Category Archives: Free Speech

Free speech zones (also known as First Amendment zones, free speech cages, and protest zones) are areas set aside in public places that are used to restrict the ability for American citizens to exercise their right of free speech in the United States by forcing them into these zones. The First Amendment to the United States Constitution states that "Congress shall make no law... abridging... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The existence of free speech zones is based on U.S. court decisions stipulating that the government may regulate the time, place, and mannerbut not contentof expression.[citation needed]

The Supreme Court has developed a four-part analysis to evaluate the constitutionality of time, place and manner (TPM) restrictions. To pass muster under the First Amendment, TPM restrictions must be neutral with respect to content, narrowly drawn, serve a significant government interest, and leave open alternative channels of communication. Application of this four-part analysis varies with the circumstances of each case, and typically requires lower standards for the restriction of obscenity and fighting words.[citation needed]

Free speech zones have been used at a variety of political gatherings. The stated purpose of free speech zones is to protect the safety of those attending the political gathering, or for the safety of the protesters themselves. Critics, however, suggest that such zones are "Orwellian",[1][2] and that authorities use them in a heavy-handed manner to censor protesters by putting them literally out of sight of the mass media, hence the public, as well as visiting dignitaries. Though authorities generally deny specifically targeting protesters, on a number of occasions, these denials have been contradicted by subsequent court testimony. The American Civil Liberties Union (ACLU) has filed, with various degrees of success and failure, a number of lawsuits on the issue.

Though free speech zones existed prior to the Presidency of George W. Bush, it was during Bush's presidency that their scope was greatly expanded.[3] These zones have continued through the presidency of Barack Obama; he signed a bill in 2012 that expanded the power of the Secret Service to restrict speech and make arrests.[4]

Many colleges and universities earlier instituted free speech zone rules during the Vietnam-era protests of the 1960s and 1970s. In recent years, a number of them have revised or removed these restrictions following student protests and lawsuits.[citation needed]

During the 1988 Democratic National Convention, the city of Atlanta, Georgia set up a "designated protest zone"[5] so the convention would not be disrupted. A pro-choice demonstrator opposing an Operation Rescue group said Atlanta Mayor Andrew Young "put us in a free-speech cage."[6] "Protest zones" were used during the 1992 and 1996 United States presidential nominating conventions[7]

Free speech zones have been used for non-political purposes. Through 1990s, the San Francisco International Airport played host to a steady stream of religious groups (Hare Krishnas in particular), preachers, and beggars. The city considered whether this public transportation hub was required to host free speech, and to what extent. As a compromise, two "free speech booths" were installed in the South Terminal, and groups wishing to speak but not having direct business at the airport were directed there. These booths still exist, although permits are required to access the booths.[8]

WTO Ministerial Conference of 1999 protest activity saw a number of changes to how law enforcement deals with protest activities. "The [National Lawyers] Guild, which has a 35-year history of monitoring First Amendment activity, has witnessed a notable change in police treatment of political protesters since the November 1999 World Trade Organization meeting in Seattle. At subsequent gatherings in Washington, D.C., Detroit, Philadelphia, Los Angeles, Miami, Chicago, and Portland a pattern of behavior that stifles First Amendment rights has emerged".[9] In a subsequent lawsuit, the United States Court of Appeals for the Ninth Circuit found that "It was lawful for the city of Seattle to deem part of downtown off-limits... But the court also said that police enforcing the rule may have gone too far by targeting only those opposed to the WTO, in violation of their First Amendment rights."[10]

Free speech zones were used in Boston at the 2004 Democratic National Convention. The free speech zones organized by the authorities in Boston were boxed in by concrete walls, invisible to the FleetCenter where the convention was held and criticized harshly as a "protest pen" or "Boston's Camp X-Ray".[11] "Some protesters for a short time Monday [July 26, 2004] converted the zone into a mock prison camp by donning hoods and marching in the cage with their hands behind their backs."[12] A coalition of groups protesting the Iraq War challenged the planned protest zones. U.S. District Court Judge Douglas Woodlock was sympathetic to their request: "One cannot conceive of what other design elements could be put into a space to create a more symbolic affront to the role of free expression.".[13] However, he ultimately rejected the petition to move the protest zones closer to the FleetCenter.[14]

Free speech zones were also used in New York City at the 2004 Republican National Convention. According to Mike McGuire, a columnist for the online anti-war magazine Nonviolent Activist, "The policing of the protests during the 2004 Republican National Convention represent[ed] another interesting model of repression. The NYPD tracked every planned action and set up traps. As marches began, police would emerge from their hiding places building vestibules, parking garages, or vans and corral the dissenters with orange netting that read 'POLICE LINE DO not CROSS,' establishing areas they ironically called 'ad-hoc free speech zones.' One by one, protesters were arrested and detainedsome for nearly two days."[15] Both the Democratic and Republican National parties were jointly awarded a 2005 Jefferson Muzzle from the Thomas Jefferson Center for the Protection of Free Expression, "For their mutual failure to make the preservation of First Amendment freedoms a priority during the last Presidential election".[13]

Free speech zones were commonly used by President George W. Bush after the September 11 attacks and through the 2004 election. Free speech zones were set up by the Secret Service, who scouted locations where the U.S. president was scheduled to speak, or pass through. Officials targeted those who carried anti-Bush signs and escorted them to the free speech zones prior to and during the event. Reporters were often barred by local officials from displaying these protesters on camera or speaking to them within the zone.[16][3] Protesters who refused to go to the free speech zone were often arrested and charged with trespassing, disorderly conduct and/or resisting arrest.[17][18] A seldom-used federal law making it unlawful to "willfully and knowingly to enter or remain in ... any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting" has also been invoked.[19][20]

Civil liberties advocates argue that Free Speech Zones are used as a form of censorship and public relations management to conceal the existence of popular opposition from the mass public and elected officials.[21] There is much controversy surrounding the creation of these areas the mere existence of such zones is offensive to some people, who maintain that the First Amendment to the United States Constitution makes the entire country an unrestricted free speech zone.[21] The Department of Homeland Security "has even gone so far as to tell local police departments to regard critics of the War on Terrorism as potential terrorists themselves."[17][22]

The Bush administration has been criticized by columnist James Bovard of The American Conservative for requiring protesters to stay within a designated area, while allowing supporters access to more areas.[18] According to the Chicago Tribune, the American Civil Liberties Union has asked a federal court in Washington D.C. to prevent the Secret Service from keeping anti-Bush protesters distant from presidential appearances while allowing supporters to display their messages up close, where they are likely to be seen by the news media.[18]

The preliminary plan for the 2004 Democratic National Convention was criticized by the National Lawyers Guild and the ACLU of Massachusetts as being insufficient to handle the size of the expected protest. "The zone would hold as few as 400 of the several thousand protesters who are expected in Boston in late July."[23]

In 1939, the United States Supreme Court found in Hague v. Committee for Industrial Organization that public streets and parks "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." In the later Thornhill v. Alabama case, the court found that picketing and marching in public areas is protected by the United States Constitution as free speech. However, subsequent rulings Edwards v. South Carolina, Brown v. Louisiana, Cox v. Louisiana, and Adderley v. Florida found that picketing is afforded less protection than pure speech due to the physical externalities it creates. Regulations on demonstrations may affect the time, place, and manner of those demonstrations, but may not discriminate based on the content of the demonstration.

The Secret Service denies targeting the President's political opponents. "Decisions made in the formulation of a security plan are based on security considerations, not political considerations," said one Secret Service spokesman.[24]

"These [Free Speech] zones routinely succeed in keeping protesters out of presidential sight and outside the view of media covering the event. When Bush came to the Pittsburgh area on Labor Day 2002, 65-year-old retired steel worker Bill Neel was there to greet him with a sign proclaiming, 'The Bush family must surely love the poor, they made so many of us.' The local police, at the Secret Service's behest, set up a 'designated free-speech zone' on a baseball field surrounded by a chain-link fence a third of a mile from the location of Bush's speech. The police cleared the path of the motorcade of all critical signs, though folks with pro-Bush signs were permitted to line the president's path. Neel refused to go to the designated area and was arrested for disorderly conduct. Police detective John Ianachione testified that the Secret Service told local police to confine 'people that were there making a statement pretty much against the president and his views.'"[18][25] District justice Shirley Trkula threw out the charges, stating that "I believe this is America. Whatever happened to 'I don't agree with you, but I'll defend to the death your right to say it'?"[16]

At another incident during a presidential visit to South Carolina, protester Brett Bursey refused an order by Secret Service agents to go to a free speech zone half-a-mile away. He was arrested and charged with trespassing by the South Carolina police. "Bursey said that he asked the policeman if 'it was the content of my sign,' and he said, 'Yes, sir, it's the content of your sign that's the problem.'"[18] However, the prosecution, led by James Strom Thurmond Jr., disputes Bursey's version of events.[26] Trespassing charges against Bursey were dropped, and Bursey was instead indicted by the federal government for violation of a federal law that allows the Secret Service to restrict access to areas visited by the president.[18] Bursey faced up to six months in prison and a US$5,000 fine.[18] After a bench trial, Bursey was convicted of the offense of trespassing, but judge Bristow Marchant deemed the offense to be relatively minor and ordered a fine of $500 be assessed, which Bursey appealed, and lost.[27] In his ruling, Marchant found that "this is not to say that the Secret Service's power to restrict the area around the President is absolute, nor does the Court find that protesters are required to go to a designated demonstration area which was an issue in this case as long as they do not otherwise remain in a properly restricted area."[27]

Marchant's ruling however, was criticized for three reasons:

In 2003, the ACLU brought a lawsuit against the Secret Service, ACORN v. Secret Service, representing the Association of Community Organizations for Reform Now (ACORN). "The federal court in Philadelphia dismissed that case in March [2004] after the Secret Service acknowledged that it could not discriminate against protesters through the use of out-of-sight, out-of-earshot protest zones."[29] Another 2003 lawsuit against the city of Philadelphia, ACORN v. Philadelphia, charged that the Philadelphia Police Department, on orders from the Secret Service, had kept protesters "further away from the site of presidential visits than Administration supporters. A high-ranking official of the Philadelphia police told ACLU of Pennsylvania Legal Director Stefan Presser that he was only following Secret Service orders."[21][30] However, the court found the ACLU lacked standing to bring the case and dismissed it.[31]

