Pravda: I love free speech; I hate free speech

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Several years ago, when I was in law school, a classmate and I were discussing topics from our Constitutional Law class.  When it came to the so-called “right to bear arms” (the second amendment), he passionately stated, “This right is an individual right, and nobody can restrict it or take it away!”

It just so happened that in the city where he was from, there was an ongoing effort to ban an adult publication, despite arguments from legal scholars that such a ban would violate the free speech clause (found in the first amendment).

When I asked him about that, he replied, “Well, if the majority of people don’t want this publication, then the city should have the right to ban it.”

To which I replied, “Well, what if the majority of people want to restrict or ban the sale and possession of firearms? Shouldn’t the city then have the right to do that as well?”

This example is not being used to argue for or against the second amendment, but to illustrate the still lingering dichotomy often employed by those who interpret and/or rely on the Bill of Rights to support their arguments:  That the rights one strongly supports are so sacrosanct that neither the government nor the majority can restrict or take them away (absolutism), while the rights one doesn’t as strongly support, or even opposes, can be subjected to exceptions, restrictions, or removal (relativism).

This tension between absolutism and relativism even affects individual freedoms, most notably the right to freedom of speech.  Supreme Court Justice Oliver Wendell Holmes once said that the principle behind the freedom of speech clause is to not just protect thoughts one agrees with but also thoughts one hates.

But in practice it is not so simple.

For example, the free speech clause only applies to the government, not the private sector.  This means that employers can (with some narrow exceptions) take punitive action against employees for their speech activities, even if they occur away from the workplace.

This is both a strength and weakness in America:  a strength because a business does not have to suffer a loss to its reputation and/or profits by being forced to retain an employee or client with unpopular beliefs; a weakness because this fear of being fired may impede employees from expressing things that need to be said.

The result is “free” speech in America is costly.  Speech that reaches large audiences is often controlled by advertisers and/or only practiced by people with access to media outlets and the financial security to withstand economic retaliation.

What this has created in America is a turbulent schizophrenia where people condemn economic retaliation against speakers whose messages they agree with, yet demand economic retaliation against speakers whose messages they abhor.

Three examples of this recently erupted in America: 1). The NFL ban on protests during the playing of the national anthem; 2).  Comedian Roseanne Barr’s tweets about former Obama advisor Valerie Jarrett; 3). Comedian Samantha Bee’s comments about one of Trump’s daughters.

The result has been some vociferous debates about hypocrisy and double standards.  Many supporters of Colin Kaepernick, the now banished player who began the NFL protests to highlight racial injustice, probably felt a tinge of satisfaction that Barr’s racially charged tweets resulted in the cancellation of her show.  Many supporters of Barr who believe her show’s cancellation was an excessive penalty are now demanding Bee’s show be cancelled.  Many people who claim offense at the term Bee used to describe Trump’s daughter appear to conveniently ignore the fact that many Trump supporters, like right-wing blowhard Ted Nugent (who Trump invited to the White House), had used the same word to describe Hillary Clinton, and that Trump himself has frequently referred to women in derogatory terms.

The list could go on, but I believe these examples establish the point.

In response to this debate, one commentator argued that perhaps speech should be subjected to a “decency” standard, since “decent” speech usually carries well-thought out messages, while insults and spontaneous tweets do not.

Naturally, one problem with this is who will be the “decency” police to determine what types of speech add substance to the public discourse and what types do not.

Another problem is that so-called “decent” speech might not be powerful enough to accurately convey the threat a particular person or situation poses, or the depth of that person’s evil.  History has shown, time and again, that sugarcoating the deeds of a tyrant (or a wannabe tyrant like Donald Trump) usually does not end well.

Speech must be free to recognize that far too many people who obtain power act and react from their basest instincts, and then develop rationalizations to make their words and/or actions palatable to the masses.

For example, Congressman Peter King recently stated (to a mysterious lack of public outcry) that allowing NFL players to protest racial injustice during the national anthem could segue into some of them giving Nazi salutes.

In addition to the fact King is a well-established idiot, his argument is ludicrous.  In fact, the anthem ban is more akin to Nazism than the protests themselves, because, if there was one thing Nazis did not tolerate, it was any dissent from their perverse brand of “patriotism.”

In fact, when I think about the initial stages of Kaepernick’s protest, the image that comes to mind is not of stormtroopers goose-stepping and saluting in unison.  It is that picture of August Landmesser, the one man in a sea of Nazis refusing to salute Hitler.

Before going further, allow me to state that I am not comparing people who choose to stand for America’s national anthem to Nazis.  I am simply saying that Landmesser made a courageous decision to display his individuality during a time of compulsory groupthink, when such displays could easily be fatal.  What he did represented freedom, the very type of freedom the American flag is supposed to represent.

Hermann Goring once revealed that the true motivation behind compulsory patriotism was so it could camouflage the rise of myopic, obsequious, bellicose nationalism: “The people can always be brought to the bidding of the leaders.  That is easy.  All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger.  It works the same way in any country.”

