April 3, 2007
Defining Free Speech Posted by Joshua Zeitz at 11:10 PM EST Mr. Gordon misses the point when he writes that I do not “deign to inform the rest of us why [he is] wrong to think that ‘Bong Hits for Jesus’ is not in any real sense an exercise of free speech but rather merely the mischievous act of an apparently clever schoolboy.” My argument is simple and falls along standard civil-libertarian lines. Any speech that does not immediately imperil other people (or, to paraphrase Oliver Wendell Holmes, Jr., which is not akin to shouting fire in a crowded theater) falls under the rubric of free speech. For his part, Mr. Gordon argues that some speech is constitutionally protected, while other speech is too silly to enjoy protection. So it’s up to Mr. Gordon—not me—to explain exactly how he would differentiate protected speech from “mischievous” acts unworthy of court sanction. In 1907 the U.S. Supreme Court sustained the contempt conviction of an editor from Denver who had criticized the state judiciary. In his lone dissent, Justice John Marshall Harlan declared it folly “to conceive of liberty as secured by the Constitution against hostile action, whether by the nation or by the states, which does not embrace the right to enjoy free speech and the right to have a free press.” The Court took Harlan’s dissent to heart in 1925 when, in its first use of the Fourteenth Amendment to “incorporate” the Bill of Rights, it ruled in favor of Benjamin Gitelow, a socialist and former New York assemblyman, who had been sentenced to prison for claiming in a public address that social change was contingent on an overthrow of the “parliamentary state.” In Gitelow v. New York, the justices agreed that “for present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairments by the states.” I agree that “Bong Hits for Jesus” does not match either of these cases in political rigor. But this fact mitigates against Mr. Gordon’s distinction between free speech and mischief. If the Constitution demands that we risk the consequences of revolutionary speech to uphold the letter and spirit of the First Amendment, how can we deny the same right to someone whose speech is unlikely to elicit anything more than a few chuckles? The Court famously ruled in Schenck v. United States (1919) that there can be reasonable limits against free speech, but that “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. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” (Italics added for emphasis.) “Bong Hits for Jesus” surely doesn’t threaten the war effort in Iraq. So how can it be banned? And do we want to entrust that decision to a local high school principal? Mr. Gordon’s distinction between the silly and the political also breaks down upon further analysis. In 1931 the Supreme Court struck down a Minnesota law that barred newspapers from making any statement of a “malicious, scandalous and defamatory” nature. In this case, the state had shut down an anti-Semitic newspaper that violated the spirit and letter of the statute. Finding in favor of the paper, the Court ruled simply: “It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment.” Surely political and social satire falls under this ruling. Like Mr. Gordon, I don’t really “get” the “Bong Hits for Jesus” banner. I’m not even sure I find it as clever as he does. I also don’t find certain columnists, comedians, or cartoonists to be funny, clever, or prescient. But surely someone does. And that’s the point. Mr. Gordon wrote off as “cheap” and puerile my suggestion that he look for political work in Zimbabwe or Iran. I intended this aside in good fun, but the idea behind the quip still goes unanswered. Iran and Zimbabwe are run by despots who are all too comfortable with making summary rulings about what is, and what isn’t, protected speech. The United States is governed by laws, and by a written constitution. Is there a place in such a system for the distinction that Mr. Gordon is making between protected free speech and unprotected mischievous speech? If so, who should be the arbiter of whether speech merits protection, and what are the standards that should govern this decision?
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