The Secret Service says it does establish 'public viewing areas' to protect dignitaries but does not discriminate against individuals based on the content of their signs or speech. 'Absolutely not,' said Tom Mazur, a spokesman for the agency created to protect the president. 'The Secret Service makes no distinction on the purpose, message or intent of any individual or group.' Civil libertarians dispute that. They cite a Corpus Christi, Texas, couple, Jeff and Nicole Rank, as an example. The two were arrested at a Bush campaign event in Charleston, West Virginia, on July 4, 2004, when they refused to take off anti-Bush shirts. Their shirts read, 'Love America, Hate Bush'... The ACLU found 17 cases since March 2001 in which protesters were removed during events where the president or vice president appeared. And lawyers say it's an increasing trend.[32]

The article is slightly mistaken about the contents of the shirts. While Nicole Rank's shirt did say "Love America, Hate Bush", Jeff Rank's shirt said "Regime change starts at home."[33]

The incident occurred several months after the Secret Service's pledge in ACORN v. Secret Service not to discriminate against protesters. "The charges against the Ranks were ultimately dismissed in court and the mayor and city council publicly apologized for the arrest. City officials also said that local law enforcement was acting at the request of Secret Service."[34] ACLU Senior Staff Attorney Chris Hansen pointed out that "The Secret Service has promised to not curtail the right to dissent at presidential appearances, and yet we are still hearing stories of people being blocked from engaging in lawful protest," said Hansen. "It is time for the Secret Service to stop making empty promises."[34] The Ranks subsequently filed a lawsuit, Rank v. Jenkins, against Deputy Assistant to the President Gregory Jenkins and the Secret Service. "The lawsuit, Rank v. Jenkins, is seeking unspecified damages as well as a declaration that the actions leading to the removal of the Ranks from the Capitol grounds were unconstitutional."[34] In August 2007, the Ranks settled their lawsuit against the Federal Government. The government paid them $80,000, but made no admission of wrongdoing.[35] The Ranks' case against Gregory Jenkins is still pending in the District of Columbia.[36]

As a result of ACLU subpoenas during the discovery in the Rank lawsuit, the ACLU obtained the White House's previously-classified presidential advance manual.[37] The manual gives people organizing presidential visits specific advice for preventing or obstructing protests. "There are several ways the advance person" the person organizing the presidential visit "can prepare a site to minimize demonstrators. First, as always, work with the Secret Service to and have them ask the local police department to designate a protest area where demonstrators can be placed, preferably not in view of the event site or motorcade route. The formation of 'rally squads' is a common way to prepare for demonstrators... The rally squad's task is to use their signs and banners as shields between the demonstrators and the main press platform... As a last resort, security should remove the demonstrators from the event site."[37]

The use of free speech zones on university campuses is controversial. Many universities created on-campus free speech zones during the 1960s and 1970s, during which protests on-campus (especially against the Vietnam War) were common. Generally, the requirements are that the university is given advance notice and that they are held in locations that do not disrupt classes.

In 1968, the Supreme Court ruled in Tinker v. Des Moines Independent Community School District that non-disruptive speech is permitted in public schools. However, this does not apply to private universities. In September 2004, U.S. District Court Judge Sam Cummings struck down the free speech zone policy at Texas Tech University. "According to the opinion of the court, campus areas such as parks, sidewalks, streets and other areas are designated as public forums, regardless of whether the university has chosen to officially designate the areas as such. The university may open more of the campus as public forums for its students, but it cannot designate fewer areas... Not all places within the boundaries of the campus are public forums, according to Cummings' opinion. The court declared the university's policy unconstitutional to the extent that it regulates the content of student speech in areas of the campus that are public forums".[38]

In 2007, the Foundation for Individual Rights in Education released a survey of 346 colleges and Universities in the United States.[39] Of those institutions, 259 (75%) maintain policies that "both clearly and substantially restrict freedom of speech."

In December 2005, the College Libertarians at the University of North Carolina at Greensboro staged a protest outside the University's designated protest zones. The specific intent of the protest was to provoke just such a charge, in order to "provoke the system into action into a critical review of what's going on."[40] Two students, Allison Jaynes and Robert Sinnott, were brought up on charges under the student code of conduct of "violation of respect",[41] for refusing to move when told to do so by a university official.[40] The university subsequently dropped honor code charges against the students.[40] "University officials said the history of the free-speech zones is not known. 'It predated just about everybody here," said Lucien 'Skip' Capone III, the university attorney. The policy may be a holdover from the Vietnam War and civil rights era, he said.'"[40]

A number of colleges and universities have revised or revoked free speech zone policies in the last decade, including: Tufts University,[42]Appalachian State University,[42] and West Virginia University.[42][43] In August, 2006, Penn State University revised its seven-year-old rules restricting the rights of students to protest. "In effect, the whole campus is now a 'free-speech zone.'"[44]

Controversies have also occurred at the University of Southern California,[45]Indiana University,[46] the University of Nevada, Las Vegas,[47] and Brigham Young University.[48][49]

At Marquette University, philosophy department chairman James South ordered graduate student Stuart Ditsler to remove an unattributed Dave Barry quote from the door to the office that Ditsler shared with three other teaching assistants, calling the quote patently offensive. (The quote was: "As Americans we must always remember that we all have a common enemy, an enemy that is dangerous, powerful, and relentless. I refer, of course, to the federal government.") South claimed that the University's free-speech zone rules required Ditsler to take it down. University spokeswoman Brigid O'Brien Miller stated that it was "a workplace issue, not one of academic freedom."[50][51] Ultimately, the quote was allowed to remain, albeit with attribution.[52]

Designated protest areas were established during the August 2007 Security and Prosperity Partnership of North America Summit in Ottawa, Canada. Although use of the areas was voluntary and not surrounded by fences, some protesters decried the use of designated protest areas, calling them "protest pens."[53]

During the 2005 WTO Hong Kong Ministerial Conference, over 10,000 protesters were present. Wan Chai Sports Ground and Wan Chai Cargo Handling Basin were designated as protest zones. Police wielded sticks, used gas grenades and shot rubber bullets at some of the protesters. They arrested 910 people, 14 were charged, but none were convicted.

Three protest parks were designated in Beijing during the 2008 Summer Olympics, at the suggestion of the IOC. All 77 applications to protest there had been withdrawn or denied, and no protests took place. Four persons who applied to protest were arrested or sentenced to reeducation.[54][55]

In the Philippines, designated free speech zones are called freedom parks.

Original post:
Free speech zone - Wikipedia, the free encyclopedia

MFF . I

MFF . II

,

: , - , , , .

, , , .

, . , ! . !

, - -.

, .

.

.

, . .

, - .

, , , . , .

, . .

90- , , .

, , , , .

, . , , .

- .

, .

, , .

, , , , .

, , , .

, , , 4,5% . , .

, , 4,5% (, ) .

2012 , 145,7 . .

, .

, , , 6,55 . . , .

. 1 . . 10 . , , 65,5 , .

, , .

, , , .

- , , , .

2007 40 . .

2012 , , , 180-200 . . .

, , 250 .

.

, , 42 , 100- .

, , .

, , . . . - , 2007 , 2008 .

, , - .

, , , , , .

. , -.

, . , .

, . , , .

, , .

, , . , .

, , , , - . , .

. - .

, .

.

, - . , 2, , .

, , . , . .

, .

, .

, , . .

, . , , . , .

. , .

.

, , .

, .

, , .

, , -, .

, , , .

, .

, .

, . , .

.

.

, .

, .

, , 140 .

100 , . , , . , .

. 140 ! - , , .

, . , .

, , . .

, .

, !

, , . , , , . , . ! 100 , 60. . .

, , .

, . - .

, , , . , , . .

, . , , .

- , . , - .

, , . . , , , !

, .

, , .

, , .

, , ! . ! .

, , .

.

" , , , , , . ."

- .

Read the original post:
Free Speech/ . - ...

"Free speech" isn't so free when it costs you your liberty. In countries around the world, the right to express one's thoughts and beliefs is under assault.

Throughout the world individuals face harassment and imprisonment as a result of exercising their right to freedom of expression.

Everyone has the right to seek, receive and impart information and ideas without fear or interference.

This right is important for the personal development and dignity of every individual and is vital for the fulfillment of other human rights.

Freedom of expression has always been a core part of Amnesty International's work and is closely linked to the right to hold opinions and the right to freedom of thought, conscience and religion.

Amnesty International has campaigned on behalf of thousands of prisoners of conscience people who are imprisoned because of their political, religious or other conscientiously held beliefs, ethnic origin, sex, color, language, national or social origin, economic status, birth, sexual orientation or other status.

Amnesty International calls for the immediate and unconditional release of all prisoners of conscience

Human rights defenders are individuals, groups of people or organizations who promote and protect human rights through peaceful and non-violent means. Their actions depend on, and fuel, freedom of expression.

Because of their activities, human rights defenders can become a target of abuse. Governments, security forces, business interests, armed groups, religious leaders and sometimes even their own families and communities can try and silence their dissenting opinions or actions.

The internet has opened up new possibilities for individuals and groups to seek and impart information and ideas. Yet, the internet is also a new frontier where freedom of expression is being challenged.

Read the rest here:
Censorship and Free Speech | Amnesty International USA

Warburton writes, "John Stuart Mill was explicit that incitement to violence was the point at which intervention to curb free speech was appropriate. Mere offensiveness wasn't sufficient grounds for intervention and should not be prevented by law, by threats, or by social pressure." "A spirit of toleration should not include a prohibition on causing offence." Times columnist Oliver Kamm agreed, "Free speech does indeed cause hurt - but there is nothing wrong in this."

As US Justice Brennan said in Texas v. Johnson, which upheld the right of dissenters to burn the US flag as a protest, "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Virtually anything can be seen as offensive, and something that is both true and important is bound to offend somebody.

But in Britain today, it seems that we have the right to have free speech, as long as we don't use it. So members of the English Defence League are arrested and the group Muslims against Crusades is disbanded for saying things that some find offensive. But it is legitimate, if unjust and idiotic, to call for Sharia law here, and it is also legitimate, and just, to oppose Sharia law.

