THE DEATH OF FREE SPEECH

The past two years has reminded me of John Courtney Murray’s (1960) prescient warning regarding democracy and civil discourse. He wrote,

Barbarism likewise threatens when men cease to talk together according to reasonable laws. There are laws of argument, the observance of which is imperative if discourse is to be civilized. Argument ceases to be civil when it is dominated by passion and prejudice; when its vocabulary becomes solipsist, premised on the theory that my insight is mine alone and cannot be shared; when dialogue gives way to a series of monologues; when the parties to the conversation cease to listen to one another, or hear only what they want to hear, or see the other’s argument only through the screen of their own categories….When things like this happen, men cannot be locked together in argument. Conversation becomes merely quarrelsome or querulous. Civility dies with the death of dialogue. (p.14)

During the same period, Reinhold Niebuhr (1957) warned that “democracy requires not only the organization of political parties, but also a certain degree of mutual respect or at least tolerance. Whenever the followers of one political party persuade themselves that the future of the nation is not safe with the opposition in power, it becomes fairly certain that the nation’s future is not safe” (p.66). To combine Niebuhr and Murray, civil discourse dies in the toxic air of self-righteous and self-certain monologues.

Of course, the current barbarism of political discourse is protected under the First Amendment, perhaps raising questions regarding free speech and its limits. Limits tend to mark out the low territory of vices, instead of virtues needed for a kind of free speech that aims to build up the polis. Not surprisingly, when limits are placed so low, one can expect that political discourse will often seeks its level in the gutter of barbarism.

Even if the current state of political discourse is bleak, most of us believe that the denial of free speech undermines democracy. Yet what about alternative facts? What about the outright untruths of political leaders? What about the denial of science and scientists in favor of beliefs in neoliberal capitalism? And what about the bloviating disrespect toward anyone who disagrees or criticizes the president, including respected jurists? Maybe we need to reconsider free speech and its limits not simply because of the current political miasma, but because the imminent dangers associated with the devastating consequences of both democratic decline and global warming demands it.

Many of us can recall our civic classes where we learned about the limits of free speech with the trope, one cannot yell “fire” in a crowded theater.  I want to consider this from several angles. The most obvious and basic point is that the gentleman is lying and his lying has resulted in harm, as people panic, rushing for safety. The apparent issue here is not lying or that people have missed the show, but that public speech has led to physical harm. The issue of harm in this case is evident, but are we only to be concerned about physical harm that results from lying?  And we might add, what about physical harms that are more subtle, such as poor health resulting from lack of access to healthy foods and healthcare? The latter seems to muddy the waters, because it is difficult to see a direct link from political obfuscations and persons’ poor health. Okay, let’s stay with the former because it seems clearer, but in reality it is not. Consider the lies of President Johnson regarding Vietnam. He yelled “fire” (communism) and over 50,000 U.S. soldiers died, not counting millions of Vietnamese. George W. Bush and Dick Cheney yelled “fire” (terrorism) and thousands died and many more maimed. Trump yells “fire” (Islamic terrorists, illegal aliens), giving license to hate groups while driving innocent people further into the shadows.  If we were to add the various kinds of physical harms done as a result of political leaders having to divert money from social programs to fight wars and uphold the security state, we might extend and further complicate the notion of free speech. How many people suffered harm as a result of not having medical and social services because funds were shifted to the military and security industries? Are only citizens who do not hold high office held accountable for their public yelling “fire”?

We are told that lying is protected speech, except in cases of physical harm. Fair enough, but this overlooks a kind of political harm that results from the deceptions of political leaders and the media. Let’s return to the theater. Once people realize the man yelling “fire” is lying, they will stop panicking. The next time someone yells “fire” in the theatre the crowd may be more wary. They know they have been lied to before. If there is no fire, then all is well and the show will go on uninterrupted. But if there is a fire, then people who are wary may have tarried too long, resulting in people being harmed. Lying in the political realm may be protected speech, but it undermines trust in political leaders and institutions. Our most current president has taken lying to a new low. The website Poltifact has identified the numerous lies this politician (and people of his staff) has made since he began running for office. Of course, the lying may shore up his political base or meet some other political-personal objective, it nevertheless undermines trust not only in him, but in the government. There is clearly political harm to the democracy and society that results from leaders (and institutions) who lie, but should that be an occasion for limiting free speech? If we say no, free speech is actually quite costly to the polis. I add that by limiting free speech vis-à-vis political leaders lying does not mean they can’t continue to lie, it just means that when they do and harm results, they are required to pay some penalty commensurate with the damage. That said, it is doubtful any penalty would suffice for the lies that result in the deaths of thousands of people.

