counterprotesters approached Boston Common.”

Some will contend, as the organizers of the event have, that their “free speech right” was violated. Does this claim stand up to scrutiny?

Contrary to popular mythology, the right to speak has always had limits in the US. In fact, we live in what amounts to a free speech Wild West compared to what existed in my childhood, and this isn’t due just to the Citizens United decision.

Consider broadcast television, which was a vastly more important political force in the 1960s and 1970s than now. The three major networks, along with the two national news magazines, Time and Newsweek, shaped mass culture. And they all stayed tightly within a relatively narrow spectrum of civic views and social norms.

Broadcast spectrum has always been explicitly recognized to be a commons, yet it has never been a “free speech” zone. From Michael O’Malley, Associate Professor of History and Art History, George Mason University:

Like radio broadcasters, television broadcasters operated under the authority of the FCC, the Federal Communications Commission. The FCC was established by Franklin Roosevelt with the assumption that the airwaves, the broadcast “bandwidth,” belonged to the people, much in the same way as, for example, federal forest land belongs to the people. Broadcasters applied for a license to use a section of that public property, a specific frequency.

Formal and informal censorship of television was extensive. By happenstance, I once met Dan Rowan of Rowan’s and Martin’s Laugh-In, which ran from 1968 to 1973. He described some of their regular fights with censors. I wish I recalled the details (this was over 30 years ago) but the impression I had was that Laugh-In was seen as being close enough to being transgressive that every show was reviewed before airing. Histories of censorship of television make clear that most of it was done by the broadcasters themselves, some of it presumably based on an understanding of what the FCC would tolerate, but also based on the advertisers’ view of what the mass audience and mass values were.

But what about “free speech” in the context of the Boston right-wing rally? Let us turn over the mike to Neil W, who weighed in via e-mail:

Charlottesville was not an exercise in free speech. There’s no such thing as free speech. Seriously. It’s a myth. An absolute tolerance for speech is neither defined in our Constitution nor our jurisprudence. There’s protected speech. And there’s speech that is not protected. Look at the list of types of speech defined in law as not being protected.

•Obscenity

•Fighting words

•Defamation (including libel and slander)

•Child pornography

•Perjury

•Blackmail

•Incitement to imminent lawless action

•True threats

•Solicitations to commit crimes

•Treason

•Plagiarism

Do you see the commonality in there? It’s harm. Speech that is not protected by law ultimately creates or perpetuates harm. Hate speech creates harm. Stanley Fish, discussing a Jeremy Waldron thesis:

“The very point of hate speech, [Waldron] says, “is to negate the implicit assurance that a society offers to the members of vulnerable groups — that they are accepted … as a matter of course, along with everyone else.” Purveyors of hate “aim to undermine this assurance, call it in question, and taint it with visible expressions of hatred, exclusion and contempt.”  What the Vice video, and most of the other Charlottesville coverage, shows is an exercise in hate speech.

Hate speech creates harm that is arguably more egregious than any related to the types of speech in the above list. And yet, our political mythology demands that hate speech be tolerated regardless of the obvious and well documented harm it causes because there is some mysterious greater harm awaiting us should we act to extend to all of our citizens the implicit assurance incorporated into our Constitution and protections from harm found in our jurisprudence. Other countries have hate speech laws. The United States is long past due.

We don’t know what might have been said at the Boston event, particularly since the roster of speakers was changing up to right before the event. But we have clues.

Even though one of the six organizers, John Medlar, said he was a libertarian and denounced hate groups, at a minimum, scheduling this event as a follow-up to Charlottesville wasn’t consistent with that branding. Even the people planning protests on a clearly unrelated issue, the firing of Google’s James Damore, postponed demonstrations that were also originally set for this weekend to distance them from Charlottesville.

And it looks like the “Boston Free Speech” leaders, whether intentionally or not, were trying to have it both ways. From Boston.com last week:

John Medlar, who says he is an organizer for Boston Free Speech, the group behind the rally, told Boston.com that his group is not associated with the white supremacists who marched with tiki torches in Charlottesville last weekend. But the group has said in comments on a Facebook post that there would be “overlap” in attendance between the two rallies….

Boston Free Speech posted an updated list Friday of the rally’s speakers, which includes Joe Biggs, who worked until recently for Infowars, the website founded by conspiracy theorist Alex Jones; and Kyle Chapman, known on the internet as “Based Stickman” and founder of the Fraternal Order of Alt-Knights, which is described by the Southern Poverty Law Center as a “new Alt-Right group of street fighters.”…

Some speakers initially billed for the rally, such as Gavin McInnes, a former Vice Media co-founder and founder of the Proud Boys, a far-right group, dropped out following a Monday press conference by Boston officials condemning the event.

As Micheal Olenick pointed out, both France and Germany have laws against hate speech, yet they are not stymied robust political debate, nor the rise of far-right candidates like Marine Le Pen. Although US exceptionalism means we are loath to look overseas and crib from successful policies implemented elsewhere, the time is overdue for us to catch up here. City officials implemented an anti-hate-speech standard in Boston in a clumsy manner. We might as well do it right.

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