Professor Thane Rosenbaum Deceptively Carries On The Tradition of Censorship-Cheerleading

Law, Politics & Current Events

There's a traditional column you see repeated two or three times per year. The author and publication may vary, but the basic structure never changes: the column asserts that the First Amendment is not absolute, and that other countries prohibit various types of speech that offend or wound feelings, so Americans ought to as well.

This time the venue for the column is the Daily Beast, and the author is Fordham University Professor Thane Rosenbaum. Professor Rosenbaum wants us to follow the example of France and Israel and suppress more ugly speech, and argues we should rely on unspecified studies that show that speech can hurt.

There is nothing new under the sun. Professor Rosenbaum's argument resembles that of Anthea Butler or Eric Posner. In my series "A Year of Blasphemy," I have examined worldwide blasphemy prosecutions over two years to demonstrate that the norms these academics wold have us adopt are typically used to oppress religious minorities and the powerless under the thin guise of solicitude for feelings.

Scott Greenfield has already cheerfully demolished Professor Rosenbaum's very silly column. I will only address it to discuss just two of the common legal tropes Professor Rosenbaum clumsily deploys in support of an apologia for broad censorship.

First, there's the shoutout to Oliver Wendell Holmes, Jr.:

There is no freedom to shout “fire” in a crowded theater.

Back in 2012 I wrote at length about the context for that Holmes quote. First of all, Professor Rosenbaum — like most Holmes fans — truncates the quote to render it vague. What Holmes actually said was "[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

But more importantly, Professor Rosenbaum — like most who misquote Holmes — ignores the context. To summarize rather than make you read my lengthy post: (1) Holmes made the analogy in deciding a shockingly brutal and censorious series of cases that are no longer good law, in which the Supreme Court gave the government free reign to jail people who criticized or agitated against American participation in World War I; (2) Holmes later repented of that position, undermined that line of cases through decisions he wrote or joined, and articulated a far more speech-protective line of authority that remains the law today, and (3) if you are fond of Holmes' rhetorical flourishes, you ought to know he was the sort of statist asshole who said things like "three generations of imbeciles are enough" whilst upholding the right of the government forcibly to sterilize people deemed undesirable.

In other words, when you throw around the "shout fire in a crowded theater" quote, you're echoing the rhetoric of a tyranny-cheerleader whose logic was later abandoned by everyone, including himself.

Next, Professor Rosenbaum invokes another favorite trope, "fighting words":

Certain proscribed categories have always existed—libel, slander and defamation, obscenity, “fighting words,” and the “incitement of imminent lawlessness”—where the First Amendment does not protect the speaker, where the right to speak is curtailed for reasons of general welfare and public safety.

The "fighting words" doctrine gets thrown around a lot to justify broad speech restrictions. The people who invoke it rarely tell you — and may not know themselves — how narrow it is, and how the courts have refused to extend it.

The "fighting words" doctrine comes from the Supreme Court's decision in Chaplinsky v. New Hampshire in 1942. Fans of censorship like to quote the broader language of the opinion:

There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.

But censors generally don't quote the later language of the opinion narrowing the First Amendment exception:

It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. . . . A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. . . . .

Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.

This is the heart of the "fighting words" doctrine — a prohibition on face-to-face insults likely to cause a brawl. In that sense, it's entirely consistent with the Supreme Court's subsequent clear and present danger doctrine, in which advocacy can only be punished when it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

People who cite the "fighting words" doctrine never tell you how it has been treated in the courts for the last half-century. The Supreme Court has refused every opportunity to rely upon it to uphold censorship, and in fact has consistently narrowed it. It was already narrowed by 1970 in Cohen v. California, when the Court refused to use it to justify punishment of a man who wore a jacket bearing the words "Fuck the Draft." The Court made it clear that the "fighting words" doctrine was narrowed to direct confrontations likely to provoke violence:

This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not "directed to the person of the hearer." Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 309 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U. S. 315 (1951); Termniello v. Chicago, 337 U. S. 1 (1949). There is, as noted above, no showing that anyone who saw Cohen was, in fact, violently aroused, or that appellant intended such a result.

Later, in Texas v. Johnson, the Supreme Court refused to use the "fighting words" doctrine to justify a ban on flag burning:

Nor does Johnson's expressive conduct fall within that small class of "fighting words" that are "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942). No reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.

These cases reveal a common thread running through Professor Rosenbaum's familiar defense of censorship. The line of Holmes decisions he references upheld the government's right to suppress draft resistors and war critics. The cases narrowing the fighting words doctrine — Cohen and Johnson — involved government attempts to suppress criticism of its policies. Professor Rosenbaum and his ilk may attempt to convince you that their project is to defend the feelings of religious and ethnic minorities and the dispossessed. But the most charitable interpretation is that they are the useful idiots of tyranny. Just as the blasphemy norms they endorse are employed to abuse minorities and the powerless, the justifications for censorship they tout have been used to suppress criticism of the state and its power. Read Professor Rosenbaum's closing, and contemplate how his approach to speech would be used by any government we have ever known:

Free speech should not stand in the way of common decency.

Last 5 posts by Ken White

79 Comments

74 Comments

  1. G. Filotto  •  Feb 3, 2014 @9:00 am

    As I am not a lawyer or a US citizen, can you explain if there is generally (or narrowly) a case for extenuating circumstances due to speech? E.G. You are at your child's funeral, some cretin shouting and carrying a placard that says "God hates fags" disrupts it and you punch him in the nose. My understanding is that you would be guilty of common assault, but would the sentencing take into consideration the man's "fighting words"?

  2. Wondering  •  Feb 3, 2014 @9:13 am

    I love that the word "fisticuffs" was used in a document from 1989.