This government is trying to suppress dissent. It is expanding its police powers to control and limit expression, narrowing our rights of democratic participation.

The meanings of symbols like the poppy are in the realm of opinion and argument, so the state must not impose a politically correct interpretation on us.

See the original post:
Amazon.com: Free Speech: A Very Short Introduction (Very ...

Friday, September 13, 2002

Free speech at public universities and colleges is at once the most obvious and the most paradoxical of constitutional principles. It is obvious because given the nature of academic inquiry, only an open, robust and critical environment for speech will support the quest for truth. At the same time, universities are at once communities that must balance the requirements of free speech with issues of civility, respect and human dignity. They are also part and parcel of the larger social order with its own, often competing set of values.

Public universities are particularly rich grounds for conflict over matters of speech. They bring together persons with often strongly held yet contradictory views. Universities, for example, have their own newspapers, some of which may be operated by the university, by the students or by an off-campus group. Public institutions in their diversity often have students and faculty of different political persuasions, sexual orientations and religious commitments. Moreover, one of the driving concepts of the university campus is academic freedom, the right to inquire broadly, to question and to promote an environment where wrong answers, seemingly absurd ideas and unconventional thought are not just permitted but even encouraged.

As Robert M. ONeil, a former university president and expert on First Amendment issues, wrote in his book Free Speech in the College Community, the fate of free speech on public campuses became increasingly important, considerably more controversial, and generally more supportive of openness over the course of the 20th century. In recent times the most contentious issues have involved the development of so-called speech codes designed to restrict certain kinds of speech deemed by the administration to be offensive.

But the issue of free expression on campus goes beyond speech codes and involves a host of other matters. They include outspoken university faculty; technologically mediated discussions that transcend through the World Wide Web the requirements of time and place so essential to traditional First Amendment analysis; visiting speakers expressing controversial views; the use of student fees to support gay, lesbian and other organizations; the reporting and editorializing of the campus newspaper; artistic expression; and the facultys freedom to pursue, publish and proclaim their research findings. In each of these instances, the underlying issue for a university is its duty to teach its students the lessons of responsibility that accompany the privilege of academic freedom.

The concept of academic freedom The concept of academic freedom and its connection to freedom of expression received full treatment in the landmark 1957 decision Sweezy v. New Hampshire. In that case, the attorney general of New Hampshire, acting on behalf of the state Legislature under a broad resolution directing him to determine whether there were subversive persons working for the state, had charged Paul Sweezy, a visiting lecturer at the University of New Hampshire, with failing to answer questions. The questions were about whether he had delivered a lecture with leftist contents at the university and about his knowledge of the Progressive Party of the state and its members. Sweezy refused to answer those questions, on the grounds that doing so would violate his rights under the First Amendment and the freedom that it provided him to engage in academic pursuits.

In 1957 the U.S. Supreme Court, in a plurality opinion by Chief Justice Earl Warren, held in Sweezys favor and in so doing authored a ringing endorsement of academic freedom. The essentiality of freedom in the community of American universities is almost self-evident. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding, otherwise our civilization will stagnate and die. In recent times, however, this broad statement in support of academic freedom has come under increasing attack, and ironically that attack has come from the liberal side of the political spectrum that the Supreme Court sought to protect in Sweezy.

Despite that seemingly ringing declaration, the justices have failed to define the exact nature and scope of academic freedom. They have also failed to develop a real constitutional theory to support it. Generally, the concept, as applied to public universities, is rooted in the First Amendments concern with free inquiry and promotion of heterodox views that critically examine conventional wisdom.

As with related areas of First Amendment jurisprudence, the justices have subscribed to the view that truth is discovered in the marketplace of ideas, culled from a cacophony of diverse views. Indeed, the Court has referred interchangeably to academic freedom and the right to political expression. The Court, however, has imposed certain limitations upon academic freedom, because employees of academic institutions are treated almost identically to all other public employees. Although the Court has not directly limited academic freedom through the public-employee doctrine, it has constricted the rights of faculty at public institutions. According to case law, speech on matters of public concern is constitutionally protected, while speech on internal institutional matters is entitled to considerably less protection. The justices have accepted that a university has a legitimate need to maintain orderly operations and to regulate its own affairs, and that its duty to do so may outweigh the employees free-speech interests. Furthermore, the Court has concluded expressly that academic freedom protects neither intimidating acts, actual threats nor disruptive acts interfering with an educational program.

Speech codes Speech codes have emerged from this constitutional milieu. They are the most controversial ways in which universities have attempted to strike a balance between expression and community order. Many major universities have introduced these codes to deal especially with so-called hate speech; that is, utterances that have as their object groups and individuals that are identified on the basis of race, ethnicity, gender or sexual orientation.

Beginning in the 1980s, a variety of studies, including one by the Carnegie Foundation for the Advancement of Teaching titled Campus Tensions, highlighted instances of racial hatred and harassment directed at racial minorities. Over the past two decades the harassment has grown to include gays and lesbians, women and members of other ethnic groups. On several campuses white students have worn blackface for sorority and fraternity parties. On one campus a flier was distributed that warned: The Knights of the Ku Klux Klan Are Watching You.

Many campuses responded to such actions by adopting policies that officially banned such expression and made those found guilty of engaging in it susceptible to punishments ranging from reprimands to expulsion. The idea, of course, was to chill the environment for such expression by punishing various forms of speech based on either content or viewpoint. These codes found strong support from some administrators, faculty and students who were convinced that by controlling speech it would be possible to improve the climate for racial and other minorities. The assumption behind the codes was that limiting harassment on campus would spare the would-be victims of hate speech psychological, emotional and even physical damage. The supporters of such codes also argued that they represented good educational policy, insisting that such bans meant that the learning process on campus would not be disrupted and that the concept of rational discourse, as opposed to hate-inspired invective and epithet, would be enshrined.

In developing these codes, university administrators relied on a well-known Supreme Court doctrine i.e., the fighting words exception developed in the 1942 decision Chaplinsky v. New Hampshire. Justice Frank Murphy, writing for a unanimous court, found that Walter Chaplinsky had been appropriately convicted under a New Hampshire law against offensive and derisive speech and name-calling in public. Murphy developed a two-tier approach to the First Amendment. Certain well-defined and narrowly limited categories of speech fall outside the bounds of constitutional protection. Thus, the lewd and obscene, the profane, the libelous, and insulting or fighting words neither contributed to the expression of ideas nor possessed any social value in searching for truth.

While the Supreme Court has moved away from the somewhat stark formation given the fighting-words doctrine by Justice Murphy, lower courts have continued to invoke it. More important, universities have latched on to it as a device by which to constitutionalize their speech codes. The University of California in 1989, for example, invoked the fighting-words doctrine specifically, and other institutions of higher learning have done the same. Some institutions have recognized that the protean and somewhat vague nature of the fighting-words doctrine had to be focused. In 1990 the University of Texas developed a speech code that placed emphasis on the intent of the speaker to engage in harassment and on evidence that the effort to do so had caused real harm. Still other institutions, most notably the University of Michigan, attempted to link their speech codes to existing policies dealing with non-discrimination and equal opportunity. That tactic aimed to make purportedly offensive speech unacceptable because it had the consequence of producing discriminatory behavior.

These codes frequently became parodies of themselves and even the subject of satirical skits on late-night television programs such as Saturday Night Live. As Robert ONeil points out, perhaps the most notable example came from the University of Connecticut. Its policy, which was struck down by a federal court, went so far as to make inappropriately directed laughter and conspicuous exclusion from conversations and/or classroom discussions violations of its speech policy.

Political correctness The Connecticut example, however, raises a far more disquieting issue. The erection of these codes in the late 1980s and the early 1990s was done, at least in part, in response to dogged pressures brought by groups determined to use the authority of the university to eliminate harassment and discrimination while pressing their own causes. As former university president Sheldon Hackney has observed: [I]n this kind of argument, one is either right or wrong, for them or against them, a winner or a loser. Real answers are the casualties of such drive-by debate. This may be good entertainment, but it only reinforces lines of division and does not build toward agreement.

As so-called political correctness ignited a nationwide debate about what universities could and should restrict, many liberals found themselves in the awkward position of supporting the very limitations on expression that they had fought against during and after the great McCarthy Red Scare of the 1950s and 1960s, and campuses divided into camps for and against. Moreover, states during these years also adopted bans on speakers, most notably those associated with the Communist Party. Hence, a new and left-wing form of political oppression seemed to be replacing an older, right-wing one, with the same effect: The views and voices of some were curtailed.

Overbreadth, vagueness & content discrimination Speech codes are vulnerable in several ways and many have been struck down on constitutional grounds. Courts have viewed the codes as failing on two important points. First, they have been deemed to be overly broad and vague, reaching groups and persons not appropriately covered by such codes. In 1989, for example, a federal judge in Doe v. The University of Michigan, threw out the universitys code because it was overly vague when it proscribed language that stigmatizes or victimizes an individual. The guidebook that went along with enforcing the code, the judge found, included a provision that restricted speech that might prompt someone to laugh at a joke about a fellow student in class who stuttered. Such speech would have been protected off campus and, therefore, it could not be excluded on campus, the judge found. Moreover, the same judge found that comments made by a social-work student to the effect that homosexuality was a disease should not have been punished. [T]he university, the judge wrote, considered serious comments in the context of the classroom discussion to be sanctionable under the policy. As such, the court condemned the universitys policy as vague and potentially without limitation in its impact on members of the academic community.

Second, and related to the issue of vagueness, the speech codes have been attacked successfully because they involve a regulation of either the content or viewpoint, not just its time, place and manner. While advocates of speech codes argued that they were essentially content neutral and protected by the fighting-words doctrine, federal judges found otherwise. In the case of the University of Wisconsin code, a federal judge in the 1991 case of UWM Post v. Board of Regents, held that the fighting-words doctrine had little value as a guide, since the code pronounced the utterance of certain kinds of speech unacceptable even if they were unlikely to result in a breach of the peace. In fact, such codes were meant specifically to exclude certain kinds of content in speech. These codes prevented a speaker from ever having a chance to convince the listener of the correctness of his or her positions, since the words to do so could never be uttered or written.

