American journalists and pundits rely upon vigorous free speech, but are not reliable supporters of it. They both instruct and reflect their fickle audience.
It’s easy to spot overt calls for censorship from the commentariat. Those have become more common in the wake of both tumultuous events (like the violence questionably attributed to the “Innocence of Muslims” video, or Pamela Geller’s “Draw Muhammad” contest) and mundane ones (like fraternity brothers recorded indulging in racist chants).
But it’s harder to detect the subtle pro-censorship assumptions and rhetorical devices that permeate media coverage of free speech controversies. In discussing our First Amendment rights, the media routinely begs the question — it adopts stock phrases and concepts that presume that censorship is desirable or constitutional, and then tries to pass the result off as neutral analysis. This promotes civic ignorance and empowers deliberate censors.
Fortunately, this ain’t rocket science. Americans can train themselves to detect and question the media’s pro-censorship tropes. I’ve collected some of the most pervasive and familiar ones. This post is designed as a resource, and I’ll add to it as people point out more examples and more tropes.
When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?
Trope One: “Hate Speech”
Example: “hate speech is excluded from protection. dont [sic] just say you love the constitution . . . read it.” CNN Anchor Chris Cuomo, on Twitter, February 6, 2015.
Example: “I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would.” Edward Schumacher-Matos, NPR, February 6, 2015.
In the United States, “hate speech” is an argumentative rhetorical category, not a legal one.
“Hate speech” means many things to many Americans. There’s no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no “hate speech” exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase “hate speech” had a recognized legal definition, it would still not carry legal consequences.
This is not a close or ambiguous question of law.
When the media frames a free speech story as an inquiry into whether something is “hate speech,” it’s asking a question of morals or taste poorly disguised as a question of law. It’s the equivalent of asking “is this speech rude?”
Trope Two: “Like shouting fire in a crowded theater”
Example: ” There is no freedom to shout ‘fire’ in a crowded theater.” Prof. Thane Rosenbaum, Daily Beast, January 30, 2014.
Nearly 100 years ago Justice Oliver Wendell Holmes, Jr., voting to uphold the Espionage Act conviction of a man who wrote and circulated anti-draft pamphlets during World War I, said”[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
That flourish — now usually shortened to “shout fire in a crowded theater” — is the media’s go-to trope to support the proposition that some speech is illegal. But it’s empty rhetoric. I previously explained at length how Holmes said it in the context of the Supreme Court’s strong wartime pro-censorship push and subsequently retreated from it. That history illustrates its insidious nature. Holmes cynically used the phrase as a rhetorical device to justify jailing people for anti-war advocacy, an activity that is now (and was soon thereafter) unquestionably protected by the First Amendment. It’s an old tool, but still useful, versatile enough to be invoked as a generic argument for censorship whenever one is needed. But it’s null-content, because all it says is some speech can be banned — which, as we’ll see in the next trope, is not controversial. The phrase does not advance a discussion of which speech falls outside of the protection of the First Amendment.
Trope Three: “Not all speech is protected”
Example: “Not all speech is protected by the First Amendment.” Ann Coulter, Townhall, August 2, 2001.
Example: “Not all speech is protected if there is hate speech and it is intended to ridicule another religion,” he said. “I don’t believe it is a free speech matter.” Archbishop Paul Coakley, quoted on FoxNews.com, August 8, 2014.
The media routinely prefaces free speech discussions with the bland and inarguable statement “not all speech is protected.” That’s true. In fact it’s not in serious dispute. The problem is that the media routinely invokes this trope to imply that the proposed First Amendment exception it is about to discuss is plausible or constitutional because other exceptions already exist. Not so. Though First Amendment analysis can be complicated at the margins, the core exceptions to First Amendment protection are well-known and well-established. The Supreme Court — in the course of rejecting a proposed new exception — articulated them recently:
“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382-383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)–including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254-255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447-449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)–are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942).
The observation “not all speech is protected” adds nothing to a discussion because it offers no mechanism for determining whether the speech at issue falls into a traditional exception or not.
To see what I mean, consider the utility of equivalent rhetoric. You’ve been bitten by an unfamiliar snake, and you’d like to know if you need treatment.
You: Doctor, was the snake that bit me poisonous?
Doctor: Actually snakes are usually venomous. Though some are both venomous and poisonous.
You: Great. What about this snake here? I caught it in a bag for you to look at.
Doctor: There are both harmless and venomous snakes in North America.
You: Yes, thank you. Which is this?
Doctor: That snake has rings!
You: Yes. Yes it does.
Doctor: Some venomous snakes have rings.
You: Is there anyone else on duty I could see?
Trope Four: “Line between free speech and [questioned expression]”
Example: “Texas Shooting Sheds Light On Murkiness Between Free, Hate Speech.” NPR.com Headline, May 5, 2015.
Example: “Texas attack refocuses attention on fine line between free speech and hate speech.” LA Times Headline, May 4, 2015.
Journalists and pundits talking about free speech disputes love to frame their stories as being about “the line between free speech and X,” where X is the controversial expression in question.
This trope can be invoked accurately when there is a legally meaningful line separating protected speech and the type of speech called out. For instance, “the line between free speech and true threats” isn’t misleading because “true threats” are an actual category of unprotected speech and there’s a line between them and protected speech.
