The Popehat on Free Speech

December 27, 2022 • 10:45 am

I didn’t know that “Popehat” (real name Ken White, a criminal defense attorney and author) has a Substack site, but then again, who doesn’t these days? What makes this all so annoying is that there’s no way to know who has such sites and who doesn’t.

At any rate, I use to read Popehat’s site for free-speech commentary, and now you can go to his site, “The Popehat Report,” which appears to be free. I can’t remember how I found the two articles below, but they’re both worth reading, and you can do that by clicking on the screenshot. I’ll give a brief summary of each.

The article above was written because the quotation in the title is often used to justify new ways to shut down First Amendment speech. In it, White makes two points. First, the exceptions to the First Amendment are well known and haven’t changed in years. Second, the Supreme Court, in its last modification of the First Amendment, said clearly that further changes are unlikely.  In other words, there will be no future amendment that bars hate speech—the subject of much debate these days.

White:

Let’s review the exceptions to government-protected speech, first through the cases and then through a summary:

The Supreme Court has repeatedly listed the First Amendment exceptions. In 2010, in a very important but not particularly well known case called United States v. Stevens, the Supreme Court offered one of its periodic summaries:

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd.502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)—including obscenity, Roth v. United States354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois343 U. S. 250, 254–255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio395 U. S. 444, 447–449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co.336 U. S. 490, 498 (1949)—are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire315 U. S. 568, 571–572 (1942).

So, there you have it: obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. Throw in true threats – which was left out of this list for some reason – and child pornography, and you’ve got the categories. Note that the Court specifically identifies them as well-known and historic, not as in flux.

I was going to add, “What about false advertising?”, but I suspect that it falls under the aegis of “fraud”. Note, too, that “incitement” is not flexible, for it’s been specified this way:

Incitement is a First Amendment exception. But incitement means “speech that is intended, and likely, to cause imminent lawless action.” All of those words mean things, things defined by decades of court decisions. They don’t mean whatever you want them to mean — they specifically don’t mean “saying things that are bad for America on TV.” Might the courts gradually develop their understanding of one of these words – for instance, by developing a broader understanding of “imminence” based on an internet culture? Yes, over time, through a familiar process. But the point is that you must engage the existing law on what “incitement” means to be accurate — you can’t just declare it to mean whatever you want, and expect that to matter in court. The Supreme Court has been saying for almost a century that First Amendment exceptions are “well-defined and narrowly limited.” The fact that the words in the names of the exceptions — like “incitement,” or “threat” — have flexible colloquial meanings does not signify that the legal meaning of those exceptions is flexible. It isn’t.

Note that “fighting words” or “hate speech” do not constitute incitement.  As far as creating new categories, in the U.S. v. Stevens case, the government asked the Supreme Court to carve out a new exception to the First Amendment that prohibits depictions of animal cruelty. The government’s justification was that the court had already created an exception in the form of banning child pornography, so why not another?.  But the Court responded that it didn’t really create an exception, but merely codified what was already a crime—child abuse, seen as inherent in child pornography. The court then said, in an 8-1 decision, that it couldn’t envision any new exceptions:

Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that “depictions of animal cruelty” is among them.

As for why this matters, it’s because of what I said above: courts are always under pressure to tighten the rules of free speech (“hate speech” is the latest proposed restriction), but that won’t happen. As White says,

[This] matters because it’s good for Americans to know, and understand, our civil rights and the powers and limitations of our government. We’re bitterly divided as a nation. Much speech is controversial, much speech is despised by someone. We’re under constant pressure to accept new limits on speech. It’s good to argue about these things. But the argument should be reality-based. “The First Amendment isn’t absolute,” used as a justification for new exceptions, and untethered from the law, isn’t reality-based.