In many ways the Supreme Court dealt speech codes a seemingly devastating blow in its 1992 decision R.A.V. v. City of St. Paul. Though the case dealt with a St. Paul, Minn., ordinance that made it a crime, among other things, to place on public or private property a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender, it also had broad implications for universities. The unanimous Court held the ordinance unconstitutional on the grounds that it sought to ban speech based on content. The effect of the decision was to slow but not altogether end the use of bans on hate speech, either on or off campus.

Judicial precedent vs. collegiate action Yet just because federal courts, both high and low, have severely restricted speech codes, it does not follow that the universities have altogether complied.

As John B. Gould reports in his ground-breaking study, The Precedent That Wasnt: College Hate Speech Codes and the Two Faces of Legal Compliance, college hate-speech codes are far from dead. His careful analysis of codes enacted between 1992 and 1997 demonstrates that hate-speech policies not only persist, but have also actually increased in number despite court decisions striking them down. By 1997 the percentage of schools with speech policies had actually jumped 11% from 1992, Gould found, and, while policies against verbal harassment of minorities had dropped 3%, those covering other kinds of offensive speech had tripled. As Gould notes, this apparent contradiction between judicial precedent on one hand and collegiate action on the other is hardly surprising to students of judicial impact, but it does highlight the tenacious efforts by advocates of speech codes to continue to use institutional authority to limit speech.

The matter of the legal standing of such codes, however, can obscure the larger issue of whether they should exist at all. Of course, expression on a campus is not a free-for-all; there are limits. There are clearly forms of expression associated with conduct that can be banned, including fighting words, libel, falsification of research findings, plagiarism and cheating. In these instances, as ONeil notes, the limitation placed on expression is not a matter of the speakers viewpoint or message. Universities, he warns, need to be wary of picking and choosing which speech they will and will not support and in so doing protecting some groups by curbing the speech of others. Moreover, most university speech codes have been condemned by the American Civil Liberties Union, although the ACLU has also insisted that universities can draft disciplinary codes that are narrowly tailored to prevent and punish such behavior as intimidating phone calls, threats of attack, and extortion. However, speech that merely creates an unpleasant learning environment is not, according to the ACLU, susceptible to being regulated. That position has been generally adopted by the federal courts.

Universities are not islands The debate over speech codes reminds us of the ongoing importance of free expression on campus and the often controversial nature of its practice. Universities above all other institutions must welcome a broad range of views and protect speech that has a strong viewpoint or content in its message. New technology, for example, has created novel issues for campuses, with students and faculty using the World Wide Web to communicate disputed ideas, such as that the Holocaust did not occur, that either are offensive to many and arguably wrong, or to provide access to materials such as pornography that some find repulsive.

The list could be extended to other areas as well: the radical speaker, the dissident faculty member, the religious fundamentalist, the artist pressing the boundaries of civility and so on. As thorny and troubling as these issues may be, the history of free expression suggests that these and other matters are not going away; indeed, they are inherent in a free society generally and especially on a public university campus, bound as it is by the federal and state constitutions. Efforts to restrict the viewpoint or message of anyone on a campus puts the institution at odds with its primary educational mission: to give students the opportunity to sort through opposing ideas.

The First Amendment generally, and freedom of expression in particular, are not absolute concepts, and that is why they are at once so difficult to administer and so essential to a free society and an educated citizenry. Community interests and civility have always to be weighed in the balance. Campuses are in no way obliged to permit speech that poses a threat of imminent danger, lawlessness or the destruction of either public or private property. Campus newspapers are not free to print whatever they want; the law of libel applies to them just as it applies to every other journalistic enterprise. Child pornography is unacceptable, whether on or off the campus. What is criminal away from the campus is criminal on campus. Universities are not islands. They are part of a larger community of values and interests, albeit that they enjoy the special privilege of and responsibility for their academic freedom and the goal of unfettered inquiry that animates it.

Tags: free speech, public college

More articles related to Free Speech on Public College Campuses | Speech Research | free speech, public college. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.

View post:
Free speech on public college campuses overview | First ...

A powerful indictment of contemporary attacks on free speech, this book argues for a vigorous First Amendment jurisprudence protecting even offensive types of speech. In recent years, political activists, academics, and legal specialists have attacked traditional notions of free speech protection as they concern hate speech, obscenity, and pornography. They have called for changes in Supreme Court doctrine in defining the First Amendment and have argued that the traditional view of free speech actually creates and perpetuates a society in which the weakwomen, minorities, the poorhave no voice. While recognizing their fears, Nicholas Wolfson argues that it is impossible to separate bad speech from good speech without fatally compromising the uniquely American concept of free speech, and that efforts to modify our concept of free speech for a greater egalitarian good can only result in undue state influence over private speech. In a keenly argued analysis, he finds that, in the end, the preservation of free and vigorous speech requires a strong First Amendment protection for even the most hateful of speech.

Go here to read the rest:
Hate Speech, Sex Speech, Free Speech: Nicholas Wolfson ...

Contents Some Thoughts on Free Speech, Language, and the Rule of Law by Thomas Streeter

(from Robert Jensen and David S. Allen (eds.), Freeing the First Amendment: Critical Perspectives on Freedom of Expression, New York University Press, 1995, pp. 31-53.)

This chapter discusses the relevance of research and reflection on language to recent critical trends in thinking on free speech. There is a tendency to interpret many of the recent revisionist approaches to free speech as if they were simply calls for exceptions to otherwise clear cut rules and principles, as if, say, pornography or racism are so exceptionally evil that they fall outside the parameters of the kinds of speech that are "obviously" protected under the First Amendment. This misses the fact that the new approaches, with varying degrees of explicitness, involve theoretical and epistemological challenges to the underlying premises of free speech law in general; over the long run, what the new approaches are calling for are not exceptions but a restructuring of free speech law as a whole. The ideas driving this profound rethinking come from a variety of traditions, including various currents of feminism, literary theory, and theories of race and ethnicity. This chapter focuses on just one of those traditions: the complex twentieth century theorizing of language, sometimes called the "linguistic turn" in twentieth century philosophy. Although the linguistic turn is only one aspect of the new thinking about free speech, and although its importance and character is not agreed upon by all those advocating the new thinking, calling attention to it is useful because it nicely highlights some conceptual difficulties of the traditional framework and because it helps differentiate the revisionist criticisms from social determinist and other subtly authoritarian criticisms of free speech.

On the one hand, this chapter argues that the linguistic turn involves some revelations about the nature of language and human communication that do not accord well with the understandings of language implicit in free speech law, particularly with the metaphor of the marketplace of ideas. On the other, it argues that part of what is at stake is the way American culture envisions the rule of law as a whole. In particular, important currents of the understanding of the rule of law suggest the possibility and necessity of constructing rules, procedures, and meanings that transcend or can be abstracted from context, whereas the linguistic turn suggests that this is impossible, that meanings can be determined only in relation to particular contexts. The final part of this chapter, therefore, suggests some avenues for exploring free speech in its historical and social context, as opposed to efforts to abstract it out of context.

In the course of a discussion of the campus hate speech controversy, literary critic Henry Louis Gates (speaking from an African American position) provided the following hypothetical examples of potentially "harmful" speech directed at a minority student:

Sociolinguistics offers an answer to the first question: the social phenomenon of linguistic style. It is not the contents of the first statement that give it force; the argument it makes is, at best, dubious and obfuscatory, whereas the second statement at least would communicate the true feelings of the speaker towards the hearer with considerable precision. The first statement's power comes from its style.

It is a well established fact that fluency in any language involves mastery, not just of a single, "correct" version of a language, but of a variety of styles or codes appropriate to specific contexts.[2] Gates' first example is a case of the formal or "elaborated" style of contemporary English, which is highly valued in academic and professional settings. It is characterized by, among other things, Latinate vocabulary ("demanding educational environments" instead of "tough schools") and elaborate syntax. The second is an example of informal or restricted style, characterized by ellipsis (omitting "You get out of my face . . . ") and colloquial constructions.

Linguists also have long insisted that, in an absolute sense, formal style is no more correct or better for communication than informal style. Scientifically speaking, what makes a style appropriate or inappropriate is the social context in which it is used: in an academic setting, the formal character of the first example gives the statement force, but in another context, say, a working class bar, it might only elicit laughter and derision whereas the second statement might have considerable impact. In the appropriate context, therefore, one can use informal style brilliantly and subtly, and conversely, it is quite possible to speak in a thoroughly formal style and yet be inept, offensive, or simply unclear.[3]

What style differences communicate, then, are not specific contents, but social relations between speakers and listeners, i.e., relations of power, hierarchy, solidarity, intimacy, and so forth. In particular, formal language suggests a relation of impersonal authority between speaker and listener, whereas informal language suggests a more intimate (though not necessarily friendly) relationship. You can petrify a child by interjecting into an otherwise informal conversation, "No you may not." The shift to formal style (no ellipsis, "may not" instead of "can't") shows that the speaker is not just making a request, but is asserting his or her powers of authority as an adult over the child listener.

Gates's first example would be more wounding to a minority student, therefore, because, by couching itself in a formal, academic style, it is rhetorically structured as the expression of "impersonal," rational, and thus institutionally sanctioned, sentiments. It thereby invokes the full force of the authority of the university against the student's efforts to succeed in it. Gates's second example, with its informal style, suggests that one individual, the speaker, harbors racist ill will towards the listener. The first example, by contrast, suggests that, not just one individual, but the entire institution of the university in all its impersonal, "rational" majesty, looks upon the student as unfit.

So why is it easier to penalize the second kind of statement than the first, when it is the first that is potentially more damaging (which is not necessarily to suggest that we should penalize the first kind of statement)? Contemporary law in general is insensitive to matters of linguistic style. Hollywood action movies have made a cliche of lampooning the incongruity of reading the highly formal, legalistic Miranda clause during arrests, which are typically emotional encounters between working class cops and criminals, i.e., contexts where informal style would be appropriate.[4] In First Amendment jurisprudence, where language is not only the vehicle but the subject matter of the law, this insensitivity can lead to conceptual confusion. Linguistic style may be a fact of life, but traditional legal liberal ways of thinking about free speech, especially those encapsulated in the metaphor of the "marketplace of ideas," are strangely incapable of addressing it.

