We Americans revere few things more than Freedom of Speech. We are told in the First Amendment of our Constitution that “Congress shall make no law …abridging the freedom of speech.”
Alas, it’s a right that’s little understood. It means you cannot be arrested for what you say. But it’s often misinterpreted to mean you can say whatever you want without consequences. Here’s my favorite example: in 2010 the popular radio advice hostess Laura Schlessinger came under criticism for her use of the “N word” on her show. When an African American caller (in an interracial marriage) objected to her use of that word, Laura responded: “If you’re that hypersensitive about color and don’t have a sense of humor, don’t marry out of your race.” You can read about it here. After being criticized for her remarks she appeared on Larry King Live and demanded return of her “first amendment rights.” She believed that freedom of speech protected her from criticism for her words. She didn’t understand that others have the same right to express their opinions, and she was not Constitutionally protected from having her feelings hurt.
But from the beginning we’ve struggled with limits to the rights of free speech. Can you say anything? This debate goes all the way back to President Adam’s infamous Alien and Sedition Acts in 1798 which criminalized criticism of the government.
I have no desire to give an entire history of this debate, but we all look to the 1919 Supreme Court decision of Schneck v. the United States. In his majority decision Justice Oliver Wendell Holmes wrote this: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic.”
This make sense. You don’t have the right to speech that directly causes injury to others. But there is also legal precedent that you don’t have the right to prohibit speech that offends you. Many of us remember well the issue of flag burning. In 1989 the Supreme Court decided, in the case of Texas v. Johnson, that burning the American flag is protected speech.
But what about today? If you burn a flag across the street of a VFW hall you’re certainly going to anger the veterans gathered but we can all agree that nobody is in danger. That’s changed.
We’re all still talking about the events last week in Charlottesville but I heard a story that frightens me. The marchers were filmed by many who posted pictures on Twitter, with the hope that the marchers could be called out and recognized for their racist views.
That may be OK with many of us, but it’s not OK with Kyle Quinn. Kyle works for the University of Arkansas and committed the unforgiveable sin of looking like someone who marched in Charlottesville. In an excellent article you can see that someone saw a picture of someone who looked like Kyle and identified him as Kyle (even though Kyle was 900 miles away in Little Rock, Arkansas).
Kyle got a call from someone at the university who verified that he was in Little Rock and suggested that Kyle’s life just got more complicated. He was right.
Soon his Twitter account, email account, etc. blew up. His home address was posted and Kyle and his wife retreated to a friend’s house out of fear for their safety.
I write this because (much like those in the theater when someone shouts “fire”) Twitter, Facebook, and other social media make all of us potential victims of danger. Kyle well knows that a someone with a gun and an agenda (and his home address) may pose exactly the same danger to him as to the theater goers who are stampeded after someone yells fire.
I love freedom of speech as much as anyone. I revel in my ability to disagree with, and even lampoon, politicians I don’t agree with. But I don’t think our founders intended to protect those whose words lead directly to mobs who show up with clubs and torches. And I don’t think they intended to protect the 21st century mobs who traded in clubs and torches for Twitter accounts.
So where do we go from here? Whoever misidentified Kyle made an honest mistake, but hate groups created the environment that made this possible. The march on Charlottesville was organized by a group called Unite the Right.
Previous generations looked on groups like this as reprehensible but protected by the First Amendment. Today we need to look on them as hate groups that can no longer hide behind free speech.