Robbins: The limits to free speech
Recently, Trump suffered a Tweetectomy.
“Free speech!” the 29% of you who still like him may have railed.
But … um … not so much.
Indulge me first in a modern fable. As with all fables, it starts like this …
Once upon a time before we all wore masks, shunned each other, and elbow-bumped hellos, we used to go to gyms. Remember them? Slick, shiny places with lots of weights, torture cardio devices, and a soothing sauna?
Like me, maybe you were a lifelong gym rat and part of what you liked about them was the special bonhomie found nowhere other than where men and women sweat together in good cheer.
Despite the idyll of a good workout, every now and then a malign presence — like a special brand of fungus — bloomed from the floormats in the gym; someone who felt free to do or say anything. This sort of person, usually an outsider, found special pleasure in badgering, insulting, and expanding his vocabulary of curse words.
Most times, he is suffered for awhile, and then management steps in. Politely at first, but then sternly, the disruptor is asked to tone it down a couple of octaves. If he does not, at some point, he is unceremoniously shown the door and not instructed how to make it swing back open.
“What about free speech?!” he may inveigh. “Isn’t this still a free country?!”
Yep. So far it is anyway. But free speech only extends so far. And one place it does not extend is in the private universe among which we may include both gyms and the Tweetosphere.
Stated simply, free speech only goes as far as the public commons reaches. And even then, there are limitations.
The First Amendment, which by virtue of its ordinal primacy alone, holds a certain preeminence in legal thought. It is comprised of four sacred touchstones, the second of which (after freedom of and from religion) is the right of free speech (the two other rights assured under the First are the right to peaceably assemble and the right to gripe against the government). For our discussion, the key part of it goes like this:
Congress shall make no law… abridging the freedom of speech, or of the press….”
Look closely here. Like Dr. Seuss’ “The Cat in the Hat,” when it comes to freedom of speech, under its hat the First Amendment has a Little Cat A and a Little Cat B. Freedom of speech has two distinct and separate parts. They are, that Congress shall make no law abridging freedom of speech and that Congress shall make no law abridging freedom of the press. With only the slightest fetters on its journalist ankles, the press may expose, expound and express whatever strikes its fancy, particularly where the object of the ink-stained page is a public figure.
As established in the landmark 1964 United States Supreme Court case of New York Times Co. v. Sullivan, absent “actual malice,” press reports regarding public figures cannot be considered libelous. “Actual malice” means knowingly false or in reckless disregard of the truth. That, then, is the limit. This far, but no further; when the media bleeds in the field of reckless disregard of the truth or knowing falsehood, Katy bar the door!
Personal freedom of speech in many ways is even broader, especially in the political arena. It is a sacred tenet of our democracy for the body politic to suffer the criticism, lambasting, pillorying, and the Noah-Colbert-Kimmel-Fallon-ing of its elected and wannabe officials. Like pilgrims seeking cures at Lourdes, the American psyche salves its choleric humor in giving voice to grievances — both real and imagined — against the standard-bearers of one political persuasion or another. But the right, emphatically, is not absolute.
It was famously said by the distinguished jurist, Oliver Wendell Holmes, Jr., writing for an unanimous court in the 1919 United States Supreme Court case of Schenck v. United States, that, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
In other words, freedom of personal speech is expansive but it is not unlimited. If it unreasonably incites such passions as to threaten the fabric of society, it may be dampened or curtailed.
Which brings us the long way around to the recent Capitol assault, where a large handful of lunatics lost all reason, shouting from the crowd to, “kill” Speaker Pelosi, “hang” Vice President Mike Pence and other sundry and other hateful um… let’s call it “stuff.” Is this the kind of speech which should be stanched? s this speech of such a nature as to present a clear and present danger?
It brings us, too, back to the Tweetosphere. Can this and the grab bag of other private social media companies that banned the soon-to-ex-president choose to do so? In a word, yup.
Whether calling for the heads of certain leaders in a public place is beyond the pale of protected speech and whether the Tweeter-in-Chief can be banned from further mischief might be waters into which the courts may wish to ultimately wade.
For now though, a dense cork firmly placed, might better serve us all.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926-4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com.