The marketplace metaphor in free speech law involves imagining symbolic and linguistic phenomena as if they were analogous to market exchange, which implies a number of things about language. Most obviously, it implies that language is primarily an exchange, a transference of something (perhaps "information"), from one person to another. Hence, in linguistic exchanges what matters is the contents of the exchange, not the style or form in which it is "packaged," just as in real market exchanges it makes little difference if you pay by check or cash. Yet, as in Gates' example, in language the "package" can be everything. The marketplace metaphor, then, draws our attention away from the importance of just the kind of stylistic differences that sociolinguists say are central to the workings of everyday language.

The marketplace metaphor, furthermore, tends to imply that the good that comes from unconstrained human speech comes from some neutral, universal, mechanical, and leveling process, a linguistic equivalent to the economist's invisible hand out of which will emerge truth, or at least some form of democratic justice. That neutral, mechanical process, furthermore, is contrasted in law with "arbitrary" government interference. And yet, in several ways, linguistics has taught that language itself is arbitrary at its core; in language, the boundary between "natural" processes and arbitrary ones is difficult, some would argue impossible, to discern.

Linguists say that language is "arbitrary" in the sense that meaning emerges, not from anything logically inherent in words or their arrangement, but from the specific conventions and expectations shared by members of a given speech community, conventions and expectations that can and do change dramatically from time to time and place to place. Aside from language in general and perhaps some very deep-level aspects of syntax, there is very little that is universal, neutral, or mechanical about human languages. This insight grew out of the observation that languages differ profoundly from one another, not only in terms of the meanings of specific words, but in terms of basic aspects of the ways those words are arranged: some languages have only two or three words for color, for example, others have nothing English speakers would recognize as verb tenses. But it has also been bolstered by detailed analysis of the workings of language in general. Meanings are fixed neither by logic nor by some natural relation of words to things, but by the contextual and shifting system of interpretation shared by the members of a given speech community.

The arbitrariness of language presents two problems for traditional thinking about freedom of speech. One problem involves legal interpretation, the belief that properly expert judges and lawyers following the proper procedures can arrive at the correct interpretation of a dispute. Often described as the problem of the indeterminacy of law, the purely contextual character of meaning would suggest that legal decisions will always be forced to fall back on contingent, social or political values to decide where the boundaries in the law lie.[5] It is in the character of language, in other words, that a judge will never be able to look at the text of the Bill of Rights and legal precedents to decide whether or not flag burning is protected by the First Amendment; she will always in one way or another be forced to make a choice about whether or not she thinks it should be protected, and will always be faced with the possibility that a reasonable person could plausibly disagree.

Indeterminacy should not be mistaken for the absurd assertion that any word can mean any thing, that there is no stability to meaning whatsoever. As deconstructionist literary critic Barbara Johnson puts it,

A second problem suggested by the arbitrariness of language involves the impossibility of abstracting from context that is a linchpin of the formalist legal logic which today dominates thinking about freedom of speech. According to some understandings of the rule of law, justice is best served when applied according to indisputable, clear rules of procedure and decisionmaking. Hence the First Amendment protects Nazis marching in Skokie and flag burning, not because anything good is being accomplished in either case, but because the important thing is to uphold the rules impartially and unequivocally. And being impartial and unequivocal typically means that rules are upheld regardless of context.

If one were to suggest, say, that the harm from Nazis marching in a Jewish suburb outweighs the value of protecting their speech because of the history of the Holocaust and the irrational and violent character of Nazi ideology, or that flag burning is such an ineffectual form of political expression and so potentially offensive that nothing would be lost by restricting it, the formalist counterargument is that this would "blur" the boundaries, cross what lawyers call the bright lines, upon which our system of justice rests: the rules are more important than the context.

An important example of formalist reasoning is the Bellotti case, in which the Supreme Court struck down a Massachusetts law limiting corporate campaign donations. The Court reached its decision, not simply by weighing the positive and negative effects of the law, nor by deciding that it was a good thing in this case to grant large corporations the same rights as private individuals. The decision was based on the argument that even considering the source of the campaign donations (the "speech" in question) was inappropriate; every individual has a right to unrestricted political speech, and even asking whether corporate "individuals" are as worthy of protection as ordinary individuals would blur the bright lines upon which the rule of law is based.[7] Another example would be American Booksellers Association, Inc. v. Hudnut, when the court threw out an anti-pornography ordinance. The court argued that, even if pornography has negative effects, the same might be said of other forms of protected speech. From this it concluded that "[i]f the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech," and thus negative effects do not justify restrictions. As Stanley Fish has pointed out, this is a peculiar logic: faced with facts which call into question the speech/action distinction which underlies the law, the court upholds the law against the facts which would undermine it. But it is a typically formalist logic: the point is to uphold the rule of law, i.e., abstract, neutral principles and procedures; if the coherence of those abstract principles is threatened by facts, you throw out the facts, not the principles.[8]

The problem is that, if the meanings of statements emerge from convention, from social context, then the insistence on excluding context, on divorcing rules and their enforcement from social and political complexities of a situation, is an impossibility. This is not simply an argument that it would be reasonable to sometimes include a little bit of context in legal decisionmaking, that First Amendment law should lean towards a more policy-oriented weighing and balancing of principles and rights in special circumstances such as highly concentrated or technologically inaccessible media. Rather, the argument is that formalist arguments of free speech can not be doing what they claim, that context is present in decisions in spite of claims to the contrary. Decisions that grant protection to marching Nazis and flag burning are not simply decisions that show a preference for bright line rules over context; on the contrary, such decisions are themselves a product of a particular social and historical context, and in turn contribute to the making of particular contexts.

The collapse of the boundary between "natural" speech and arbitrary interference with it implied by indeterminacy creates a further problem for First Amendment interpretation: the collapse of the distinction between speech and conduct or speech and action. The exercise of free speech, the "free marketplace of ideas," is imagined as a kind of neutral, free and equal exchange, contrasted with unfree or arbitrary coercion. What disappears in the face of the arbitrariness of language is the coherence of that contrast, the faith that there is an important categorical distinction between people talking and arguing and people coercing one another through some kind of action. It is now an axiom of sociolinguistics and many other schools of thought that language use is an important kind of social action, that words do not merely reflect reality or express ideas, they primarily are a way of doing things, a way of acting in the social world. Although J. L. Austin began his classic How to Do Things With Words by describing a limited category of statements that do things--"performatives"--he later enlarged the category and made its boundaries much less clear by acknowledging the frequency of "indirect performatives," i.e., statements that might appear to be merely descriptive but in context can be shown to be in fact doing something.[9] Some have since argued that in a sense all utterances are performatives.

None of which is to suggest that a subtle verbal snub is identical to punching someone in the nose. We do not call trespassing on someone's lawn and shooting them identical, though they are both categorized as violations, as coercive. When Stanley Fish argues that speech in everyday life should not be imagined as if it takes place in "the sterilized and weightless atmosphere of a philosophy seminar,"[10] or when Matsuda et. al argue that words can wound, the argument is not that every slight or insult ought to be treated as if it were assault and battery.[11] What they are criticizing is the belief that there is a fundamental, categorical dichotomy between speech and conduct, that the dichotomy is clear and generalizable enough to form one of the principle structures of our law and democracy.

All this points to a deeper critique of the marketplace metaphor. The metaphor implies that linguistic exchanges, like market exchanges, take place between individuals who, in the absence of some outside interference, exist merely as individuals, not as persons in particular contexts with particular backgrounds. These are the famous abstract individuals of legal liberalism, the persons referred to as "A" and "B" in law school lectures on contracts: persons bereft, in legal liberalism's ideal world, of gender, class, ethnicity, history. People the world over, the marketplace metaphor suggests, all share the characteristics of being in essence rational, self-interested individuals, inherently active and desirous. Language use, then, is a matter of expressing pre-existing interests; it is a tool used by individuals to buy cheap and sell dear in the marketplace of ideas. Language is something one uses.

But, according to at least some schools of linguistics and language philosophy, language is also something that happens to us, something that "speaks us" as much as we speak it. Language is an inherently collective, social precondition to individuality. Most definitions of language exclude any notion of a language possessed by only one individual; for language to be language it must be shared. People do not choose, after all, their first language; in a sense it chooses people. And the particularities of the language that chooses people, many would say, in turn shapes their consciousness, their sense of what counts as reason, their perceptions of the world and their selves within it, even their desires.[12]

This is not to imply, however, some kind of simple social determinism. Here is where the linguistic turn in philosophy suggests something very different from the common assertion that individual behaviors are "caused" by social structures. For one of the central discoveries of linguistics and language theory is what Barthes called "a paradoxical idea of structure: a system with neither close nor center."[13] Except for analytical purposes, linguistic structure does not exist outside of anyone's use of it. Language is certainly structured, in some sense of that word; linguistic grammar is the central example of structure, although scholars have brought to our attention many higher-level structures like linguistic style. But that structure is not simply some kind of exterior constraint, a Hobbesian limit on individual action; it is not the "structure" of, say, Durkheimian sociology or orthodox Marxism. It is dynamic, changing, and creative. As Chomsky pointed out, one grammatical system is capable of generating an infinite variety of sentences. And grammar is a practical, thoroughly collective human accomplishment, not an exterior system imposed upon individuals by a reified "society." It is enabling as well as constraining: linguistic structure is a precondition of self-expression, not just a limit to it.

Language thus troubles both legal liberalism's happy vision of rational individuals and its dark side, its Hobbesian view of society as the basic constraint on individuals; it calls into question the marketplace metaphor's notions of both individual freedom and social order. The attraction of the marketplace metaphor in law is much the same as the attraction of marketplace theory itself: it posits a realm that is both free of arbitrary constraint, and yet ordered by the certain yet neutral and unequivocal rules of the marketplace. What the fact of linguistic structure calls into question is not merely the "freedom" of linguistic exchange but also its certainty, its divisibility from "arbitrary" external restraints and interference.

