The First Amendment: A Primer on Free Speech

Lady Justice at the Supreme Court

Last week, a few readers took issue with whether or not Joe Rogan's show is a freedom of speech issue. I heard from both sides. It's probably worth a closer look at the First Amendment: 

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.

The establishment clause alone can fill libraries. Peaceful assembly is another catchall phrase that cannot be easily defined. But today, I am only interested in the one in the middle: freedom of speech. The Founding Fathers weren't terribly specific about what constitutes freedom of speech.In the American Bar Association's Human Rights Magazine (October 2018,) Stephen Wermiel cites Nadine Strossen in his article, The Ongoing Challenge to Define Free Speech, suggesting there is a somewhat nuanced difference:

American Civil Liberties Union national president Nadine Strossen notes in her article, there has long been a dichotomy in public opinion about free speech. Surveys traditionally show that the American people have strong support for free speech in general, but that number decreases when the poll focuses on particular forms of controversial speech.

That is where the metaphorical rubber meets the road, folks.

[Note to my gentle readers: For the purposes of today's episode, I am using Cornell University's Legal Information Institute  (heretofore CULIL) page on the First Amendment for basic legal definitions. ] 

How does one decide what is controversial and possibly unprotected speech versus freedom of speech as protected in the First Amendment? Over the last couple o'hundred years, SCOTUS has heard lots of freedom of expression cases. But it's safe to say that over time, there has been a standard set for what cases can go up the food chain. 

One also has to be aware that while community standards do evolve over time, the courts must also weigh those changes in considering which cases will be heard. The best example I can present is in the idea of obscenity. What was shocking in 1822 was clearly different by 1922...just look at women's hemlines....versus what is shocking in 2022. There is no way to uphold a century old standard! But the courts are faced with that consideration:

Currently, obscenity is evaluated by federal and state courts alike using a tripartite standard established by Miller v. California. The Miller test for obscenity includes the following criteria: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value. (CULIL)

That contemporary community standard has changed exponentially with the advent of the internet and instant news. Surely that which is an acceptable community standard in New York or LA might not be acceptable in Des Moines or Jackson. Does the court have to take into account regional proclivities? Yes and no; they have to be "culturally" aware and understand the circumstances in which the potential violation occurs. Which means that the standard, whatever it is, is actually rather fluid. 

The CULIL states:

The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. Generally, a person cannot be held liable, either criminally or civilly for anything written or spoken about a person or topic, so long as it is truthful or based on an honest opinion and such statements. A less stringent test is applied for content-neutral legislation. 

The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more on unprotected and less protected categories of speech see advocacy of illegal action, fighting words, commercial speech and obscenity. The right to free speech includes other mediums of expression that communicate a message. The level of protection speech receives also depends on the forum in which it takes place.    

So where does hate speech fall, or, more importantly, what constitutes hate speech?

In their position paper on Freedom of Speech, the ACLU points out 

If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one's liberty will be secure. In that sense, all First Amendment rights are "indivisible." 

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is "the best protection we have against any Nazi-type regime in this country."

In these cases, the parameters do not include unprotected speech. Congressional Research Services lists those categories as specifically: 

• 1 Incitement. 1.1 Incitement to suicide.
• 2 False statements of fact.
• 3 Counterfeit currency.
• 4 Obscenity.
• 5 Child pornography.
• 6 Fighting words.
• There are two other categories that are not protected: 
• Speech Threatening the President
• Speech owned by others

Hate speech only becomes unprotected speech if/when it directly incites criminal activity or consists of specific threats of violence targeted against a person or group. (from the ALA website.)

So the issue with Joe Rogan is not if he is protected by the First Amendment...clearly he is...but whether or not a non-governmental company like Spotify should be broadcasting his podcasts. This probably has more to do with what his contract says than what individuals want. Sure, Spotify can terminate a contract, pay out the penalty, and move on, but what message does that ultimately send to listeners/subscribers? 

If you read my stuff regularly, you already know I'm all about the messages we telegraph to the casual observer.

Well, the only way you get to express an opinion is to cancel a subscription and refuse to patronize their site, much the same way artists are voting with their feet.  Let management know. Publish something on that dreaded platform called social media. Rant on Reddit. Post terrible reviews on Yelp or FaceBook. Do whatever it is you do this week to display your displeasure. If enough people do that, they have to listen. Same thing goes for artists pulling catalogs. Enough of them do, it's a movement. 

For the record, I suspect the real artistic issue with Spotify is neither Joe Rogan's COVID nonsense nor his use of the N*word; it's all about royalties and fair payment/licensing for music. But that's a totally separate issue.

My belief remains firm that unless speech meets the "litmus" test of unprotected speech, he gets to say what he wants. IF, as in the case of the COVID advice, he's promulgating dangerous habits, shut him down. But if he's asking guests on his program to explain their positions and advice, then it stays, preferably with a disclaimer.  As horrid as it is, his use of the N*word might be abhorrent, it remains protected speech. IF he is as contrite as he says, and IF he changes those language patterns, then doesn't he get a chance to redeem himself? I mean, isn't that what the critics want? Admission, repentance, and improved action going forward? IF he screws up again, yank 'em. 

I saw a meme about book banning that really made me stop to think not just about books, but speech and press as well. The last line said something to the effect that people who ban books are never remembered in history as the good guys. 

We know this to be very, very true. 

The Wifely Person's Tip o'the week

If you save the cards your Valentine gives you,

take a moment to read them together. 

I really, really miss that annual activity.