Speech (Again) - Not Just a Legal Issue

It seems as if the issue of speech is constantly in the news. That, in turn, along with my strong support for speech, results in quite a few posts concerning the issue. Let's start by taking a look at the 2010 Citizens United Supreme Court decision, a 5-4 vote allowing unlimited corporate contributions in support of candidates or causes, so long as there was no affiliation or coordination with those candidates. The Democrats were so convinced that this unlimited spending - on speech - would be the downfall of our democracy. They were so worried, some had supported the rather drastic action of amending the First Amendment's right to speech. (See the 01/23/10 post discussing the Court's decision for further detail.)

In an article by attorney Floyd Abrams in the 10/17/17 Wall Street Journal, Mr. Abrams does acknowledge the involvement of "so-called super PACs" after the decision came down. But most of that money was not from corporations. From 01/01/15 through 12/31/16, Mr. Abrams tells us that only $85 million came from business corporations. $242 million came from unions and trade associations and nonprofits and others. But $1.04 billion came from individuals. (The top three were Thomas Steyer, over $89 million, Sheldon and Miriam Adelson, over $77 million, and Donald S. Sussman, over $38 million. Michael Bloomberg was No. 10 at over $23 million, and George Soros was No. 19 at over $19 million.)

Meanwhile, corporate PACs, consisting of individual employees' money, gave under $1 million in the 2016 Presidential election. As Mr. Abrams points out, businesses generally do not want to get in the middle of political battles, potentially alienating half of their customer base. (Mr. Abrams participated in the oral argument of the case before the Court.) The fears of the Left about Citizens United simply did not materialize.

Now, however, the Attorney General of the US has gotten involved in the issue of speech on college campuses. AG Sessions recently announced a "national recommitment to free speech on campus." He apparently will have the Justice Department get involved in cases where speech rights are denied. In their 10/17/17 editorial, The Los Angeles Times seemed to get it right. First, they comment on the increasingly used argument that "racist or 'hate' speech is a form of violence and shouldn't be tolerated." Then, the Times discounts that argument by concluding "even racist speech, even hate speech, even repugnant ideas deserve protection, because once we say that free expression may be subordinated to other values, someone has to decide exactly which values justify censorship."

However, in the Times' initial editorial on the AG's new commitment (09/20/17 editorial) they were somewhat confused. The Times: "We worry that Sessions' embrace of free speech on campus - and his plan to deploy the Justice Department in vindicating it - might be designed to protect only conservative speech..." Really? If that is a danger, where are all the news stories about liberal speakers being shouted down by conservatives, or being uninvited to speak after accepting an invitation to do so?

That editorial was right, however, about one thing. Trump has often come down on the wrong side of free speech. When, as a candidate, he suggested a change in the libel laws making it easier to sue, he was wrong. When he suggested jail time or even loss of citizenship for flag burning (as odious as it is) he was wrong. When he told the NFL that they should fire those who kneel during the national anthem, he was wrong. The President of the United States should not be telling a private business who they should fire. If he had said that he, like many Americans, was offended by the kneeling and would not watch any more NFL games as long as the kneeling continues, that would have been fine. That is exactly what this writer and many others are doing this football season.

Ironically, while the New York Times hailed the kneelers as "patriots" in a recent editorial (see the 09/26/17 post), they seem not to have the same attitude towards the free speech rights of their own employees. Dean Baquet, Executive Editor, instructed his staff as follows: "In social media posts, our journalists must not express partisan opinion, promote political views, endorse candidates, make offensive comments or do anything else that undercuts The Times' journalistic reputation."

While this post is not about the journalistic integrity of the media, I could give Mr. Baquet a few suggestions that do not impede the paper's employees' free speech rights. (Yes, I know that as a private business they may set the standards for their employees as they see fit. But, Mr. Baquet's order is not what will fix the problem.) First, The Times should acknowledge their Left-wing bias. Second, they should acknowledge their anti-Israel bias (which does generally go along with a Left-wing bias). Third, they should insist that all their reporters and journalists be made aware of their own biases - and determine if they are willing and able to put those biases aside when reporting the news. Finally, the Op-Ed editors and writers should adopt a new standard for their own editorials - no more name calling, no more demagoguery, and no more using guest columnists to express opinions with which The Times agrees, but may be reluctant to express themselves. Here is just one example for editorials - no more referring to wars as Mr. Bush's war or Mr. Trump's war. When our troops are in the field fighting it is the United States of America's war. Clear?

I do not want to end this post before commenting on what may actually be the biggest threat to speech in our society. That threat usually emanates from the business world, when a company employee makes an impolite remark on air or in a written column or in a personal post on social media. Yes, private companies are not required to abide by First Amendment protections for their employees. But every time some employee slips up, intentionally or inadvertently, do we want to see that person lose their job, or even their career? I say no. I say we should all try to be more civil in our discourse - to one another and in discussing the issues of the day. But for those who fall short of that goal, I recommend some tolerance, lest we discourage people from freely speaking their minds.