When MacKinnon argues that pornography is a form of action, not of speech, or when Matsuda argues that the context of racism and the subjective experiences of minorities in the U.S. ought to be a primary consideration in the creation and interpretation of hate speech laws, in the long run what motivates these scholars is not just a desire for specific exceptions to an otherwise intact First Amendment doctrine.[14] The suggestion is not simply that pornography is so damaging, or that the specific horrors of slavery and its legacy of racism so evil that unusual exceptions to free speech protection are called for (though the evils of rape-culture and racism very well might be the most urgent problems in the U.S. today). Rather, the suggestion, at least implicitly, is that the evils of rape-culture and contemporary racism force us, or should force us, to fundamentally reconsider how American law thinks about freedom, speech, and their regulation.

Furthermore, the critique of the oppositions that underpin free speech law such as speech and action, rules and context, or politics and law, need not be read as a simple denial that any differences exist. It is obviously not the case that there is no difference between slighting someone with a racial epithet and hitting them in the head, or between decisionmaking in courts and decisionmaking in legislatures. The argument is rather that these differences are neither clear nor generalizable enough to coherently underwrite a system of decisionmaking that claims to be able to transcend context and achieve the neutrality that is the goal of law in the first place.

Inquiry does not come to an end when one accepts the criticisms of the formalist First Amendment framework, and acknowledges the inevitability of politics and context. Stanley Fish's quip notwithstanding, there is such a thing as free speech. If something is not what we think it is, it does not follow that it does not exist. Free speech is one of the major and most influential political and legal discourses of this century; for better or worse, it has helped make American society, our world, what it is. So the task is to rethink the character of free speech, to specify its historical context and political incidence. This is a large task; here I can only speculate about one aspect of the historical context of free speech, its relation to notions of the rule of law, and one aspect of its political incidence, its relations to social class.

The concept of a neutral, objective system of law that transcends politics is not just an abstraction important to lawyers and judges. (Lawyers and judges, in fact, are often acutely aware of just how political and unstable legal interpretation can sometimes be on a day-to-day basis.) A faith in the neutral rule of law is an important element of American culture, of the popular imagination. Evidence for this can be seen in the way that legal institutions and documents are more often celebrated, more often used to define American democracy, than political institutions and accomplishments. One might think, for example, that in an electoral democracy the most important historical event, the event most widely celebrated, would be the extension of the vote to the majority of the population. Yet most citizens do not know the amendment or the year in which the vote was extended to women, much less the history of the long political struggles that led to the passage of the nineteenth amendment in 1920. On the other hand, the Constitution is regularly celebrated in fora ranging from scholarly conferences to reverential Philip Morris ads, even though that hallowed document underwrote a legal system that upheld slavery for three quarters of a century, excluded women from voting for more than half a century after that, and did not come to rigorously protect political dissent until about fifty years ago. Nonetheless, American culture tends to worship the Constitution and remain ignorant of the history of universal suffrage. The story of the Constitution is a story of law, whereas the story of women's suffrage is a story of protracted political struggle. And in some ways, at least, mainstream American political culture worships the former more than the latter.

What is the substance of this worship? What makes law neutral, and how does it support democracy? The short answer might be that if a society makes its decisions according to fixed rules instead of individual or collective whims, individuals will be less able to gain systematic advantage over others. The long answer would involve an extended and controversial discussion of a large chunk of the literature of legal theory and political science. But there is a mid-range answer based in historical observations, which suggests that in the U.S. two patterns of argument or logics have tended to shape legal decisionmaking, particularly in this century. One logic has been called alternately formalist, classical, bright line, rule-based, or simply legal justice; the other, standards-based, revisionist, policy oriented, realist, or substantive justice.[15]

Arguably, the First Amendment has become the centerpiece of the American faith in the rule of law in this century, and not coincidentally, First Amendment law is also highly formalist. Formalism is not simply absolutism, a belief that there should be no exceptions. It is more a way of thinking about what law and legal interpretation are and how they work. (Describing the ACLU's position on the First Amendment as "absolutist" is thus a bit of a red herring.) In at least many of its variations, formalism involves the claim that law is apolitical and neutral because it rests on a rigid, formal model, based on an ideal of axiomatic deduction from rules and unequivocal, "bright line" legal distinctions. The role of law, then, is to locate and uphold clear boundaries--bright lines--between the rights of individuals and between individuals and the state. Legal language and legal expertise are thought valuable precisely because they provide fixed, rigorous meanings unsullied by the political and social winds of the moment. Given a certain set of legal rules and a certain legally defined situation, it is assumed, a properly trained judge or lawyer, within certain boundaries, can use expertise in legal language and reasoning to arrive at, or at least approximate, the correct interpretation, which is generally a matter of pinpointing exactly where the boundaries lie.

Policy oriented decisionmaking, in contrast, tends to be context sensitive, accepting of blurry boundaries, functionalist, and messier. It is also much more common in legal decisionmaking than popular wisdom would suggest. In policy argument, justice is thought to be best served by subtle, well-informed analyses of particular contexts and judicial "balancing" of competing interests and principles; rights and values are treated, not as hard rules distinguished by bright lines, but as general standards that can be differentially implemented according to context. Administrative law, such as that involved in enacting the Federal Communication Commission's public interest standard for broadcasters, is a classic example of policy oriented decisionmaking. Brown v. Board of Education also includes some exemplary policy argument.

Policy-oriented decisionmaking sometimes is justified in terms of head-on attacks on formalism of the type associated with the critiques of free speech just discussed. Both in practice and in theory, the argument goes, the supposedly "bright line" distinctions upon which formalism is based are rarely if ever as bright as imagined. Stanley Fish's polemic, "There is no such thing as free speech," is a recent example of such a critique, but in some ways his position echoes, for example, Felix Cohen's legal realist argument earlier in the century, in "Transcendental Nonsense and the Functional Approach."[16]

It is important, however, that outside the academy policy-oriented legal decisionmaking has been justified less by theoretical criticisms of formalism as a whole and more by a sense that, in certain limited and specialized contexts, policy-oriented decisionmaking is simply practical. Formalism seems to be the place our culture celebrates the ideal of the rule of law; policy argument seems to be the place where most of the detailed legal work of ordering society goes on. Policy argument dominates largely in domains unrelated to communication: the law of corporations, environmental law, urban planning, and so forth. The prominent example of policy logic in communication is probably government licensing of broadcast stations according to the public interest standard. Licensing was originally created because communication by radio waves was understood to be characterized by spectrum scarcity and other complicated and contingent technical matters, such as rapidly evolving technologies and strategic needs of the military. Treating broadcasters differently than newspapers was thus thought to be simply called for by context, not because there was thought to be a formal right or principle at stake such as the public's right to access to communication.

It is sometimes suggested that policy arguments began to replace formalist ones in legal argument somewhere around the turn of the century, and formalism was finally defeated with the end of the Lochner era in 1937. On the level of legal metatheory, there may be truth to this, but it remains the case that in practice both logics remain today. Sometimes the two logics are associated with competing sides in a legal controversy. The argument that television violence ought to be censored because its measurably harmful effects on children outweigh considerations of free speech is a typical policy argument; arguing against such censorship because it would open the door to more serious restrictions of freedom of speech is to lean in a formalist direction. But the two logics are also often mixed in the context of any given argument. Conservatives argue that broadcast licensing violates free speech rights but also is inefficient in the context of new technologies; liberals argue that guarantied citizen access to mass communications would be beneficial for industrial society but also should be treated as a "new First Amendment right."[17]

So it is perhaps the case that what has been changing over the years is not simply a shift from one kind of argument to the other, but a shift in the "mix" of the two, a shift in how the two kinds of argument have been used in which cases. And here the historical literature suggests that, gradually in this century, the focus of formalist argumentation has shifted from the realm of property and contract to free speech. Up through the late nineteenth century, during what Mensch calls the classical era of jurisprudence, property was the central, formal right; in theory property was celebrated as the essence of legal liberalism, and in practice it was used aggressively in a wide variety of areas. Property rights were invoked to justify bans on speaking in public parks, the picketing of factories during union drives, and turn-of-the-century social legislation. Gradually, this formalist application of property fell out of favor, and met its final demise in the 1937 overturn of Lochner, during the New Deal.[18]

Perhaps it is not entirely coincidental that, as formalist notions of property declined, the formalist understanding of free speech rose. In a familiar history, the First Amendment was gradually elevated to its current legal status, both in case law and in the popular imagination. What has triumphed in this period is not a policy-oriented understanding of free speech (in spite of the best efforts of a long line of scholars from Alexander Meiklejohn to Sunstein, but a rigidly formalist one. So today, property rights advocates who would like to see a return to something like the Lochner era interpretations of property, like Richard Epstein, argue that the rules applied to free speech should also be applied to property. Conversely, from somewhere towards the other end of the political spectrum, Cass Sunstein has called for "A New Deal for Free Speech" wherein the 1930s revisions of property law be extended to communication.[19]

Why has formalism in legal discourse shifted from property and contract to free speech? At this point, I can only speculate. It's possible to put a cynical economic interpretation on the shift: Formal interpretations of property were abandoned because they became increasingly impractical in the face of the bureaucratic corporate form of business and other late nineteenth and early twentieth century economic developments. Conversely, the soap box speakers became sanctified in law precisely during the historical period that they ceased being effective. In the nineteenth century, union organizers, pacifists, and other "radicals" all made good use of the soap box--of face-to-face speaking in public places--as a communicative tool, and were regularly arrested for doing so. In this century, however, the key to popular communication has become access to radio, television, and other expensive technology-based mass media, which have rendered the soap box increasingly irrelevant as an organizing tool. A formalist interpretation of the First Amendment grants symbolic protection to soap boxes while in practice protecting media corporations much more effectively than dissidents.