  3. C. S. P. Schofield  •  Feb 3, 2014 @9:37 am

    But, Professor Rosenbaum, if we make it against the law to deny the Holocaust, or wear Nazi uniforms, or display the Confederate Battle Flag, how will we tell which are the assholes among us?

    Seriously; I have always found it useful to note who wore the stars and bars, or the "SS" lightning bolt rune, or the Mao caps. Such people are usually pillocks and frequently swine AND they do the world a favor by literally wearing a badge.

    As for the "we should do as Europe does" argument, I have never found it persuasive. Rather the opposite.

  4. alexa-blue  •  Feb 3, 2014 @9:43 am

    One study is probably this one that got some popular press. Joel Feinberg has noted since 1985 that offense is a version of harm, and articulates criteria for (government) restriction of offensive that, while you may not agree with it, is at least principled (and I understand it to be much more restrained than what Rosenbaum is advocating). As usual, fMRI adds pretty pictures but very little of value to the discussion, and the rest of the article is trash that ignores any nuance on either side of the discussion.

  5. jezza  •  Feb 3, 2014 @9:44 am

    G. Flilotto,

    You would definitely get in some sort of trouble for punching the guy. That sort of speech is protected, but we combat it by other means. There's a bike gang that goes to funerals that have those Westboro fucks "protesting" (on the invitation of the family) and physically block them from getting near. They've been successful in even preventing them from showing up, which I think is far more effective than writing a law to stop it. We stop undesirable speech by shaming or coming together in the way those bikers will.

  6. Bob Becker  •  Feb 3, 2014 @9:52 am

    @CSPS: Had to look up "pillock." Seems a useful term to keep handy.

  7. That Anonymous Coward  •  Feb 3, 2014 @9:58 am

    We can cover the whole world in nerf and make it a better place.
    Restricting peoples use of hateful speech will TOTALLY make them give up their intolerant ways, and not enflame them further. o_O
    Restricting others to make some feel better is a losing game, in the land of free speech.
    I paraphrase Carlin, IIRC, 'Don't worry about the words being used, worry about the intentions of the person using them.'
    Sticks and Stones may break my bones but words can never hurt me.
    Meh, words can sting a little – but the words matter little if the person using them is carrying a bat and is moving in on me.

    I do not expect sunshine and puppies from everyone I encounter, but I care less about if they can use 'fa__ot' against me and more about if they will be punished if they attack me. I don't think the words they used matter more than if they beat the crap out of me. If they have a pattern of beating people, perhaps they should be removed from society longer. Trying to stick a demographic value into it only serves to fuel the anger in some people, and probably makes it worse.

    @G. Filotto IANAL and I think the court would not consider "fighting words" as a viable defense. Of course Westboro would then sue you and the city in civil court to increase their coffers that are funded by pissing people off to where they want to ignore the law. I find that family detestable, but they are allowed to be a__holes if they want to be… it's a free country.

  8. Tarrou  •  Feb 3, 2014 @10:00 am

    As I really can't add to the intellectual demolition, I must invite the good professor Thane to have a long and hearty taint-snortle and hope his feelings aren't hurt to a felonious degree.

  9. Chris Rhodes  •  Feb 3, 2014 @10:12 am

    "But if we don't throw people into cages for expressing opinions we don't like, how will we protect ourselves against fascism???"

  10. SirWired  •  Feb 3, 2014 @10:19 am

    I just don't understand why this is even up for debate… Unlike, say, discontinuing The War On Drugs, we don't even have any uncertainty on the efficacy of free speech… The "more speech" remedy to speech we don't like has served us well for a few decades now. Certainly I don't expect there's any more holocaust denial, violent anti-whatever-ism, etc. here than anywhere else.

    And, as somebody else pointed out, being public about it makes it rather easier for society to ostracize those with distasteful views than if they were "underground", so I imagine it actually inhibits such views MORE than expressing those views would.

  11. SirWired  •  Feb 3, 2014 @10:26 am

    @G. Filotto:
    While technically punching another citizen for saying mean things to you is unambiguously illegal, in practice if charges are pressed at all, the D.A. is likely to, at worst, agree to a token amount of community service as your sentence. It'd be political suicide for the D.A. (who is usually either elected, or serves under somebody who is) to take such a case before a jury; even with an electoral death wish, it'd be very difficult to empanel a sufficient number of jurors who won't say "Dammit; I would have sucker-punched the asshole too!" and then acquit.

    Now, beating the asshole to within an inch of his life… that would be a bit easier (if not trivial) to prosecute. But a slap or a sucker-punch? Not so much.

  12. JTM  •  Feb 3, 2014 @10:28 am

    The more interesting part of Rosenbaum's article is the suggestion that we should reevaluate our "free speech" jurisprudence in light of studies that show words themselves can have harmful effects on people. As Rosenbaum points out, developments in cognitive science seem to show that the "sticks and stones" nursery rhyme just isn't true. If words themselves can cause harm, should we look for a balance that tries to maximize speech while minimizing its harm?

  13. Marconi Darwin  •  Feb 3, 2014 @10:34 am

    jezza • Feb 3, 2014 @9:44 am

    There's a bike gang that goes to funerals that have those Westboro fucks "protesting" (on the invitation of the family) and physically block them from getting near. They've been successful in even preventing them from showing up, which I think is far more effective than writing a law to stop it.

    Seriously? You are advocating the use of physical intimidation and/or force to counter free speech?

    We stop undesirable speech by shaming or coming together in the way those bikers will.

    The former is fine, the latter is definitely worse. What's wrong with just eating at Chick-fil-A instead?

  14. Jacob Schmidt  •  Feb 3, 2014 @10:44 am

    You are advocating the use of physical intimidation and/or force to counter free speech?

    Interesting that you leaped to "physical intimidation." I thought of something similar to the angel action during Matthew Shepard's funeral.

