Interpreting Free Speech is always a hot topic of debate, but especially so of late, as the First Amendment has come under attack by the Left as well as the Right. Feminists want to ban pornography that advocates violence against women. Hate speech is being restricted on college campuses. Right here in Charlotte County there is a move afoot to ban a book from the required reading list for a class which includes references to homosexuality. People today are increasingly willing to sacrifice their rights to achieve and maintain order in our society. It behooves us in these repressive times to take a close look at how the First Amendment is being interpreted.
Freedom of speech is a huge topic. Perhaps you've noticed that ministers in general, and this minister in particular, like to pick broad sermon topics. I've been reading the book available from the Charlotte County Public Library by Rodney A. Smolla titled Free Speech in an Open Society[1]. Listen to Smolla's list of the areas covered by the First Amendment's protection of free speech:
...sit-ins, marches, parades, loudspeakers, satellites, sound trucks, billboards, magazine ads, flag-burning, cross-burning, draft-card burning, nativity scene displays, menorah displays, incitements to riot, abstract advocacy of revolution, hecklers, captive audiences, fighting words, profanity, vulgarity, obscenity, indecency, newspapers, broadcasting, cable television operators, telephone companies, computer networks, videotext, teletext, copyright, trademark, labor unions, libraries, streets, red-light districts, topless clubs, dance halls, parks, sidewalks, libel, invasion of privacy, infliction of emotional distress, advertising, speech by government employees, speech in political campaigns, grade schools, high schools and universities.[2]
This list comes from a partial list of all the areas the First Amendment is currently or in the past has been applied. The diversity of this list makes it hard to see how the same method of evaluating free speech could be applied to draft-card burning as well as to topless clubs or computer networks.
Three simplistic solutions[3] have been and continue to be offered as a way to deal with the diversity of speech issues. The first is reading the U.S. Constitution literally: It reads "The Congress shall make no law" which means no laws. This position, labeled Absolutism by Supreme Court watchers, was championed most recently by Justice Hugo Black and William O. Douglas, "without any ifs, buts, or whereases." Simple as this approach is, it is problematic because this interpretation would mean no restrictions on copyright infringement, no ability to sue for libel, no protection against false advertising, no ability to restrict pornography in the evening paper, etc.
The second approach for interpreting the meaning of free speech is known as Historicism, or trying to figure out the original intent of the amendment. Many judges in deciding ambiguous cases strive to follow the intent of the law rather than the letter. There are many problems with this method of interpretation, having to do with figuring out what exactly was in the heads of the framers when they wrote those words. And then we have to talk about each man's thoughts who ratified this amendment. In some areas of free speech there is historical clarity such as political speech. But extended from there, I wager there were many intentions in the minds of the framers and likely no consensus on exactly what freedom of speech meant. And even if there were, it is doubtful if it might extend directly to computer networks or cable TV regulations.
The third major approach used to approach freedom of speech is called "balancing." Balancing is seductively simple: in any conflict between free speech and other social values, the weight of the speech interest is balanced against the weight of the competing interest, and the conflict is resolved under a straightforward cost/benefit analysis.
This approach is simple and offers a complete solution to free speech issues with no internal logical imperfections. This method of interpretation is used in most of the rest of the world where speech is treated like any other social interest like "driving, sexual practices, marriage, divorce, commercial transactions, ownership of property, service in the armed forces, etc."
But is free speech just another social interest competing with other social interests or does it deserve more consideration than that? If it is calculated that Unitarian Universalist voices, being around 1% of the population, are much less important than the Catholic or Southern Baptist voices, our voices and opinions could easily be squelched because the cost of allowing our Satan- inspired corrupting ideas to be expressed far outweighs any benefit for the glorification of God in which we trust. Allowing dissenting voices is often expensive. One of the costly regulations the Reagan administration was happy to discard was the expensive FCC regulation which allowed equal time for opposing views. Haven't heard that lately, have you? Smolla observes:
Under the balancing approach, the government may do more than simply set up "rules of the road" for speakers, to keep order and peace among the speech traffickers; it may declare certain speech commodities "contraband," on the judgment that on balance they do more harm than good.[4]
The problem with balancing is that it greatly strengthens the ability of the majority to censor the minority. And since we as Unitarian Universalists are not a majority of anything, I'd say we should be cautious about advocating this approach.
Because I have a quite limited time to hold forth on a topic on which numerous books have been written and complicated analysis done, I ask your forgiveness for making such short work of these methods of interpretation. In other settings they may be entirely appropriate and useful, but for interpreting the Bill of Rights, the Supreme Court has steered another direction.
Understanding how the Supreme Court interprets freedom of speech is interesting for more people than just professors, civil libertarians and aspiring lawyers. The rules they use have relevancy to the way we conduct ourselves as Unitarian Universalists speaking in this public forum. Justice is of primary importance to U.U.'s. Our desire to be fair to each other and offer a free pulpit to this community hangs in the balance.
Six principles[5] currently govern the interpretation of the First Amendment. The first is the Neutrality principle. Our Government in its effort to regulate free speech may not "pick and choose" among ideas, but must remain "viewpoint-neutral." In the view of this principle, all ideas are created equal. In this view, There is no such thing as an unprotected idea. No idea can be prohibited from being expressed.