And read this one, too (both are fairly short):

 

Here White distinguishes between three construals of “free speech”, which I’ll characterize in my own words (quotes from White are indented).

a.) Free Speech Rights (“FSR”). These are the rights conferred by the First Amendment—that is, all the speech that isn’t prohibited by law (see above). White emphasizes that the exceptions are likely to be pretty much set in stone and will not be modified to include “hate speech”. He argues—and I agree—that knowing some of the history of the courts’ construal of free speech is useful in keeping your arguments on the rails. And it’s useful to be mindful of the philosophy behind FSR, as outlined in the Stevens case ruling mentioned above:

The First Amendment ’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

You can’t just argue on utilitarian grounds, then, that new types of speech should be considered violations. The First Amendment is based on deontological principles, not utilitarian ones.

b.) Free Speech Culture (“FSC”). This is the principle that, regardless of the First Amendment, speech venues such as private universities and widespread social-media outfits like Twitter and Facebook would be best served by adhering to First Amendment principles even if they’re not obliged to do so. This is is a utilitarian application of FSR:

The next category is “Free Speech Culture,” or “FSC,” sometimes called “free speech values” or “free speech principles.” An appeal to FSC is based on history, philosophy, and political science. It presumes that it’s a social good to have wide-ranging, robust, uninhibited debate on important issues, though it might reach that conclusion by different roads. Some believe that a “marketplace of ideas” inevitably produces the conclusions best for society, some believe that all speech has inherent value, and some (like me) believe that as a matter of humility and consciousness of our limits we should be should be careful deciding that we are so clearly right that contrary ideas shouldn’t be heard. Ultimately FSC is utilitarian — we use it to debate how we ought to act collectively for the healthiest society and the optimal pursuit of knowledge.

Here’s where we debate not whether a private school has a right to disinvite a controversial speaker, but whether as a matter of academic culture it should. Here’s where most debates about “cancel culture” will fall. Carefully separating out the legal “may” from the philosophical “should” helps clarify the argument.

As White notes, FSC can contradict FSR, as when students shout down a speaker. In most places they have the right to do so, just as the speaker has a right to speak, but application of FSC would mandate that the students shut up, let the speaker talk, and then protest either in the Q&A section or by offering non-disruptive counterspeech. That’s what White argues, and again I agree.

c.) Speech Decency (“SD”).  This is speech that truly is hateful, and while it is legal, and even allowed under FSR and FSC, can still be reprehensible—reprehensible enough that the speaker should be called out on decency grounds. White gives one example involving the n-word:

Finally, some debates about speech are about human decency — Speech Decency, or “SD.” I think sometimes that familiar phrase “hate speech is not free speech” is an appeal to SD. It’s a way of saying that there’s an idealized set of speech that may be controversial or disagreeable but ultimately is not cruel and contemptible, and that racist speech is outside of that set.

This is a perfectly legitimate debate. It’s fine to say that using a racial epithet is usually protected by FSR, that in some circumstances it ought to be protected as a matter of FSC (for instance, in allowing “Huckleberry Finn” to be taught to high school children notwithstanding its use of epithets), and that people who use it to belittle and demean ought to be called out as a matter of SD.

Once again, clarity about values helps illuminate the different rights and different interests in play.

In this case the speaker’s intent is usually vital in determining whether he/she has violated SD and should be called out. Using the n-word didactically, as when teaching Huckleberry Finn, or, as Don McNeil of the NYT did, asking a question about what somebody else said (this led to his firing), is not reprehensible and should not be offensive.  In such cases the language doesn’t violate any of the three construals of speech given above.

Another example is “hate speech”, which can be truly hateful rather than offensive. I would defend your legal right to call me a “Dirty Jew who should be gassed”, and even defend the idea that you should be able to say that on Twitter. But I would find it reprehensible, hateful, and deem you a bigot and an anti-Semite.

White justifies parsing speech into the three distinctions mentioned above, and I agree:

Debates that clearly identify FSR, FSC, and SD are useful and sometimes even illuminating. They have the potential to teach people about their civil rights and about American government. They can persuade our fellow citizens about how to balance different interests, or at least clarify how we reach our personal outcomes on difficult social and cultural questions.

Debates that sloppily conflate FSR, FSC, and SD are counterproductive. They tend to misinform people about American civil rights, especially if the listener is not already sophisticated on the subject. They produce some of the most persistent delusions of free speech discourse — like the imagined right not to be offended or the supposed right not to be criticized.

11 thoughts on “The Popehat on Free Speech

  1. My observation is that people who run around saying “free speech isn’t absolute” are seeking to justify censorship.

    1. Two months ago, Newsweek posted a disturbing piece entitled “Most Americans Support Censoring Hate Speech on Social Media”, reporting on a poll conducted by YouGov. Polling, of course, is not always accurate, but there have been other studies suggesting that, on campuses nationwide, many students have come to believe in the importance of restricting (ill-defined) “hate speech”.