  15. alexa-blue  •  Feb 3, 2014 @10:52 am

    @JTM I agree. My problems with Rosenbaum's interpretation: studies (that I know of) show that psychic pain and physical pain share pathways, but that doesn't mean much. Sugared beverages Educational achievement activates the same pathways as crack, but context is important. And pragmatic concerns: violence begets violence, but speech begets more speech (as long as we maintain clear boundaries between the two).

  16. Marconi Darwin  •  Feb 3, 2014 @10:54 am

    Jacob Schmidt • Feb 3, 2014 @10:44 am

    Interesting that you leaped to "physical intimidation."

    What else should I have leaped to when the preferred solution read " physically block them from getting near. They've been successful in even preventing them from showing up,"?

  17. Jacob Schmidt  •  Feb 3, 2014 @10:57 am

    What else should I have leaped to when the preferred solution read " physically block them from getting near. They've been successful in even preventing them from showing up,"?

    Something similar to angel action. I've been over this already.

  18. Lawrence Statton  •  Feb 3, 2014 @11:01 am

    @Marconi Darwin: I see the WBC Biker Barrier more as an implementation of "But not in my living room." WBC is welcome to speak to anyone who will listen to them from THEIR pulpits, their living rooms, and street corners of their choosing. But when they want to do it in my living room, I reserve the right to lock my door. If I am in a position where I cannot lock the door, because for the day the part of "my living room" is being played by "A patch of land where I'm burying my family member", I think a team of tough guys is a perfectly suitable actor for playing the part of "a locked door."

  19. JonasB  •  Feb 3, 2014 @11:04 am

    Regardless of what Holmes was using the phrase to explain or advocate, the 'fire in a crowded theatre' line is still a valid example of restrictable speech and an important reminder that no right is absolute. Whether the size of the permissible restriction grows or shrinks doesn't change the usefulness of the example for a shorthand.

  20. Peter H  •  Feb 3, 2014 @11:05 am

    As I understand it, the bikers will generally be on the private property of the cemetery or house of worship between the public street where the westboro people are and the family. The bikes are also plenty loud enough to drown out anything anyone is saying outside. Also, they'll usually all hold up large American flags. There are usually enough of them to block out all visual past the flags.

  21. ZarroTsu  •  Feb 3, 2014 @11:09 am

    We should just go ahead and censor anyone who misquotes Holmes for strategic effect in censorship. What could possibly go wrong?

    Also, I think we're missing the real problem. Children should no longer be allowed to wear overbearing clothes, and instead be issued bubble wrap and duct tape to wear until they come of age. I got punched once, and it hurt and made me feel sad. So I'm probably right — nay, I have to be right! Things that make people feel sad are an act against America and its freedom. And words — don't you dare get me started about words! They make people feel sad the most. We should ban words, or else our children will feel sad sometimes. You don't want your children to be sad, do you? DO YOU!? YOU MONSTER.

    A perfect America would be that in which people cannot think or feel.

  22. Dave Ruddell  •  Feb 3, 2014 @11:10 am

    The website of the Patriot Guard Riders:

    http://www.patriotguard.org/

  23. akahige  •  Feb 3, 2014 @11:16 am

    I happened to be watching a 10 year old documentary over the weekend, Imaginary Witness: Hollywood and the Holocaust, in which Thane Rosenbaum frequently appears as a talking head. (I'd never heard of him before.) Interesting to see him in that context discussing the censorship — and sometimes self-censorship — applied to early cinematic portrayals and discussions of the evils of Nazi Germany (early meaning "before the US entered the war") and his position outlined here.

  24. Shachar Shemesh  •  Feb 3, 2014 @11:18 am

    Regarding the Nazi law in Israel: It is, thankfully, not likely to pass. It is badly written, and receives almost unanimous criticism from, just about, everywhere.

    Even if passed, however, I fail to see how it will be enforced. Israel has prohibition on speech that incites violence. I am not aware of a single successful prosecution under that doctrine (though I may be wrong. I am not a lawyer). I doubt this law, even if it passes, will fair any better (or, from a different perspective, worse).

    To make the point, a local Russian speaking channel passed a questionnaire, asking people "Were the Jews the party to blame for the holocaust?". They were making the point that in practice, in Israel, you can ask anything, no matter how outrageous.

    Shachar

  25. Marconi Darwin  •  Feb 3, 2014 @11:21 am

    "Something similar to angel action. I've been over this already."

    Which was to physically intimidate people by circling and blocking them. Hence the necessity of the police to form a barrier to separate them. Perhaps you should go over your cited link again.

  26. WhangoTango  •  Feb 3, 2014 @11:23 am

    Please don't say "free reign".

    I know this is picky and pedantic, but you're clearly intending to use a particular metaphor and you're doing it wrong. It's like someone said "you're like a gorilla in a china shop"; wrong animal, and because of that wrongness the metaphor doesn't say what it originally meant.

    "Given free rein" means undirected, not unconstrained. Sure, "given free reign" parses, and the words generally are relevant to the way that they're used, but the problem is that they aren't just chance-chosen. They're meant to be an allusion to rhetorical style, and they are not right; they are almost-right.

    And, as the man said, the difference between the right word and the almost-right word is the difference between the lightning and the lightning bug.

  27. Marconi Darwin  •  Feb 3, 2014 @11:26 am

    Lawrence Statton • Feb 3, 2014 @11:01 am

    @Marconi Darwin: I see the WBC Biker Barrier more as an implementation of "But not in my living room."