The second is the Emotion Principle. The emotional expression used in someone's speech may be found unpleasant or distasteful but this does not limit freedom of expression. Passion or vulgarity does not by itself create an excuse to muzzle the offending speaker. This is not a popular principle by any means as we seek civility in discourse. Since protesters are the ones most likely to attempt to shock with offensive language on T-shirts or cruel parodies such as Rush Limbaugh stages or Saturday Night Live has presented, it is difficult to draw a line based on emotion without tipping into censorship.
The third principle is Symbolic Speech. The Court has decided that not just speech is protected but also actions that communicate a message such as demonstrations, flag burning, and the display of aborted fetuses, distasteful as these may be. In a television age, symbolic speech may catch the eye of the public much more powerfully than any string of words. How many still remember the pictures of the Vietnamese monk who burned himself to death as a protest against the Viet Nam War. Symbolic acts can have great power of expression.
The fourth principle prohibits free expression from causing harm. This includes causing physical harm, such as solicitation for murder or criminal behavior. Libelous speech is prohibited, as is false advertising and fraud. These fall into the category of relational harms. Finally, reactive harms are prohibited, such as the inflicting of emotional distress, invasion of privacy, and in certain settings vulgarity and obscenity when there is intent to harm.
Because the fourth principle is caught up with intent to harm, the fifth principle asserts that there must be a close causal relationship between speech and harm. A criminal may brag that he would like to kill the police chief, but he violates the First Amendment only when he plots to actually kill him and becomes a "clear and present danger."
Finally, there is the precision principle. This principle has to do with an exact detailed description of what is protected and what is not. A law can meet all the five above principles and still be struck down if it fails the precision test. Since I don't understand this one very well, I will say no more about it.
What does all this mean for the discourse in this Fellowship? In our interpersonal relationships, not a lot except the most obvious, the harm principle. I don't know about you, but I don't say whatever I please in conversation. If someone has changed their hairstyle and I don't like the change, or their new clothes do not appeal to me, I will not go out of my way to exercise my right of free speech and let them know exactly how I feel. One of the great errors of the 60's and 70's pop psychology was telling people to let it all hang out. We are all very sensitive to criticism, and uncensored opinions are likely to do more harm than good.
In committee meetings, there is need for freer speech, but one's own desire to speak must be tempered by allowing others to have their say, and by using speech in a way that will advance our cause or will solve the problem at hand. The person who monologues about their opinions and doesn't listen to anyone else is a blight on any form of group process. Conversely, sometimes a person must confront the group if it drifts into unethical thinking or behavior. There are few things as satisfying as working on an effective committee where ideas are exchanged respectfully in a conversation that allows the creation of new ideas which go beyond the thinking of any one person. Dissent in this setting is effective because it attacks not the person but the idea in a respectful way that stimulates new and better ideas. The framers of the First Amendment had a vision of the marketplace of ideas in which the competition between ideas would allow the bad ones to be forgotten and the good ones to gain acceptance.
In committee meetings and in interpersonal relationships, the neutrality principle is difficult and the emotional principle next to impossible. Strange new ideas run up against our prejudices. If someone criticizes us as they present an idea, we are unlikely to give it a fair hearing. There is a big gap between free speech and effective speech. Yet the more we can practice neutrality in our listening and hear around our emotional reactions, the more effective we can be.
There is one place where members of the congregation are encouraged to practice some neutrality. There is one place where the emotive speech is more freely permitted. There is one place where harmful speech should not be found. This one place is where I stand right now.
Of great value is protecting the free pulpit. The prophetic voice is often not the voice people wish to hear. But by hearing a message on occasion when we have lost our way, that calls us to return to what is best and most noble in our nature, is crucial to the health of this Fellowship. In our congregation we extend this right to those who stand up to respond to the speaker's words in this marketplace of ideas. But with this freedom comes great responsibility. And if this responsibility is not held with great solemnity, the free congregation squanders its precious inheritance.
I choose my words very carefully and craft my sermons in front of my computer because of the importance I invest in my words. Some would have me be more free and spontaneous from this lectern, and at times, I may grant myself that freedom. But on the whole, the words I offer you each week are of tremendous importance. I carefully weigh the different images and metaphors to match them to my meaning.
I use words here each Sunday to communicate a Unitarian Universalist message which if taken very seriously by the listeners, if struggled with by the listeners, if integrated into the life of the listeners, will bring transformation, healing, and open the door to greater awareness and realization.
In a sense, Unitarian Universalism is a mystery religion. There are no catechisms to answer the question: "What do U.U.'s believe?" I can give broad guidelines about what U.U.'s believe and who the Unitarian Universalist Association in Boston thinks we are, but to really dive deep into this faith requires challenging one's often unrealized prejudices and assumptions. The free pulpit is an institution that offers both the challenge and invitation to engage in the inner work of transformation; to become a light before the world of faith in what humanity can be and the unconditional value of being an individual.
Let us join together in that work, learning how to be neutral in hearing a new expression, thought or idea, listening to the feelings and to the content of the passionate speaker, refraining from harm with our speech. This practice of free speech will do much to serve ourselves, our community and the world.
Copyright (c) 1995 by Rev. Samuel A. Trumbore, All Rights Reserved.