  2. >”Application of free speech culture would mandate that the students [and faculty!] shut up and let the speaker talk, and protest . . [through] non-disruptive counter-speech.”
    Just to be clear: Since a mandate must be enforceable to be a mandate, then the owner of the venue must have the power to physically eject the disrupters and, if they are students or employees, punish them in some way consistent with their contracts of enrolment or employment.

    That is all very nicely argued. Good job.

  3. How is incitement defined in practice? If someone reacts to certain speech with violence, doesn’t that in itself prove that that speech incited the violence?

    That would mean that those who want to be violent can thus get some speech banned because they choose to be incited. I don’t think that it works that way, but what is the reason it doesn’t?

    1. If someone reacts to certain speech with violence, doesn’t that in itself prove that that speech incited the violence?

      No, to “incite” an act is to “urge and persuade” people to commit that act. To “incite” violence the speaker must both desire and request violence. Thus, in legal terms, “incitement” is a narrow and clear concept.

      If speech merely leads to or results in violence (that the speaker did not want and did not ask for) then that is not incitement.

  4. “Everyone is in favour of free speech. Hardly a day passes without its being extolled, but some people’s idea of it is that they are free to say what they like, but if anyone says anything back, that is an outrage.”

    Winston Churchill in the U.K. Parliament on October 13, 1943.

    Source :
    https://quoteinvestigator.com/2016/10/14/outrage/?amp=1#f+14580+1+2

    Good to review what we know about what Winnie said in detail but the idea is sound.

  5. FSR, FSC, and SD are good distinctions. For the most part I think that the proper remedy for “bad” speech—meaning speech that is allowed under FSR but is otherwise disagreeable or even reprehensible—is “better” speech.

    Under that view, the best remedy for disagreeable or reprehensible speech on FaceBook or Twitter is speech that *counters* the disagreeable or reprehensible. If people are afraid that “bad” speech spreads virally around the internet but good speech doesn’t, then the people promoting “good” speech need to up their game so that the good speech also becomes viral. We who represent “good” speech (of course) need to become better at getting our message across.

    Censoring speech that is deemed “bad” on the major social platforms does not in fact end “bad” speech. It sends bad speech underground to find its own platform—where unopposed lunatic speech spawns lunatic acts.

  6. Hitchens nailed it in one of his videos when he asked, ‘Who do you trust enough to make these decisions for you?’

  7. I like this article although I would caution that the fact the Supreme Court has declared something protected or unprotected should not preclude an inquiry as to whether the court’s decision was correct, and advocates of banning hate speech certainly will not see it that way. For one thing, if anything, the courts have not been protective enough of unpopular speech, particularly sexual speech. The obscenity exception (which is distinct from the child pornography exception which I obviously support) which states that the government can ban the distribution of materials to consenting adults that the average person (whoever that is) applying contemporary community standards (whatever those are) would find that the work appeals to a prurient interest (whatever that is) and describes sexual activity in a patently offensive way (whatever that means) and lacks serious literary, artistic, scientific, or political value (which is almost completely subjective- many things considered great art by some are seen as frivolous by others such as the work of Duchamp) is indefensible. As Nadine Strossen points out, while political speech is protected unless it is defamatory to a specific individual or is intended to and likely to produce imminent lawless action (notwithstanding Beuharnais v. Illinois which upheld a group libel statute but has been effectively overruled), the Burger Court allowed all kinds of hypothetical future harms to justify the censorship of “obscenity”- a connection to crime (which Burger acknowledged had not been proven) or the possibility that porn stores could not keep children out. Overall, I think that SCOTUS does not always get unprotected speech right. Secondly, the problem is not that advocates of legal restrictions on hate speech misunderstand the First Amendment. The problem is that they do not care about the First Amendment. Richard Delgado’s book on hate speech is subtitled “why the First Amendment should not defend hate speech and white supremacy”, not “why the First Amendment does not defend hate speech and white supremacy”. Ultimately, I think that we can and should make better arguments against banning hate speech than”SCOTUS says you can’t” and advocates of banning hate speech will not be persuaded by this anyway.

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