    For sufficient values of "my living room," yes. That living room extended beyond private property. From the link Jacob Schmidt cited

    Romaine Patterson, a friend of Shepard, organized a group of individuals who assembled in a circle around the Westboro Baptist Church protest group, wearing white robes and gigantic wings (resembling angels) that blocked the protesters. Police had to create a human barrier between the two protest groups

  28. TM  •  Feb 3, 2014 @11:42 am

    Even in high school I always thought the primary point of the "fire in a crowded theatre" argument was (and should be) about the consequences of that action. After all, it would be insane to declare that I can't yell fire in a crowded theatre when there actually is a fire. For that matter, I doubt I would be prosecuted if I yelled that instead of "poison gas" were that to be the actual problem, even if "fire" itself is false. Additionally, were there no right to falsely yell fire in a crowded theatre, no actor in any play would ever be able to do so. It's fairly obvious that what should be punished in the "fire" example is not the speech, but the actual causing of harm. The right to free speech is indeed unlimited, but we are responsible for the immediate and foreseeable outcomes of our speech, just as the right to self defense is unlimited (in appropriately free states), but we are responsible for every bullet that leaves our guns.

  29. Jacob Schmidt  •  Feb 3, 2014 @11:42 am

    Which was to physically intimidate people by circling and blocking them. Hence the necessity of the police to form a barrier to separate them.

    Due to the actions of the protesters, of angel action, or as a pre-emptive measure? You've assumed one; is that valid?

    That living room extended beyond private property. From the link Jacob Schmidt cited

    Romaine Patterson, a friend of Shepard, organized a group of individuals who assembled in a circle around the Westboro Baptist Church protest group, wearing white robes and gigantic wings (resembling angels) that blocked the protesters.

    This does not demonstrate anything beyond blocking protesters from private property. Further, Lawrence was discussing a separate incident described by jezza above. "Angel Action" has no bearing on that.

    Regardless of any quibbles, no actions described or advocated need incorporate "physical intimidation"; such is an invention of your own.

    (For the record, the article cited by wikipedia (here) does not describe any acts of physical intimidation either. )

  30. Carl  •  Feb 3, 2014 @12:50 pm

    So many of these calls for censorship amount to "I'm an angry and violent person who can't control himself, and that's your fault."

  31. En Passant  •  Feb 3, 2014 @12:58 pm

    WhangoTango Feb 3, 2014 @11:23 am:

    And, as the man said, the difference between the right word and the almost-right word is the difference between the lightning and the lightning bug.

    In times of dexterity such as these, every expiring writer should have a plague euthanizing those words mounted on the wall above his writhing desk.

  32. Owen  •  Feb 3, 2014 @1:26 pm

    Marconi Darwin:

    I'm not sure what your position is. You seem to simply be stating and restating that the bikers blocking the Westboro people are physically intimidating them, but you haven't explained any further. Let me posit a few questions to try to delineate your position:

    If I block your passage in an aisle in a grocery store, am I physically intimidating you?

    If my five friends and I block your passage in an aisle in a grocery store, are we physically intimidating you?

    If my five friends and I block your passage in an aisle in a grocery store, unintentionally, and we happen to be wearing jackets and vests that say we like to ride motorcycles, are we physically intimidating you?

    If we intentionally, and with the permission of the store owner, block you from accessing the entire produce aisle because because you have a history of abusing the produce, and we happen to be wearing jackets that say we like riding motorcycles, now are we intimidating you?

    Please let me know at which point it became an act of physical intimidation, because I think you're fixating too much on the fact that these people enjoy riding motorcycles and you're forgetting that there is really nothing physical about it.

  33. mcinsand  •  Feb 3, 2014 @2:21 pm

    Owen, you make some good points, and I cannot help but ask about whether the Westboro people were entering via pubicly-owned/maintained routes or through private property. Blocking a road or sidewalk is not the same as blocking entry to my house.

  34. AlanMorgan  •  Feb 3, 2014 @2:58 pm

    You are at your child's funeral, some cretin shouting and carrying a placard that says "God hates fags" disrupts it and you punch him in the nose.

    Bad move. OTOH, making a nice "God hates flags" or "God hates figs" or "Actually, God doesn't mind the homos that much." is perfectly cool.

    I am reminded of the guy who dressed up in a nice pink shirt with a sign of his own. He'd go in front of someone holding a sign saying "Gay sex is sin" and hold up his sign, that said "AWESOME!!!!!", covering just the last word of the other sign.

    This, too, is perfectly cool.

    Failing that, just get a couple of big dudes, dress them up as Hell's Angels or something, and have them hold hands in front of the GHF guy while giving him mean looks.

  35. Patrick Maupin  •  Feb 3, 2014 @4:05 pm

    @AlanMorgan:

    Bad move. OTOH, making a nice "God hates flags" or "God hates figs" or "Actually, God doesn't mind the homos that much." is perfectly cool.

    You shouldn't have to do that at a funeral. Bringing your own team who are not part of the grievers at the funeral to protect the grievers from unwanted speech is a more than reasonable compromise.

  36. naught_for_naught  •  Feb 3, 2014 @4:27 pm

    ~

  37. ShelbyC  •  Feb 3, 2014 @4:37 pm

    Hopefully we never narrow our guarantee of free speech. But if we do, the first thing we should do is make advocating restricting speech illegal. Hopefully, if Prof Rosenbaum's arguments succeed, people like him will be the first ones jailed.

  38. Sami  •  Feb 3, 2014 @4:42 pm

    Well, I also believe that free speech shouldn't stand in the way of common decency, but it's sort of like saying that the right to due process shouldn't stand in the way of not committing crimes.

    Alternatively, that whales shouldn't stand in the way of pedestrians, because the fuck does one have to do with the other, really? Decency has a far broader remit that the things you say.

    I am wondering, though, now. Free speech is all well and good, but… there *is* some kind of recourse to legal consequences for someone who shouts "fire" in a crowded theatre and causes a panic, right?