Such an account of the shift, however, risks a functionalist tautology (explaining historical events in terms of the needs they serve for the power bloc) and fails to account for the imaginative power of First Amendment formalism. So a more comprehensive explanation might add two observations. First, from a distance, formalism is satisfying to a legal liberal vision of the rule of law, whereas policy argument can appear as arbitrary, obscure, and haughtily technocratic. College sophomores have little trouble understanding why it might be good for the rule of law to protect Nazis marching in Skokie, but it takes a lot of effort to convince them of the grand principles at stake in, say, the regulation requiring TV stations to charge political candidates the same rate for advertising time they charge their most favored advertiser instead of their standard rates. Second, from up close, from the perspective of those involved in everyday, small legal decisions, formalism is frequently impractical, whereas policy-oriented decisions seem reasonable and pragmatic. Few suburban homeowners would take kindly to the suggestion that their neighbors should be allowed to raise pigs or let their lawns go to weed on the grounds that to do so would be to uphold the sanctity of formal property rights.

It seems to be the case, then, that the American polity seems to want a legal system that can satisfy both the desire for legitimacy provided by formalism and the "practical" effectiveness of policy-oriented decisionmaking. Perhaps, therefore, the formalist interpretation of the First Amendment became popular in part because it came to take property's place as a symbol of legal clarity and formal justice. In both the popular and legal imaginations, the image of the property-holding yeoman farmer was gradually supplanted by the soap box speaker as the central archetype and emblem of legally protected exercise of rights and freedoms in a democratic society.

1. Labor and Management

The polity, however, is not the public. The community of individuals who appreciate the formalist interpretation of free speech may include a wide range of people, such as lawyers, judges, politicians, journalists, professors, and many others in positions to directly or indirectly influence legal and political consciousness. And it includes a wide range of political positions: liberals at the ACLU seem to have little trouble agreeing with conservatives on the Supreme Court that flag burning is protected speech. But it certainly does not include everyone. The majority of the American public has a hard time seeing the justice of protecting flag burning. And this may not mean simply that the public disdains free speech. The ACLU reports that the majority of the complaints it receives come from workers who feel their speech has been restricted by their bosses--a kind of speech that the Supreme Court and the ACLU agree is not protected.

Elizabeth Mensch has remarked that, although many formerly bright lines have been blurred in twentieth century law, the boundary between capital and labor remains as bright and impermeable as ever.[20] The First Amendment, as it is currently interpreted, protects owners and managers more than individual speakers. It prevents government agencies from interfering with the speech of private agencies delineated by boundaries of ownership and management, not by individual human beings.

As a result, employees have basically no free speech rights with regards to their employers, including employees of media businesses. When a journalist is told by an editor to drop a story because it is politically inflammatory, the journalist can find little comfort in First Amendment law. Network program practices departments engage in systematic and thorough censorship of scripts for television series with all the zeal (if not the same principles) of Communist Party apparatchiks. Under law, there's a sense in which A. J. Liebling's bon mot--that the only freedom of speech in this country is for those who own one--is literally true.

For all that, Liebling's quip is an oversimplification. There are many limits on the power of media owners to influence content, such as the resistance of the community of professional journalists to owner manipulation on both ethical and self-interested grounds. Evidence suggests that, among some groups, there probably is a popular ethic of free speech in the U.S. that extends beyond the powers of owners and managers. When conservative newspaper tycoon Rupert Murdoch bought the left-wing Village Voice and tried to dismiss its editor, for example, the threat of a staff walkout forced him to back down, and he left the paper's editorial content alone thereafter.[21]

2. Social Class and Linguistic Style

Bringing "popular ethics" into the discussion, however, brings us back to the second question suggested by Gates' examples: why does it seem easier to pass rules prohibiting direct racial epithets than elaborate, formal statements? It is well established that linguistic style is associated with social class. Sociolinguist Basil Bernstein demonstrated that children from middle and professional classes tend to do better in school than working class students in part because they speak more often and more fluently in formal style, or what Bernstein calls "elaborated code." Working class students, in contrast, tend to be more comfortable, and are probably more fluent in, informal style, or what Bernstein calls "restricted code."[22]

One style is not better than the other. Rather, each style is an adaptation to specific patterns of life and work. Informal style has the effect of stressing membership within a group; it is useful for interactions among people who are familiar with each other and work with each other on a regular basis, and thus live in "dense" social networks, i.e., high levels of interaction with a limited number of people. It has a high proportion of ellipsis and colloquialisms, not because such language is simpler, but because these take advantage of a higher degree of shared knowledge between speaker and listener. Similarly, it has a higher proportion of personal pronouns (you and they) and tag-questions soliciting agreement of the listener (nice day, isn't it?), because these express a sense of cooperation and solidarity.[23]

Formal style, in contrast, is for people whose social networks are less dense, who regularly deal with strangers and thus communicate in contexts in which ellipsis and colloquialisms are more likely to generate confusion than solidarity. Similarly, formal style's high proportion of subordinate clauses, passive verbs, and adjectives (besides connoting high-mindedness through its echo of Latin grammar) are adaptations to the need to explain details comprehensively when speaker and listener do not share as much background knowledge and cannot easily rely on features of the extra-linguistic context. Interestingly, in spite of the frequency of passive verbs, formal style also contains a higher proportion of pronoun "I." This has the effect of imposing the speaker's individuality on the utterance, of stressing her or his unique nature as a person, as opposed to expressing membership in a group. Some research suggests that formal style leads people to be judged as more intelligent, more educated, and less friendly and less likable than informal style.

It is not the case that working class people use only informal style and middle class people use only formal style. A garage mechanic will probably shift to formal speech when dealing with a customer irate over a bill, and only the most hopelessly pompous college professors use formal style when speaking with their friends and families. But mastery over the different styles is not evenly distributed. Bernstein's work suggests that middle and professional class students' relatively better skills and comfort with formal style functions as a form of what Bourdieu calls "cultural capital," enhancing their life prospects.[24] Given the relation of style to the character of work, moreover, fluency in formal style (though not accent) is probably associated with a person's present occupation, regardless of class background.

What does this have to do with free speech? James Carey has argued that the speech/action distinction in free speech law is an expression of distinctly middle class values and sensibilities. Carey tells the story of a middle class man who enters a working class bar and not long thereafter comes flying out the plate glass window; the man then says with astonishment, "but all I did was use words!" Carey's point is that, to the working class individuals in the bar, words have power. For them, the difference between insulting someone's mother and punching them in the nose is not as obvious or absolute as it is for the middle class person.

Carolyn Marvin has elaborated on these contrasting sets of values in our culture in terms of what she calls "text" and "body":

The First Amendment as currently interpreted is envisioned largely in terms of that which middle and professional class people have mastery over, abstract formal expression in speech and writing. This is why it is harder to censure Gates' first example than the second. Within the community of people who share those values, there is something equalizing about free speech. But it should not be surprising that, for people who do not make a living that way, for workers and other people whose bodies are the source of their value to society, formalist protection of free speech may not make sense, and might even appear as simply another way that people with privileges (such as academics writing about free speech) exercise their power over people who don't.

The analyses and arguments of this chapter do not offer resolutions to all of the many important debates among non-formalist theorists of freedom of speech, such as those between Gates and Matsuda et al. over campus hate speech codes. But it does do two things. First, it tries to clarify some of the underlying principles and issues at stake today in debates over free speech, particularly the inevitability of context and the problems this poses for traditional formalist understandings of the rule of law. Second, it points in the direction of a rethinking of free speech based in context, and suggests two (among many possible) avenues to pursue: the historical shift of formalism from property to free speech and to matters of language and social class in both legal discourse and in nonlegal situations. Clearly, these examples of context-based analysis are intended only to be suggestive. But what they suggest, it is hoped, is that this kind of inquiry, if expanded into rich and subtle contextual analyses, might indeed help resolve some debates and contribute to a more fully democratic, substantive interpretation of the role of free speech in law and culture.

[1]. Henry Louis Gates, "Let Them Talk," The New Republic, Sept. 20 & 27, 1993, pp. 37-49: p. 45.

[2]. "Style" is the generally accepted sociolinguistic term for language varieties that can be classified on a continuum for formal to informal. The word "code" is used by Basil Bernstein, Class, Codes And Control, 2d edition (Boston: Routledge & K. Paul, 1974).

[3]. William Labov, "The Logic of Nonstandard English," in Giglioli (ed.) Language and Social Context (Penguin, 1972), pp. 179-216.

[4]. For a sociolinguistically informed analysis of the role of linguistic style during arrest and interrogation see, Janet E. Ainsworth, "In a Different Register: The Pragmatics of Powerlessness in Police Interrogation," Yale Law Journal, 103 (November, 1993): 259-322.

[5]. Mark Kelman, A Guide to Critical Legal Studies (Cambridge, Mass.: Harvard University Press, 1987), p. 12 and passim.

[6]. Barbara Johnson, A World of Difference (Baltimore: Johns Hopkins Univ. Press, 1987), p. 6.

[7]. First National Bank of Boston v Bellotti, 435 US 765, 776 (1978)

[8]. 771 F.2d 323 (7th Cir. 1985), aff'd, <=8> 475 U.S. 1601 (1986), p. 329; quoted in Stanley Fish, "Fraught With Death: Skepticism, Progressivism, and the First Amendment," University of Colorado Law Review, 64 Fall 1993: 1061-1086, p. 1065.

[9]. See Ainsworth, "In a Different Register," note 15: "Austin initially adopts the intuitively appealing assumption that constative utterances, unlike performatives, are true or false. Having set up these opposing categories of performative and constative utterances, Austin ultimately deconstructs this dichotomy" with his analysis of indirect performatives.

[10]. Fish, "Fraught With Death," p. 1061.

[11]. Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw, Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, Colorado: Westview Press, 1993).

[12]. The classic and extreme version of this notion is the "Sapir-Whorf hypothesis" named after linguists Edward Sapir and Benjamin Whorf. For a post-structuralist variation of it, see Rosalind Coward and John Ellis, Language and Materialism: Developments in Semiology and the Theory of the Subject (London: Routledge and Kegan Paul, 1977).

[13]. Roland Barthes, Image, Music, Text (New York: Hill and Wang, 1977), p. 159.

[14]. Catharine A. MacKinnon, Only Words (Cambridge, Mass: Harvard University Press, 1993).