So when one hears Trump call NFL protesters “sons-of-bitches,” when you see how easily he turned a protest against the institutional racism in America’s legal system into an attack on the military and the country, and when he did this all, not because of any reverence for the flag or the national anthem, but for cheap political gain (as Trump told NFL owner Jerry Jones, criticism of the anthem protests was a “very winning, strong issue for [him]”), it raises disconcerting questions about the direction America is heading.

In fact, years ago, the American legal system, disturbed by Nazi images of intolerant nationalism and compulsory “patriotism,” struck down laws that required children in public schools to salute the flag and recite the Pledge of Allegiance:  As Justice Jackson wrote in the case of West Virginia vs. Barnette, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

Although Barnette only applies to governmental actions and actors, Trump’s involvement in motivating the NFL ban may have actually transformed what appeared to be a private sector action into a government action, and by doing so made this ban a violation of the first amendment.

The “state actor” idea in constitutional law developed largely because people employed by the government, like police officers, were constrained by the protections of the United States Constitution.  For example, to search a home, a state actor required a warrant.  So, to get around this, police officers would sometimes have private citizens conduct the search.

The devastating impact of this was often evident during the civil rights struggles in the American South.  Police departments often acted in collusion with the Ku Klux Klan, and police officers were also often members of this group.  These departments and officers would often provide information to and incite private sector Klan members to attack civil rights workers, while not directly participating in such attacks themselves, thus avoiding any legal liability for civil rights violations.

This caused the law to change so that if state actors, through encouragement or threats, intermingle their activities with private citizens or organizations, then both can be exposed to legal liability for violating rights protected by the Constitution.

As Constitutional Law Professor Garrett Epps pointed out in an article for THE ATLANTIC, Trump has issued numerous demands to the NFL (such as to fire protesters), circulated threats against the tax breaks the NFL now enjoys, and has even taken credit for the NFL’s refusal to hire Kaepernick-a claim now bolstered by evidence that numerous NFL teams consider Kaepernick talented enough to be a starting quarterback.

Columbia Law Professor Tim Wu adds this: “I’d say that when the president orders a private entity to censor someone, and they do, the state has acted in constitutional terms.  This is, to my mind, all about what happens when the White House commands or demands private censorship.  It has been a signature move of this administration-to order this or that private entity to fire someone for their speech, or begin [to] enforce the President’s preferred speech rules, etc.  It is sort of outsourcing censorship, or censorship by proxy and I think it has begun to reach constitutional concern.”

So, people of the United States, regardless of what you think about Bee, Barr, or Kaepernick and the national anthem protests, you should all be concerned that America is on the brink of tyranny and its most basic freedoms are under siege.  If you remain silent too long, you may no longer have the freedom to legally say anything about it.

David R. Hoffman, Legal Editor of Pravda.Report

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11 COMMENTS

  1. JZ, every publication has a comic section, shrimpies section belongs there, IanG is right, shrimpies comments on the killing of ‘jerries’ is disgusting. He probably has a framed photo of ‘bomber harris’ on his wall.

  2. Yeah, I have to keep my mouth shut about the royal family and the less than glorious episodes of British military history because people react very badly to such criticisms. In the past I have been physically threatened for criticising the British Army’s presence in Afghanistan – I didn’t criticise the troops, I criticised the policy that sent them there, but still, people took it as ‘failing to support our boys’ and got very angry with me. I also got threatened after making a joke about the birth of the first child of Prince William. I get really embarrassed by the jingoistic racist crap that Shrimpton spouts, I wanted to slap the idiot when he wrote that the RAF bombing of Germany was a ‘glorious slaughter’ and lamented that we didn’t kill enough German civilians. Britain and America are equally guilty, Britain was the host and mercenary force for the cabal for 200 years then the baton was passed to the US. For instance, Britain’s behaviour in the 1857 Indian Mutiny rivals anything the US did in Vietnam for sheer murderous racism and the records of Kitchener’s Sudanese Campaigns of the 1890s are still sealed because the behaviour of his Anglo-Egyptian army was so bad; they committed genocide, they defiled religious sites, they raped and pillaged, and it was all done ‘For King and Country’. Other white nations have similarly sordid pasts, the French behaved atrociously in Africa and SE Asia, the Germans committed genocide and ethnic cleansing in their African colonies, the Dutch were ruthless, cruel and murderous to the peoples of their Asian colonies, perhaps the worst was the way the Belgians treated the people of the Congo.

  3. I object to NFL players protesting on “company time” instead of doing it on their free time away from the football fields. Viewers shouldn’t have to sit and watch a bunch of overpaid individuals making meaningless gestures that are not concrete actions toward the betterment of the conditions they were supposedly “protesting.” The sponsors have every right to withdraw their support if they do not like the image that the players are creating. I did feel that it was disrespectful to a flag, a country, and a population that has given all its citizens the right to life, liberty, and the pursuit of happiness–and that the discontented should take their protest to the streets and on their own time–off the football field. I believe some of the sponsors felt the same way. Workig with law enforcement and disadvantaged youth takes time, effort and a lot more than just kneeling while the national anthem plays. Whether it is a law or just common courtesy–I have always been told that we should stand during the anthem and put our hand over our hearts. That’s not asking much of men who make more in a day than many of us made in years of work.