  39. Christenson  •  Feb 3, 2014 @4:50 pm

    http://www.techdirt.com/articles/20140203/14553226080/judge-slams-prenda-paul-duffy-calls-them-out-lying-duplicitous-behavior.shtml

    Another hammer drops on Prenda Law….thanks SJD and Booth Sweet! [I suppose we are waiting for Malibu Media to suffer the same fate]

  40. Sami  •  Feb 3, 2014 @4:57 pm

    Also, regarding Westboro Baptist "Church" protest:

    I'm siding with the bikers on this one. I am aware of no violent action ever taken by them, and their website and stated mission specifies their intent to use non-violent means.

    Essentially, if you're intimidated out of picketing a soldier's funeral by the disapproving glares of invited guests? That's on you, and serves you right.

    WBC announced intentions to send a deputation to Australia to protest the funeral of the late Heath Ledger, by the way. The Australian government announced, in return, that the members of the WBC were not welcome to enter this country for that purpose, that any signs on that theme they attempted to bring in to the country would not be welcomed at Customs, and that any attempt to follow through on that intention would result in their summary police-assisted deportation.

    You may, as you wish, consider this to be either state oppression of free speech or the "not in my living room" doctrine extended to a national level. Personally I take the latter view. They're *your* pustulent human buboes. We are under no obligation to let them through Quarantine.

  41. J@m3z Aitch  •  Feb 3, 2014 @5:35 pm

    In my series "A Year of Blasphemy," I have examined worldwide blasphemy prosecutions over two years

    I guess it's a good thing lawyers don't need math, but it does encourage me to double-check their billing. ;)

    (I tease because I have no substantive comment on the list itself, just a vigorous nod of agreement.)

  42. jerslan  •  Feb 3, 2014 @6:25 pm

    These sorts of arguments remind me of the Babylon 5 "Nightwatch" story arc. In which a "Civilian" Agency would encourage people to report their neighbors for sedition. These neighbors would then be rounded up and imprisoned with no due process. Oh and the Government shut-down the primary independent news service with a military raid and replaced the anchors with their own propaganda puppets.

    Anytime someone wants to curtail free speech… They should watch that story arc. It clearly demonstrates Government Abuse of an illegal policy (I say "illegal" because the Earth Alliance Constitution supposedly protected free speech & freedom of association in a manner similar to the US Constitution).

  43. Lawrence Statton  •  Feb 3, 2014 @8:02 pm

    @Sami: You are my new Internet Hero for "Pustulent Human Buboes" which I shall endeavor to use as frequently as the occasion merits.

  44. Charles Gray  •  Feb 4, 2014 @1:08 am

    One very annoying thing on this is that Professor Rosenbaum, knows the intellectual dishonesty he engaged in with the Holme's quote. I only have an MA in history, so I cannot play at his exalted level, but a big deal is to make certain that you don't imply a primary source says something it doesn't. It's lazy and poor work and the sort of thing that gets undergrad papers returned looking like a box of red pens burst all over them.

  45. Crusty the Ex-Clown  •  Feb 4, 2014 @7:24 am

    Personally, I never miss the opportunity to shout "Theatre!" when I'm attending a crowded fire, although very few seem to appreciate the snark.

  46. Xenocles  •  Feb 4, 2014 @8:29 am

    Sami:

    You may, as you wish, consider this to be either state oppression of free speech or the "not in my living room" doctrine extended to a national level. Personally I take the latter view.

    You can call a dog's tail a leg as much as you want, but despite the labeling you will be disappointed if you expect the dog to stand on it. What you described is nothing more than naked suppression of freedom of speech by your state. You seem proud enough of it, why not claim it more openly?

    The funny thing about government being essentially nothing but force is that occasionally someone else gets to point the gun. It turns out that we're all undesirables to someone else. Prudence suggests that we should exercise restraint for our own safety's sake.

  47. Frank  •  Feb 4, 2014 @10:12 am

    @jezza

    The Patriot Guard Riders are *NOT* a gang. They are a group of volunteers, made up of a large percentage of former military personnel, who come together to stop organizations like the Westboro Baptist Church. This is not all that they do, however. They also provide escorts for the fallen from the delivery of the casket to the funeral home. From the funeral home to the grave site. You name it. In addition, they also frequently meet military members at the air port that are returning from combat duty.

  48. Mercury  •  Feb 4, 2014 @10:52 am

    Nonetheless, the most stringent protection of free speech doesn't and shouldn't protect someone from falsely shouting "fire!" in a theatre and causing a panic. Does Ken actually believe otherwise?

    So, I'm with Holmes on this particular bit of reasoning even if he applied it poorly or inappropriately. 2+2=4 even if you're quoting Hitler.

    Note to SCOTUS: There should be a clear distinction between "fighting words" (and the like) uttered face to face, in a volitile situation in meat-space and the same words published on paper/electronically or remotely where there is no immediate public safety issue.

    The courts haven't always done a great job with First Amendment rulings, even the "victories". For instance I'm not sure I have unlimited tolerance for various forms of harrassment and public displays of idiocy that are labeled "art" and therefore "speech".

  49. AlphaCentauri  •  Feb 4, 2014 @11:03 am

    It's not that Holmes didn't mean you couldn't shout "Fire!" in a crowded theater. It's that he did it in the context of a court ruling that most people would not want to endorse today. So if you think his ruling was wrong, don't use the argument he used in THAT particular case to bolster other arguments.

  50. Mercury  •  Feb 4, 2014 @11:25 am

    But it is a good argument generally (such as: should 1A rights have any restrictions) and in other cases in particular. That Holmes used the argument to defend an abhorrent police action doesn’t void its use in any and all other circumstances.

    But I can easily substitute other nouns, verbs and direct objects to make the exact same point if it will help to actually get the question answered.

  51. JMJ  •  Feb 4, 2014 @12:32 pm

    @Ken

    Just curious…you've written about censorship-cheerleading before. have any of the cheerleaders found your blog posts and responded?

