ACLU’s ‘Free Speech’ forum

The panelists were Temple law professor Burton Caine, an ACLU activist and past chapter president who has spent his lifetime on the front lines of the First Amendment; Vernon Francis, whose varied legal career has included service in the investigation of the Iran/Contra affair; and Emily Bazelon, a New York Times Magazine staff writer and Yale Law School fellow. All noted that the U.S. provides a uniquely broad guarantee of free speech, a model open to the world since the adoption of our Bill of Rights in 1791 but at best imperfectly copied. In England, free speech is curbed by stringent libel laws; in Germany, a comedian is currently under prosecution for a sketch that offended Turkey’s tyrant-cum-president, Recep Tayyip Erdogan. So before saying that things are bad here — and they are — it’s only fair to acknowledge that they’re worse elsewhere.

The problem with free speech is that almost everyone has a reason for curbing it. The most obvious manifestation is the unanimous rejection of the N-word in polite society, although African-Americans bandy it freely among themselves. Professor Caine, who is a First Amendment fundamentalist, used it in discussing hate speech — a term that, as he pointed out, has never been defined legally and therefore lacks any standing. The reason hate speech has never been defined, he noted, is that the Constitution itself admits no qualification of free speech: It simply says, tout court, that Congress shall make no law abridging it. Nor was this a slip of the pen; as Caine also observed, the right of assembly, likewise guaranteed in the Bill of Rights, is limited to peaceful assembly; there is no right to constitute a mob bent on mayhem and violence.

Online bullying

Of course, an assembled gathering must act or be purposed to act in some violent manner in order to be considered unprotected by the Constitution; mere unruliness doesn’t suffice. In practice, the police decide what crosses the line, which leaves me frankly uncomfortable: I have been in numerous protest situations where the police have broken up peaceful assemblies or used provocateurs to justify wielding batons. Any Philadelphian who has taken to the streets can add his or her own story.

The difference between assembly and speech (and, of course, they necessarily go together) is that spoken words, however provocative, can always be answered by counter-speech, whereas other forms of action may require physical response. The ACLU’s forum was entitled, “Fighting Words: Free Speech in the 21st Century” — and “fighting words,” like “hate speech,” is a notional category that lacks any Constitutional recognition. Speech is speech, and, although we have libel laws, it is necessary to prove injury based on false allegations to demonstrate libel. Ridiculing a foreign despot doesn’t qualify.

Emily Bazelon is the author of Sticks and Stones, a book about bullying, but the conversation didn’t get around to her topic except for a brief discussion of online hectoring and the associated question of anonymous speech. Bullying — especially online, where the actors are physically separated and where it only takes the form of speech — is a particularly problematic issue. By definition, no one likes it, and it can produce very serious consequences. On the other hand, it’s easy to see how repressing online bullying can lead to very intrusive forms of censorship that could stifle free speech at an early age.

Our debt to Trump

For some unexplained reason, audience questions had to be written on cards (which kept the questioners themselves anonymous — ridiculous at a forum on free speech). I know that not all the cards were responded to, because mine wasn’t, so I will pose my question here:

In the context of what Herbert Marcuse called repressive tolerance — in which public speech is OK on the condition that it does not lead to action — do we not owe Donald Trump a debt of gratitude for bringing a refreshing gust of candor into our political life, and widening the scope of the sayable in public affairs?

Since my question went unasked, I’ll pose my own answer. I think we do indeed have a lot to thank the Donald for, and I think the particular tone he has adopted — rude, rambunctious, and free-wheeling — has been a welcome return to an earlier and less self-inhibited time in our politics.

Yes, Trump has said some ridiculous things — false ones, too. These are easily corrected or refuted. But he has also spoken some home truths that have shaped the entire presidential debate, and in many ways liberated it. If it weren’t for Trump, we wouldn’t be talking about NAFTA and the Trans-Pacific Partnership, as we are, and whether these and similar trade agreements have gutted the American working class; or whether America’s web of alliances and secret bases around the globe has given other nations a free ride on their own defense while drawing us into needless and catastrophic wars. Even Trump’s latest game of name-tags — “Lyin’ Ted Cruz” and “Crooked Hillary Clinton” — did call attention to Cruz’s lie about Ben Carson dropping out of the presidential race to dampen his support in the Iowa primary, and to Clinton’s membership in the financial and political oligarchy that rules us under the veneer of democracy.

Free speech. Sounds great when you actually hear it.