Defending Wretched Excess

Originally Published Oct 1st, 2012 in Ethics Newsline • Posted in: Commentary

by Ethics Newsline editor Carl Hausman

Last week, I addressed a group of international journalists who were touring the United States as part of an educational outreach program. The central question on the minds of a couple of them seemed to be why the United States tolerates — and seemingly condones — media-based dissemination of vicious opinion.

The topic, of course, was the violence related to the Innocence of Muslims film, a slapped-together propaganda piece ridiculing the Prophet Muhammad. Why, our guests wondered, didn’t Google, the corporate parent of YouTube, simply take the piece down, and if they refused (which Google did), why didn’t the government make YouTube pull the video?

While one journalist seemed in full accord with protection of speech and press in general, she asked, in so many words, why the United States can’t be reasonable, defending free speech when it was meaningful but letting the hate-mongers fend for themselves?

There’s no simple answer to that. We do draw the line at many types of expression, including inciting riot, hate speech, and child pornography. But, in general, it is safe to say that the United States historically defends excess, even wretched excess, because the framers of the Constitution and those who have interpreted it have fretted consistently about the slippery slope of suppression.

It’s hard to overstate the importance of free expression in the American ethic. The Declaration of Independence could not have been written, at least not in the form in which it emerged, without the emergence of uncensored mass media.

The printing press survived many skirmishes with the kings and queens of the era who saw it (correctly) as a threat to the established order and imposed harsh licensing laws. Potential penalties for publishing unauthorized material included cutting off the right hand of the offending printer.

The ruling class, it turned out, was exactly right in its fear of the democratizing effects of the printing press. The technology enabled the circulation of philosophical treatises read and admired by the founders, especially Jefferson, who absorbed tracts affirming the existence of basic human rights.

Moreover, the output of the press caused a circular erosion of the power of totalitarian governments because the availability of printed documents spurred greater literacy, which in turn spread the ability to access subversive ideas.

Much of the outrage of American colonists was directed at censorship, and publishers such as Ben Franklin risked the wrath of the crown by publishing without official approval. (And the crown did not mess around when it came to revolution: The penalty for treason was death by public disembowelment.)

After the Revolutionary War, it became obvious that even a people who hated government had to have one, and the founders crafted a Constitution that severely limited the power of elected and appointed officials. Even this careful balancing act didn’t have the full confidence of the citizens who had to ratify the document, so a set of amendments was added to protect against abuses such as unlawful search and seizure, restriction of religious practice, and — perhaps most famously — freedom of speech and of the press.

The First Amendment as it is written seems to offer blanket, complete protection for speech and press and, as such, it proved impractical and more or less unenforceable for more than a century after its establishment. Under the Adams administration, for example, laws were passed that made it a crime to criticize the government. Lincoln shut down newspapers opposed to his Civil War policies and jailed editors.

It wasn’t until World War I — the Unites States’ entry into what for some was a mystifying foreign war, with criticism of that war spread by an increasingly sophisticated mass media — that the Supreme Court was called on to make sense of a Constitution that said Congress (and by extension, no lower arm of government “shall make no law respecting … freedom of speech and of the press,” while at the same time confronting the reality that unbridled speech could pose dangers to security and safety.

In cases involving anti-war protests, Supreme Court justice Oliver Wendell Holmes devised a calculus that elegantly reconciled the conflict between Constitutional guarantees and wartime realities — the “clear and present danger” doctrine, the theory that falsely shouting Fire! in a crowded theater is not protected expression because it’s not expression at all; rather, the words are like weapons — blunt instruments designed to cause harm — uttered in a situation when there is not time to discuss their propriety. Expression and advocacy thus were covered neatly under the First Amendment umbrella; fighting words, betrayals of allied troop movements, and other dangerous forms of expression with no redeeming merit were left out in the rain.

In the 1960s, protections for free expression were broadened further: In the 1964 Times v. Sullivan case, the court ruled that public figures could not successfully sue for libel unless they not only could prove that the defamatory statement was wrong but that it was made with the intent to harm, and in 1968 the High Court further narrowed the “clear and present danger” test for excluding free-speech protection to the so-called Brandenburg Test, which requires that unprotected speech advocate imminent, lawless, action that is likely to occur.

The Brandenburg case, like the Innocence of Muslims film, involved ugly speech — in that case, the ranting of a KKK leader. But it affirmed the notion that the First Amendment can’t be applied in only the easy cases.

By the Brandenburg test, still the benchmark today, the YouTube film seems to fall under the First Amendment umbrella, according to most analyses, because it does not seek directly to incite violence and the imminence of riots halfway around the world could not reasonably have been foreseen.

So in deference to the continuation of the trend of free-speech protections, I argued to the visiting journalists that giving the benefit of the doubt to dubious advocacy makes us swallow hard and that — in the long run — the benefits outweigh the drawbacks.

Writing for a unanimous Supreme Court in a 1940 case involving vituperative speech against the Catholic religions, justice Owen Roberts held that even though the expression was offensive, the right to be boorish is a net benefit in the long run.

“In spite of the probability of excesses and abuses,” read the ruling, “these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy.”

To put it another way, and to paraphrase First Amendment scholar Charles Haynes, laws that restrict freedom of speech may — today — protect your sensibilities. But tomorrow, they may be used to censor your beliefs.

©2012 Institute for Global Ethics

Author: admin

Carl Hausman is Professor of Journalism at Rowan University, the author of several books about media, and a commentator about the role of media and ethics in civic life.

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