  52. Ken White  •  Feb 4, 2014 @12:48 pm

    @JMJ: sort of.

  53. Terry Firma  •  Feb 4, 2014 @12:54 pm

    With thanks to Popehat, here's an article I wrote about the affair, published at Friendly Atheist. Pretty good discussion below it. http://www.patheos.com/blogs/friendlyatheist/2014/02/04/law-professor-says-free-speech-in-the-u-s-goes-too-far-wants-to-criminalize-causing-hurt-feelings/

  54. Loren  •  Feb 4, 2014 @3:24 pm

    I have always felt that you had an obligation to shout "FIRE!!!" in a crowded theater,…..if it was on fire.

  55. Alex  •  Feb 4, 2014 @3:24 pm

    I graduated Fordham Law a couple of years ago. It's always so "nice" to see this sort of publication associated with my school in a difficult job market.

    As a potentially amusing aside, I saw the following sequence of events recur with several of my classmates:

    1: Realize on the last day of registration that you are 2 credits short of the semester minimum and/or you only have one semester left to fulfill your required writing credit. Panic.

    2: Frantically sign up for Professor Rosenbaum's 2-credit seminar for that semester (usually "Holocaust and the Law") because it is mysteriously still available and is capped at a class size too small to be curved.

    3: Attend the first lecture. (Optional: become embroiled in argument with Professor Rosenbaum during class by questioning the wisdom of criminalizing holocaust denial.) Harbor instant and intense regret.

    4: Attempt to switch classes. When this proves impossible, consider alternate career paths.

  56. Black Betty  •  Feb 4, 2014 @4:06 pm

    Thank you, Ken. I have always detested Holmes. And he should serve as a prime example that members of SCOTUS can be just as tyrannical as any politician. It should also be noted that Buck v. Bell is still considered "good law".

    What a joke.

  57. Sami  •  Feb 4, 2014 @6:57 pm

    @Xenocles: Please explain to me why the Australian Government has a moral obligation to allow foreign nationals to cross our borders for the sole and express purpose of disrupting, offending, insulting and upsetting our citizenry in an extremely tasteless manner.

    We don't filter acceptability for tourist visas through a test on viewpoints on contentious issues or anything like that. Had they just come here and done their protest, it would have been different – although their signs would probably have been confiscated and torn to pieces by angry Australian bystanders, and there would have been quite a lot of shouting. There are things that are Not Done, and they do them as a matter of course… it wouldn't have been well-received.

    However, they announced that their actual, explicit intention was to come here and be offensive. As we are a sovereign nation, we are under no obligation to let any random non-citizen wander in to do as they please; the standing invitation to visit that is generally accorded to US citizens was simply rescinded.

    Australian citizens who wanted to do that stuff… totally different issue. But we don't have people who do that stuff here, and we like it that way.

  58. Lizard  •  Feb 4, 2014 @7:10 pm

    If words themselves can cause harm, should we look for a balance that tries to maximize speech while minimizing its harm?

    I daresay the harm done to someone by tossing them in jail is always going to be greater than the harm done to someone if they hear an idea they don't like.

    Further, this creates a subjective doctrine where the actual content of the speech, or its putative effect on social order, is suborned to the emotional sensitivity of the claimed victim. Assume, for a moment, we measure this via some vaguely objective means, such as monitoring brain activity in areas associated with shame, humiliation, etc. It is hardly unreasonable that someone with significant real world power and privilege might verifiably (by such a device) experience more emotional harm from being exposed to speech they find "hurtful" (such as being called a capitalistic leech upon the working classes) than someone else, a member of a traditionally disempowered group, might feel upon hearing slurs against his ethnicity. Individuals vary greatly in their emotional resilience, after all.

    So if we use the logic of "It's illegal to harm someone with a fist, why should it be legal to harm someone with words?", we can't consider the social or cultural context of the words, but the degree to which the plaintiff felt emotional pain. I doubt this is going to lead to any kind of positive outcome. First, it's usually impossible to know exactly how hurt any given person is going to be by a specific idea. Second, it opens the gateways to criminalizing damn near anything that anyone could sincerely claim caused them emotional pain. There's people out there who will go into mortal shock if they see two men kissing. Their emotional pain, distress, and discomfort is real — they actually feel it.[1] So then what? Tell them "Well, your pain/hurt feelings/distress don't count, because, reasons."? Who decides who "counts"? Who decides whose feelings are to be protected by law?

    [1]I don't particularly CARE that they feel this way, mind you, but I accept that they do genuinely have these feelings. I've found a lot of people would rather tell someone "Your feelings aren't real!" or "You shouldn't feel upset by this!", than to tell them "I believe you are, in fact, genuinely hurt and upset, and that you are not in any way lying about your feelings. However, your emotional distress is not sufficient to get me to change my course of action to alleviate it." It seems bizarre to me that it's more socially acceptable to tell someone they're delusional, or actually lying, when they claim emotional harm (barring strong positive evidence otherwise), than it is to tell them you aren't particularly concerned with their emotional state, but those are the rules of our society. I've long since stopped trying to understand the rules, I just try to learn them and play by them.)

  59. Lizard  •  Feb 4, 2014 @7:11 pm

    In times of dexterity such as these, every expiring writer should have a plague euthanizing those words mounted on the wall above his writhing desk.

    If the doctrine that speech is violence is ever adopted in America, I'm going to find some lawyers and send them after you for that. I think I may be bleeding internally after reading that. Since such a doctrine doesn't exist yet, though, I suppose it's a mute point.

  60. Owen  •  Feb 5, 2014 @11:58 am

    Sami:

    I don't want to comment on moral obligations of a country or anything, but let me posit a scenario for your comment.