Too often, though, the “line” is invoked to imply a nonexistent legal distinction. The “line between free speech and hate speech” rhetoric from the examples above is misleading and meaningless because, as noted in Trope One, “hate speech” is not a legal thing. “The line between free speech and bullying” — another recently popular line — is another example. It implies, falsely, that there is a legally meaningful category of speech called “bullying” that lies outside of First Amendment protections. In fact there isn’t — there are traditional exceptions to free speech (true threats, for instance) and some of that conduct could sometimes be described as “bullying,” but that’s not the same thing.
“The line between free speech and X” is often the rhetorical equivalent to “the line between vegetables and rutabagas”: the author doesn’t have a coherent argument that rutabagas aren’t vegetables, but doesn’t like rutabagas and thinks you shouldn’t either.
Trope Five: “Balancing free speech and [social value]”
Example: “The incident raised heated questions about race relations — and how to balance free speech with protection from discrimination and harassment.” Washington Post, March 3, 2015.
The media’s love of “balancing” stories is a variation on its love of “line between” stories, only more misleading.
“Balancing,” when used as a colloquial description of how courts decide whether speech is protected, is almost always wrong. American courts don’t weigh the value of speech against the harm it does. When speech falls into an established exception to the First Amendment, as discussed above, no balancing is necessary; it can be restricted. When it doesn’t, balancing of its “value” against other interests is almost always prohibited. As the Supreme Court recently said in rejecting the government’s request to create new categories of unprotected speech through balancing:
The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).
Courts occasionally engage in something that faintly resembles “balancing” when they apply different levels of scrutiny to speech restrictions. For instance, the Supreme Court said that Congress could prohibit the burning of draft cards because the government had a substantial interest in the draft system and the law was narrowly addressed to that legitimate interest, and aimed only at the non-communicative element of the conduct (destroying the card) and not the communicative aspect (doing so to protest the draft). But that analysis doesn’t purport to assign a value to the speech. It considers only whether the government has a sufficiently compelling interest in its goal. Moreover, there’s very good reason to doubt that the Supreme Court would ever approve a speech restriction that is content-based — that is, premised on dislike of the speech — no matter how strong the government’s interest. The Court has repeatedly rejected calls to do just that, and a focus on the content of disfavored speech (when it’s not within an established exception) is almost certainly fatal to the proposed restriction.
Trope Six: “This isn’t free speech, it’s [category]”
Example: “It’s not free speech. It’s bullying and intimidation. It’s a horror show.” Mary Elizabeth Williams, Salon, February 17, 2015.
The First Amendment is, in a way, categorical: there are well-defined categories of speech that are not protected, as I discussed above. But media commentators often abuse categorical thinking by inventing new categories of speech outside the First Amendment. “This isn’t free speech, it’s hate speech.” “This isn’t free speech, it’s discrimination.”
The trope can be used correctly — “this isn’t free speech, it’s an unprotected death threat.” But usually it’s not. Usually it’s invoked as shorthand for “I don’t want to address First Amendment analysis so I’m just going to say in conclusory fashion that it doesn’t apply at all.”
Our response to the trope should always be the same — does this supported not-speech category exist, and is it one that’s actually outside the First Amendment?
Trope Seven: “Fighting words”
Example: “There are two exceptions from the constitutional right to free speech – defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte.” McClatchy.com, May 4, 2015.
No discussion of controversial speech is complete without some idiot suggesting that it may be “fighting words.”
In 1942 the Supreme Court held that the government could prohibit “fighting words” — “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The Supreme Court has been retreating from that pronouncement ever since. If the “fighting words” doctrine survives — that’s in serious doubt — it’s limited to face-to-face insults likely to provoke a reasonable person to violent retaliation. The Supreme Court has rejected every opportunity to use the doctrine to support restrictions on speech. The “which by their very utterance inflict injury” language the Supreme Court dropped in passing finds no support whatsoever in modern law — the only remaining focus is on whether the speech will provoke immediate face-to-face violence.
That’s almost always irrelevant to the sort of speech at issue when the media invokes the trope.
Trope Eight: “[Professor] explained . . . .”
Example: “The exhibit of cartoons in Texas might have crossed the line, [Professor] Szmer said.”
The media loves to quote a professor to support a viewpoint. This is intellectually neutral: it can be good or bad, depending on the honesty and qualifications of the professor selected.
Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say “it will fall, because of gravity.” There is a relatively low chance that the professor will tell you “well, maybe nothing will happen” because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors’ views on how a court is likely to rule on an issue are untainted by exposure to actual courts.
Many professors will give you a sober, accurate and well-informed assessment of how a court would likely approach a given free speech situation. The trick is separating those professors from ones who are out of their field or mere advocates.
Trope Nine: “This speech may be protected for now, but the law is always changing.”
Example: “‘The way we interpret the constitution is always changing. The supreme court can change the rules, and does do so,’ he said.” The Guardian, quoting Eric Posner, May 6, 2015.
When existing American law clearly protects questioned speech, the media sometimes resorts to finding someone to say “the law can change, and maybe it should.”
Yes, American law can change. Constitutional interpretation can change in breathtaking ways inside a generation.
But the United States Supreme Court has been more consistently protective of free speech than of any other right, especially in the face of media sensibilities about “harmful” words. Fred Phelps and the Westboro Baptist Church are universally reviled and held up as an example of the worst sort of speech; the Court found their speech protected by a margin of 8-1. The Court struck down an overbroad law prohibiting “crush videos” of animals being killed by the same margin. There is no sign of any movement towards the proposition that speech may be restricted because it is hurtful or disfavored — the sort of speech that provokes this banal media observation that law changes.
Pointers to more tropes are always welcomed, as are particularly good examples.