[15]. Elizabeth Mensch divides legal thought into classical and realist or revisionist forms. Duncan Kennedy talks of the distinction between rules and standards. Roberto Unger speaks of "legal justice" and "substantive justice." See Elizabeth Mensch, "The History of Mainstream Legal Thought" in David Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon, 1982), pp. 18-39; Duncan Kennedy, "Form and Substance in Private Law Adjudication," Harvard Law Review, 89 (1976): 1685, pp. 1687-89; see also Roberto M. Unger, Knowledge and Politics (New York: The Free Press, 1975), p. 91.

[16]. Stanley Fish, "There's No Such Thing As Free Speech And It's a Good Thing Too," Boston Review, Feb. 1992, p. 3; Felix Cohen, "Transcendental Nonsense and the Functional Approach," Columbia Law Review 35 (1935): 809.

[17]. For example, Jerome A. Barron, Freedom Of The Press For Whom? The Right Of Access To Mass Media (Bloomington: Indiana University Press 1973).

[18]. Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990).

[19]. Cass R. Sunstein, "Free Speech Now," The University of Chicago Law Review, 59 (Winter 1992): 255; Richard A. Epstein, "Property, Speech, and the Politics of Distrust," The University of Chicago law review 59 (Winter 1992): p. 41.

[20]. Mensch, "The History of Mainstream Legal Thought," p. 26.

[21]. Alex S. Jones, "At Village Voice, A Clashing Of Visions," The New York Times, June 28, 1985, Section B; p. 5, Column 1.

[22]. Bernstein, Class, Codes And Control.

[23]. This survey of Bernstein's work relies heavily on Peter Trudgill, Sociolinguistics: An Introduction to Language and Society (London: Penguin Books, 1983, revised edition), pp. 132-140.

[24]. Pierre Bourdieu, Distinction: A Social Critique of the Judgment of Taste, trans. R. Nice (London: Routledge & Kegan Paul, 1984).

[25]. Carolyn Marvin, "Theorizing the Flagbody: Symbolic Dimensions of the Flag Desecration Debate, or Why the Bill of Rights Does Not Fly in the Ballpark," Critical Studies in Mass Communication, 8, (June, 1991): pp. 120-121.

[26]. Social class is of course a complex construct, and is used here suggestively, not comprehensively or precisely. Marvin points out that the values of "body" in fact extend to and in many ways are exemplified by military personnel, a group which overlaps with but is not limited to working class individuals.

More here:
Free Speech, Language, and the Rule of Law

On Wednesday morning, the French satirical paper Charlie Hebdo was attacked by three masked gunmen, armed with kalashnikovs, who stormed the building and killed ten of its staff and two police officers. The gunmen are currently understood to be Muslim extremists. This attack came minutes after the paper tweeted this drawing of ISIS leader Abu Bakr Al-Baghdadi.

(Best wishes, by the way. Baghdadi: And especially good health!)

An armed attack on a newspaper is shocking, but it is not even the first time Hebdo has been the subject of terrorist attacks. Gawker has a good summary of past controversies and attacks involving Hebdo. Most famously, the magazines offices were firebombed in 2011, after they printed an issue depicting the Prophet Muhammad on the cover.

In the face of such an obvious attack on free speech, voicing anything except grief-stricken support is seen by many as disrespectful. Tom Spurgeon at The Comics Reporter, one of the first American comics sources to thoroughly cover the attack, quickly tweeted this:

When faced with a terrorist attack against a satirical newspaper, the appropriate response seems obvious. Dont let the victims be silenced. Spread their work as far as it can possibly go. Laugh in the face of those savage murderers who dont understand satire.

In this case, it is the wrong response.

Heres whats difficult to parse in the face of tragedy: yes,Charlie Hebdo is a French satirical newspaper. Its staff is white. (Update:Charlie Hebdos staff it not all white. See note below.) Its cartoons often represent a certain, virulently racist brand of French xenophobia. While they generously claim to attack everyone equally, the cartoons they publish are intentionally anti-Islam, and frequently sexist and homophobic.

Here, for context, are some of the cartoons they recently published.

(Yes, that last one depicts Boko Haram sex slavesas welfare queens.)

These are, by even the most generous assessment, incredibly racist cartoons.Hebdos goal is to provoke, and these cartoons make it very clear who the white editorial staff was interested in provoking: Frances incredibly marginalized, often attacked, Muslim immigrant community.

Even in a fresh-off-the-press, glowing BBC profile of Charb, Hebdos murdered editor, he comes across as a racist asshole.

Charb had strongly defended Charlie Hebdos cartoons featuring the Prophet Muhammad.

Muhammad isnt sacred to me, he told the Associated Press in 2012, after the magazines offices had been fire-bombed.

I dont blame Muslims for not laughing at our drawings. I live under French law. I dont live under Koranic law.

Now, I understand that calling someone a racist asshole after their murder is a callous thing to do, and I dont do it lightly. This isnt ambiguous,though: the editorial staff ofHebdo consistently aimed to provoke Muslims. They ascribe to the same edgy-white-guy mentality that many American cartoonists do: nothing is sacred, sacred targets are funnier, lighten up, criticism is censorship. And just like American cartoonists, they and their supporters are wrong. White men punching down is not a recipe for good satire, and needs to be called out. People getting upset does not prove that the satire was good. And, this is the hardest part, the murder of the satirists in question does not prove that their satire was good. Their satire was bad, and remains bad. Their satire was racist, and remains racist.

The response to the attacks by hack cartoonists the world over has been swift. While many are able to keep pretty benign:

Several of the cartoons sweeping Twitter stooped to drawing hook-nosed Muslim caricatures, reminiscent of Hebdos house style.

Perhaps most offensively, this Shaw cartoon (incorrectly attributed to Robert Mankoff) from a few years back swept Twitter, paired with the hashtag #CharlieHebdo:

Political correctness did not kill twelve people at the Charlie Hebdo offices. To talk about the attack as an attack by political correctness is the most disgusting, self-serving martyr bullshit I can imagine. To invoke this (bad) Shaw cartoon in relation to the Hebdo murders is to assert that cartoons should never be criticized. To invoke this garbage cartoon is to assert that white, male cartoonists should never have to hear any complaints when they gleefully attack marginalized groups.

Changing your twitter avatar to a drawing of the Prophet Muhammad is a racist thing to do, even in the face of a terrorist attack. The attitude that Muslims need to be punished is xenophobic and distressing. The statement, JE SUIS CHARLIE works to erase and ignore the magazines history of xenophobia, racism, and homophobia. For us to truly honor the victims of a terrorist attack on free speech, we must not spread hateful racism blithely, and we should not take pride in extreme attacks on oppressed and marginalized peoples.

A call TO ARMS

is gross and inappropriate. To simplify the attack on theCharlie Hebdo offices as Good, Valiant Westerners vs. Evil, Savage Muslims is not only racist, its dangerously overstated. Cartoonists (especially political cartoonists) generally reinforce the status quo, and they tend to be white men. Calling fellow cartoonists TO ARMS is calling other white men to arms against already marginalized people. The inevitable backlash against Muslims has begun in earnest.

This is the worst.

The fact that twelve people are dead over cartoons is hateful, and I can only pray that their attackers are brought to justice. Free speech is an important part of our society, but, it should always go without saying, free speech does not mean freedom from criticism. Criticism IS speech to honor free speech martyrs by shouting down any criticism of their work is both ironic and depressing.

In summary:

Nobody should have been killed over those cartoons.

Fuck those cartoons. ________

Update by Noah: Jacob initially stated that Charlie Hebdos staff is white. In fact, CH did have non-white staffers, including copy editor Mustapha Orrad, who was murdered by the terrorists, and journalist Zineb El Rhazoui. Jacob said that his point was that Charlie Hebdos chief editor was white, and that The controversial cartoonists being mourned as free-speech martyrs are all white men. For all HU posts on Satire and Charlie Hebdo click here.

Tags: Charlie Hebdo, Jacob Canfield, racism, Satire and Charlie Hebdo Roundtable, terrorism

See more here:
In the Wake of Charlie Hebdo, Free Speech Does Not Mean ...

"We don't torture... We freedom tickle." - John Stuart

"If I truly wanted to match Bush's accomplishments, I would max out my credit card, take out a second mortgage and steal my mother's Social Security. Instead, I'll just spend it with my five kids and, in the spirit of the second Bush administration, we're going to rent 'Titanic.'" - Terry McAuliffe

"It's all over but the counting. And we'll take care of the counting." - Peter King

"When people think, Democrats win." -Bill Clinton

"There's a difference, when Lincoln prayed, he talked to God. When Bush prays, God talks to Bush." - Mario Cuomo

"What you fight about is notas important as how you settle it." - Crash N.

"The people who cast the votes decide nothing. The people who count the votes decide everything." - Joseph Stalin

"First they ignore you, then they laugh at you, then they fight you, then you win." - "Mahatma" Mohandas Karamchand Gandhi

There is no way to peace. Peace is the way. - A. J. Muste

Go here to see the original:
The Free Speech Zone

Some Christian lawyerssome eminent and stupid judgeshave said and still say, that the Ten Commandments are the foundation of all law.

Nothing could be more absurd. Long before these commandments were given there were codes of laws in India and Egyptlaws against murder, perjury, larceny, adultery and fraud. Such laws are as old as human society; as old as the love of life; as old as industry; as the idea of prosperity; as old as human love.

All of the Ten Commandments that are good were old; all that were new are foolish. If Jehovah had been civilized he would have left out the commandment about keeping the Sabbath, and in its place would have said: 'Thou shalt not enslave thy fellow-men.' He would have omitted the one about swearing, and said: 'The man shall have but one wife, and the woman but one husband.' He would have left out the one about graven images, and in its stead would have said: 'Thou shalt not wage wars of extermination, and thou shalt not unsheathe the sword except in self-defence.'

If Jehovah had been civilized, how much grander the Ten Commandments would have been.

All that we call progressthe enfranchisement of man, of labor, the substitution of imprisonment for death, of fine for imprisonment, the destruction of polygamy, the establishing of free speech, of the rights of conscience; in short, all that has tended to the development and civilization of man; all the results of investigation, observation, experience and free thought; all that man has accomplished for the benefit of man since the close of the Dark Ageshas been done in spite of the Old Testament. Robert G. Ingersoll, About The Holy Bible

Here is the original post:
Quotes About Free Speech (79 quotes) - Goodreads