    Turkey does not recognize the Armenian genocide. Many government officials in Turkey believe that the acknowledgement of the Armenian genocide is offensive to them personally and the country as a whole. Imagine that Turkey were to ban entry and deny visas for any person who advocates for the acceptance of the Armenian genocide, explaining that they do not have the obligation to allow foreigners to cross their borders for the express purpose of disrupting, offending, insulting, and upsetting their citizenry.

    Is Turkey suppressing freedom of speech by not allowing foreigners to enter if they advocate for the Armenian genocide? Would you defend that exercise of government power as just and proper? Or do you only defend it when the speech is also offensive to you personally?

  61. Xenocles  •  Feb 5, 2014 @3:27 pm

    Please explain to me why the Australian Government has a moral obligation to allow foreign nationals to cross our borders for the sole and express purpose of disrupting, offending, insulting and upsetting our citizenry in an extremely tasteless manner.

    A moral obligation exists because rights exist independent of nationality. If there exists an obligation for the government to refrain from restricting the freedom of speech – and I believe there does – it rests on all governments and on their actions against all people. One of the prices of this right is the sometimes you can't avoid seeing or hearing things that offend you. That's okay, I'm a big boy and I can take it. I guess you think differently of Australia. That's okay too, but it says more about you and your countrymen than it does about Fred Phelps. (Incidentally, I guarantee you that you have people like him. We all know where Mel Gibson is from. They might be lower-profile, but they most assuredly exist. So you are likely infringing on the right of your countrymen to peaceably assemble as well.)

    It's interesting that you can say something like "we don't have people who do that stuff here, and we like it that way" with a straight face, since that is the core of Fred Phelps's vision if you substitute a different set of stuff. Where does it end? Picking your toes? Cutting in line? Bad makeup? Immodest dress? Fornication? Wrong religion? Wrong ethnic traditions? Wrong ethnicity? You tell me, and please show your work.

  62. MBI  •  Feb 5, 2014 @3:41 pm

    @Xenocles and Sami: Yeah, but do free speech rights extend to immigration? Don't governments have the right to use their own discretion on who they allow through their borders? Or is that just another restriction on free speech? I find this an interesting debate.

  63. Xenocles  •  Feb 5, 2014 @3:57 pm

    @MBI-

    To the extent that controlling immigration is a justifiable power of a government it the execution of that power must conform to the boundaries provided by the rights of all people. A government is not within its rights to say "No, go away" for any reason it likes. To be valid the reason for exclusion must accord with the moral duties of government and the limitations on the government's power that develop from them. If a government is morally barred from restricting freedom of speech, then excluding someone from the country for the express purpose of restricting his freedom of speech cannot be allowed.

    Then again, if your theory of government can be summed up as "an it be popular, do as thou wilt," it's a lot easier to justify these ideas. The problem is that it also becomes a lot easier to justify any idea, and there are a lot of bad ones out there.

  64. MBI  •  Feb 5, 2014 @4:38 pm

    That's a compelling and convincing argument. I'm interested in hearing what the other side would say.

    For the record, from what I can tell the United States government also has the power to deny someone entry on grounds of political speech, supported by the Supreme Court in Kleindienst v. Mandel (1972). (I am not presenting this as an argument that the Supreme Court is right, obviously.)

  65. Rick C  •  Feb 5, 2014 @7:22 pm

    So "the Enterprise should be hauled away as garbage" is probably what it would take to trip the "fighting words" rule? And possibly only when uttered to Scotty?

  66. Xenocles  •  Feb 6, 2014 @8:13 am

    @MBI-

    The Court seems to have said a lot of funny things about the border, so that would not surprise me. As you imply, I am not much concerned with their opinions.

  67. proofreader  •  Feb 6, 2014 @12:40 pm

    We only give "free reign" to kings and queens. Everyone else is entitled to "free rein."

  68. albert  •  Feb 7, 2014 @3:25 pm

    Noam Chomsky said;

    "If we don't believe in freedom of expression for people we despise, we don't believe in it at all.”

    Being fallible humans (as we all are), it's difficult to separate our feelings about someones behavior*, and someones personality. It is a bitter pill for many of us, having to support freedom of expression for douchebags and tools**, but swallow it we must.

    The existence of laws ( in 'democratic' countries ) forbidding offending someone is somewhat mind-boggling to me. I would have thought libel and slander laws would be enough.

    Creeping fascism happens in small steps. Some folks don't notice, then one day, they realize that the press is completely controlled, and it's going to be very difficult to get back. (If the MSM is your only source for 'news', you may never notice. That's the real goal of propaganda.)

    I gotta go…

    *perhaps someday, we'll find out it's just a chemical imbalance in the brain.
    **and they never seem to 'get' the Streisand Effect.

  69. Sami  •  Feb 7, 2014 @4:46 pm

    @Xenocles:

    I'm not saying Australia doesn't have bigots. We have people whose views are, indeed, broadly similar to Fred Phelps's – we have (or had, I'm honestly not sure if he retired or died or just hasn't done anything to get attention lately) our own Fred, even. The "Reverend" Fred Nile espoused all sorts of allegedly Christian horribleness.

    He wasn't shut up by the government. He actually ran for office on his horribleness, and to the eternal shame of South Australia found modest success in doing so.

    What we don't have, in Australia, is people who picket funerals. People who wish to spew their bigotry do so in speeches, and in print, and in books and journals, and the rest of us get to call them out for it – I could be wrong, since I'm not from South Australia, but my impression was that his political career faltered because he became a national joke, a byword for reactionary pseudo-Christian bigotry that South Australians found embarrassing.

    (It's worth noting that Australia is very much a majority Christian nation, but is as secular as such a nation can possibly be. We do not like religion mixed with politics. Our previous Prime Minister was an avowed atheist, and our current one is deeply unpopular in part because he's too Catholic. Most of our Prime Ministers have been Christians, just… *quietly* so. In Australian politics, it's okay to be religious, but you don't talk about it.)