The sociopolitical damage done by political lies is not the only problem with wide latitudes in free speech. Germany has long recognized that speech vis-à-vis the polis must have clearer limits, especially given the racist invectives of Nazis. Germans know in ways that perhaps Americans cannot that racist groups can be a significant danger to the well-being of the polis. Moreover, racist speech, like other forms of hate speech, is filled with lies about the Others. Of course, in the United States, Nazis and other racist groups have the same freedom of speech rights as groups advocating love and compassion. These rights are extended to any bigoted, racist, misogynist citizen, even if he occupies the Oval Office. Given this, I have often wondered if we, at times, tend to split speech from actions. A leader can spout racist remarks and demean women, yet he is not held accountable, as if speech and actions are two different things. In one sense they are distinct. I can say that I would like to kill someone, but that does not mean I will act on this sentiment. Yet, if someone is saying she is going to kill the president, we can be sure that various government agencies will not simply see this as mere speech. It is tricky, but I lean toward saying that speech is action and if one is speaking in a racist and misogynistic way, then that speech as an action is intended to demean, humiliate, etc. Any cursory reading of U.S. history reveals the protection of racist speech that had significant long lasting political, material, and psychological harm to African Americans. This kind of speech may be protected, but it nevertheless undermines the political order.

This does not necessarily mean that I am opting for limits on various kinds of hateful speech, though this should be debated. Instead, I wish to posit that hateful speech in the political realm has consequences, some of which are troubling and harmful, often to the most marginalized persons and groups. Political and other types of public leaders and institutions can find ways to steer clear of hateful, bigoted speech without coming up with laws limiting it. This would mean that leaders would have to recognize and acknowledge that this kind of speech is akin to yelling “fire” in a crowded theater.

We usually think of free speech in terms of what is said, but does free speech extend to situations where a person chooses not to speak? What if there was a fire and the person noticed, but decided not to say a word. Is this not a kind of public lying? Is she held accountable for not speaking? Doesn’t she have the right not to speak?  The answer may be yes, but what about the harm done to theater goers? Are citizens and politicians obliged to speak if there is a clear and present danger? Let’s move this to a political situation—one that impacts people throughout the world. There are rightwing political leaders, including the current occupant of the White House, who have either said nothing about the impact of global warming, have said it is not the result of human activity, or outright denied it. Others have dismissed the science and scientists. In these cases we have people who are not only not saying anything to warn people, they are actually distracting many people. “Don’t worry about the smoke, there is no fire. Continue watching the show.”  “Don’t worry about icebergs. Full speed ahead.” I wonder if people will not look back (if there are any left) on this time and wonder why we did not prosecute political leaders who deliberately lied about global warming in order to advance their own careers and financial gains. They may be exercising their rights to free speech (including not speaking), but their actions are undermining the long-term survival not simply of this polis, but humanity. The consequences of global warming are grave enough to reconsider free speech.

Before ending, I want to stay in the theater and to consider the motive or intention of the individual who yells “fire.”  Intention usually is not considered when we discuss the person yelling “fire” in a crowded theater, but we might be able to discover something about free speech and its limits if we imaginatively enter into the world of this individual. Why would someone yell “fire” in a crowded theater? The person may be sadistic, taking pleasure in the panic and harm of people rushing from their seats. Regardless, there is a kind of carelessness manifested in the attitude and intention of the person yelling “fire.” He does not apparently care about those who will be hurt or killed while stampeding out of the theater. The barbarism Courtney Murray talks about represents a profound lack of care and concern for others. The rampant self-righteous polarization current in our society signifies and promotes carelessness and civil disrespect for those who hold views different from those of one’s ideological-political enclave. To be sure, the harm that results is rarely physical, but the harm to the polis is seen in growing distrust and enmity between political groups, leading to a truly Hobbesian society. While this does not mean altering the limits of free speech, it does raise questions about who will uphold the virtues of care and respect in political speech. I am confident that most political leaders, especially the current president, will not do this, because negative campaigning seems to work.

It is easy to make Trump the target for the kind of lying and disrespect that demonstrates the nadir of free speech today. Yet, Trump is merely the symptom of the polarized, disrespectful discourse that has been rising for the last two or three decades. The Trump phenomenon represents a kind sickness in the body of the democratic polis, the antidote of which is clear. Yet I am not confident the patient will take it, because it is much easier to be hateful than it is to do the work of living out civil virtues that John Courtney Murray and Rheinhold Niebuhr aspire.

Ryan LaMothe, Ph.D, is of Professor of Pastoral Care and Counseling and Editor, Sacred Spaces: The E-Journal of the American Association of Pastoral Counselors at St. Meinrad School of Theology.

Notes.

Murray, J. C. (1960). We hold these truths: Catholic reflections on the American proposition. New York: Sheed and Ward.

Niebuhr, R. (1957). Love and justice. Louisville, KY: John Knox Press.

Source : http://www.counterpunch.org/2017/02/22/fire-and-free-speech/

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