    • I think they are very justified in disrespecting a flag that has come to stand for mass murder, genocide, ethnic cleansing, regime change and all manner of nasty business. How anyone can expect a person of African or Native American descent to respect that flag is beyond me, it is a flag that represents some of the worst genocides in human history, the deaths of hundreds of millions of indigenous Americans, the deaths of tens of millions of enslaved Africans, even the deaths of large numbers of Americans at the hands of the US army. In the view of a large part of the world, the Stars and Stripes stands alongside the Nazi Swastika flag as representing evil and rightly so as it is the flag under which nations have been bombed and invaded, have been ruined by CIA regime changes, have seen millions of their citizens slaughtered. Americans really do have very little to be proud of when it comes to world affairs and not much more to be proud of in domestic affairs either, it is a nation built on the bones of countless innocent millions who did nothing wrong other than being in the way of the ruthless drive for profit that is the heart and soul of the American nation. I’m not proud of the British flag either, it also represents the same murderous, genocidal crimes against humanity.

    • Leaf, Didn’t the same teachers who taught you that also teach, if you don’t have enough for the whole class, don’t sit there and eat a candy bar ? Elementary shit. It is currently 88% more likely to be pulled over in Missouri if you are black. Protest against racial inequality is not race baiting, it is a response to blatant racism.
      The NFL does not own the flag anymore than a dog track in Florida. It’s just that the military is their leading ad client. I went to a high school football game and the mothers working the concessions had T-shirts that said, Let’s Start a War. Enough is enough. Trump is the one baiting. Don’t bite. Football needs to take a knee and listen up. Veterans support protest. It’s our origin. It is healthy for our growth. The US military should pull the ads after the owners decision to disallow protest. That’s Patriotic.

  4. To dive into the micro-aspect of how this civil rights issue became one of pride, and to see how it applies to the NFL’s policy of plantation ownership, just examine the moves by Carolina through last year, along with ownership in Buffalo. The racist comments uncovered by Buffalo’s new draft pick on the day of the draft, follow the ouster of a capable black quarterback who had just led them to the playoffs for the first time in years, despite a depleted wide receiver corp. In Carolina, the owner is forced to sell the team (a bizarre and rare event) due to “comments”. An interim GM with a Jesuit background takes over and trades the number one weapon (to Buffalo) for the black quarterback who is the most reviled among christian whites, but was on a playoff march when the trade was done. This is old school plantation management, and the theme is to break up families that get too powerful. This also caused wide receivers across the league to be squelched. There are numerous examples and trends if you look at the trades and management, after the whole thing started.

    • So, in the NFL, what we see, is a civil rights protest,.. turned into a retaliation that follows old school plantation management style. Trump also went after basketball coaches, and the entire thing is right in front. He is not hiding it. To those who cry patriotism and respecting the flag, I say, respect and pride cannot be forced, it must be earned. And if you attempt to force me to have respect or pride that does not exist, then the most patriotic thing I can do as a veteran is defy you at every turn. You disgust me, and you do not have any pride, but instead ignorance and pseudo dutiful obedience behind a curtain of ridiculous belief. Keep your games, and your betting and your plantation ways. And your false nationalism will be stomped out whenever it pokes it’s ugly head above ground.

    • The ones who scream ,”Oh you guys are starting a race thing” ,.. No, we are pointing out your racism.
      The racist policies are implemented by idiots with no creativity, thus they are easy to track. They are overwhelmingly obvious. To deny this, is to display blindness, or ignorance. That blind ignorance is a direct security threat, and the results are on full display at this time. Pride of ignorance, in it’s fullness, is the height of stupidity. Not what I signed up for.

    • The NFL is the adjunct military unit of propaganda and recruitment. And the fans have been subjected to False pride and worship while the military pursues corporate and foreign interests. Meanwhile, the minorities are tagged for anything possible, to raise funds for cities police departments that are being militarized by racists and exceptionalists. The original protest was a legitimate civil rights protest done properly and with patriotism.
      The “owners” need to be brought to heel. Most own the teams for local political influence anyway. Like Pegula the biggest Fracker of them all. Fracker Crackers. All Trump supporters, racist, and out for big bucks with no conscience. Judge by the fruits. The colleges too make big bucks while the players scrounge for food.

  5. Here we go again, the article mentions Trump calling someone “a son of a bitch”. I just hope that the next time that phrase is used, the user is bitten by a dog. Preferably a female dog.

  6. Facebook is now blocking everything from Veterans Today. Their blocker acts instantly with the text saying “We believe this to be spam etc. etc.” Then when I follow up with my objections, Facebook’s robot says the posts “Don’t meet our community standards”. So I intend to make a lot of public posts on Facebook today telling people that Facebook is blocking a legitimate website for purely political reasons. I don’t know how long this has been going on. My first attempt was to post the humorous article about Speilberg setting up “holocaust education theme parks”.

Comments are closed.