    We don't question people's views on any topic to speak of before they come here. People can say what they want when they are here – but certain public statements will attract a hostile public response, because the freedom to say what you want means other people are free to call you a dickhead for saying it.

    Because that's where it ends. WBC have a history of being public nuisances in a way that is inherently offensive. Picketing funerals, using other people's grief as a vehicle for publicity – it doesn't matter what they're saying, it's how they're saying it that is unacceptable.

    If they wanted to pack their signs and stage a protest outside Parliament House, that wouldn't get them blocked out of the country. It would get them counter-protests and lambasted in the media, because the consensus of opinion is not with them, and even our homophobes would be offended if they held up signs saying "God Hates Australia", because this is God's Own Country.

    The "God Hates Fags" signs would probably draw all sorts of comedy responses, because "fags" are primarily cigarettes in this country, and people might just "join" their protest holding up Quit [smoking] campaign signs. BECAUSE COMEDY.

    But they said they were coming to picket a funeral, and so Australia said no. You ask, "Where does it end?" The answer is: there. It ends there.

    We don't generally have people coming here from other countries to protest at us – it's a very long journey from just about anywhere, and people outside Australia don't, as a rule, care that much about what's going on here. I think travelling to another country to protest at it would generally be considered pretty odd behaviour. There's no rule or general precedent about preventing people doing it, though. We do have home-grown protests, although by many foreign countries' standards I imagine they'd seem very small and desultory and pathetic, for the most part.

    But there is a time and a place for holding protests. That time is, as a rule, "when Parliament is in session, or at a time in some way relevant to the thing you protest" and the place is "outside Parliament or in the city's central notable location or at the venue of the thing you're objecting to".

    Funerals? Not on the list.

  70. AlphaCentauri  •  Feb 8, 2014 @10:40 am

    If a country had to allow people to enter to protest, the US wouldn't be able to restrict immigration at all. So we're in no position to tell Australia what to do.

    The WBC doesn't just espouse unpopular opinions; they do so in a way that is a drain on taxpayer funds because of the need for police to protect them and also because they use the courts to sue when they can evoke responses that violate their rights. A country has the right to decide if an immigrant will provide an overall benefit or detriment to that country, if it's going to have any immigration restrictions at all.

  71. Xenocles  •  Feb 8, 2014 @1:47 pm

    You're off base there, AlCent. I did not say that a country had to let anyone in who wanted to protest. I only said that they ought not turn away anyone on the basis of their intention to participate in a peaceful protest. Since this is not a legal brief, I do not feel compelled to delve into the details of what should be considered a protest and what should not be. I trust we can all be reasonable about it and proceed on the understanding that smuggling or looking for work – even if they ought to be permissible on other grounds – are not speech in the sense that we are dealing with here.

    The excuse that the police are needed to cover the protest is laughable. We live in a world where the police aren't even obligated to answer explicit calls for help, and you argue that they bear the burden of protecting people who antagonize people under great emotional strain? Further, why can that excuse not be applied against people already in the country? Surely if money is the problem the taxpaying majority (such as it is) is entitled to suppress the repugnant minority's speech whatever their respective nationalities. (This is the classic perversion of the free rider problem in which someone explicitly offers free rides and then complains when people accept the offer.)

    Finally, I must object that though we are all flawed in diverse and grave ways if we allowed those flaws to silence us nobody would ever be allowed to speak. I do not condemn Australia on this issue. But they are wrong, gravely so, and that is all I need to justify my speaking on the issue.

  72. babaganusz  •  Feb 8, 2014 @6:35 pm

    I must object that though we are all flawed in diverse and grave ways if we allowed those flaws to silence us nobody would ever be allowed to speak

    i fully agree if i have correctly guessed where the commas belong, but… well, dunno if you care whether more than one specific person 'gets it'.

  73. Xenocles  •  Feb 8, 2014 @8:12 pm

    Yeah, wow. I do normally like to strip commas out but that sure could have used some. As to whether I care… I suppose it doesn't change anything important by itself, but I'll certainly take it!

  74. Sami  •  Feb 8, 2014 @11:28 pm

    Xenocles: "The excuse that the police are needed to cover the protest is laughable. We live in a world where the police aren't even obligated to answer explicit calls for help, and you argue that they bear the burden of protecting people who antagonize people under great emotional strain?"

    … you might want to change "world" to "country" there. If you call the police asking for help in Australia, the police will turn up. And the police will also be present at events that draw crowds, because their job is to keep the peace and they like to stop trouble at a point well before "riot".

    I've attended a couple of protests; they were completely peaceful ones, with no counter-protesting involved, so the police presence was limited to about four cops standing a little way away chatting amongst themselves while they watched and listened to the less boring speeches. On the other hand, the annual Gay Pride parade gets police patrolling in force, including some mounted police. They're very friendly and nice, and as a casual attendee of the parade the only interaction I've ever had with them was once asking one of the mounted police for the time (which he provided with a smile and an expressed wish that I have a good night at the parade).

    The police also turn out in force for the Australia Day fireworks show and major sporting events, and things like that. If you are behaving lawfully, they don't intervene at all, but they are there to maintain public safety. (As a rule. I don't think it's technically illegal to be passed out drunk in a park, say, but if the police find someone unconscious for any reason who can't be brought around by a loud, "You all right, mate?" they call an ambulance to take them to hospital, and generally a cop will hang around until they're conscious to check on what brought them to be in that state, but that doesn't, to me, qualify as any kind of arrest, wrongful or otherwise.)

    If there was a protest of the type that WBC like to hold, the police *would* turn up, and if things got aggressive between the protesters and bystanders – which is quite likely – the police would be required to intervene to prevent violence.

    Don't assume that every country operates the same way your own does.

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