It’s an ideological construction which vests its meaning in the subjectivity of the time, and the line that blurs between speech and action–shouting fire in a theater is effectively action, and can be restricted, while depiction of pornography is effectively speech, and can be protected–makes delineation of free speech meaningless as an absolute.
Discuss.
(I said I was gonna start this thread, so I did…with apologies to Stanley Fish for undoubtedly mangling his eloquent argument.)
Well, the courts have defined ‘speech’ to be ‘expression’. Therefore the depiction of what you would call ‘pornography’ and others would call ‘art’ is a perfectly justifiable example of something that deserves constituional protection. (I am not judging here whether it is good art, that’s an entirely different thread.) Shouting ‘Fire!’ is still, I believe, considered speech, but not protected speech, as it expresses nothing but endagers public safety. Neither are a host of other types that are punishable under civil (libel) or criminal (death threats) law.
If you are simply stating that ‘Free Speech’ is not an absolute right, then you are correct. It is merely a guiding principle in the formation and adjudication of our laws, as are all the rights guaranteed in the Constitution.
I’m not sure what your intention with this thread is though. Are you expecting people to take up the counter position, that all speech should be protected? Or that you are wrong and freedom of speech is absolute?
Ever been to Times Square? Remember those “Black Hebrews” that used to sit there and tell everyone about their theories and philosophies?
That was free.
I remember when I was in High School, I went to a rally and heard George Bush speak - that was outdoors and nobody had to pay a thing. That was a free speech to!
Of course there are free speeches in America!
Silly. :rolleyes:
Gadarene opines:
IANAL, but I believe that is true only of falsely shouting “Fire!” in a crowded theater.
True speech is always protect under the libel and slander laws. Of course, truth is a positive defense.
That the theater is crowded is also a condition; if false speech is disseminated, the person wishing to attack the speaker must generally show that actual damage resulted to him (although I believe that nominal damages may be awarded where the speaker is shown to be recklessly negligent, or actually malicious, but no actual damage has occurred due to his actions).
As for freedom of speech being an absolute – no, of course it isn’t, has never been viewed as such, and probably shouldn’t be. Together with the right to speak freely, comes the responsibility that that speech be reasonably accurate.
Of course, we can view this in terms of the old joke: In Nazi Germany, everyone possessed freedom of speech. What they didn’t necessarily possess was freedom after the speech.
I would argue that a distinction may indeed be drawn between speech and action. Given the circumstances, does a particular piece of speech perforce incite to action?
And I mean ‘perforce’. Even if you could statistically prove that violent movies and violent people go together, that’s not a necessary causal link. However, what I’m thinking of is more the demagogue at the head of the angry mob yelling ‘let’s go burn down his house!’
The act of saying “let’s go burn down his house” is protected. Using those words to cause people to burn down a house is not; it is incitement to riot.
The question of whether freedom of speech does exist in the United States is more interesting.
Ah, Stanley Fish, the Dean of my University. Having seen him on numerous occasions, seeing him described as eloquent is quite amusing, but I digress. His wife’s work on literature and popular culture, and in education, is quite good read. But I digress again.
Philosophy is not science: moral “absolutes” are not like scientific “absolutes” that can be proven or disproven on the basis of counterexamples. First of all, freedom of speech does not mean the right to make my vocal cords vibrate in any means I wish. Freedom of speech guarantees a persons right to express any idea he or she wishes for any purpose whatsoever. The existence of examples of vocal cord vibrations which are not contained in the realm of “expression of ideas” does not grant the government the right to willy-nilly decide who may express which idea and for what purpose that idea may be expressed.
To use a better counter-example than Ollie Holmes’s “Fire in the Theater” one, if an organized crime leader tells one of his lieutenants “go kill Don Corleon” is he absolved from any wrongdoing since he may say whatever he wishes? Of course not. He’s not merely expressing his wish that Vito not be alive: he is commanding another to kill. That makes him guilty of the crime as well. Likewise, Jodi Foster, despite making several statements about her disagreement with Reagan, cannot be implicated in his shooting by Hinkley , even though he said he committed the crime expressly because Jodi Foster didn’t like Reagan. Jodi Foster has the right to criticize the government. Yet, if she had told Hinkley expressly “Kill Reagan and I will sleep with you” she would be guilty. The fact that the government can restrict a person’s right to make a statement that is meant to cause the commision of a specific crime does not give the govenments right to restrict our right to say things that may lead to the comission of a crime.
To say that the existance of vocal utterances that can be themselves considered the comission of a crime does not mean that our right to free expression is subject to the whim of our current political leadership.
In the U.S. at least, there are precious few absolutes in the law. Killing someone is wrong. Unless it’s self-defense. Or it’s done on behalf of the State. Or it was an accident. I don’t think that pointing out that “freedom of speech” cannot be taken as an absolute necessarily leads to the conclusion that “freedom of speech,” as a general concept, does not exist. It does. Anyway, though I’m not sure where this discussion maybe going, I can’t resist picking a legal nit:
This is not correct because of the word “always.” While the truth is an absolute defense to libel or slander, it is not a defense to invasion of privacy. It is possible to invade someone’s privacy by disseminating true but private information about them; if you do so (without a good reason, such as that the information is in the public interest) then you may be liable for damages.
Good catch. Add to that list true speech like privileged corporate information, copyrighted speech, things deemed a danger to national security, and probably a bunch of others as well. ‘Truth’ is often irrelevant to legality.
jayron says:
First of all, that’s not true.
And rereading my OP, I realize I should’ve been clearer. Obviously free speech isn’t an absolute right–like jodih says, it’s hard to find legal absolutes. But I said that delineation of free speech was meaningless as an absolute, not just free speech itself. That is, there’s no objective standard set by which to judge what speech can be considered “free”. That’s why free speech is inherently an ideological concept; it can’t be defined outside of the bounds of ideology. The construct “free speech” is necessarily political, in that the restrictions it places are subject to nonintrinsic valuation.
To quote Fish (and by the way, jayron, I’m an alum of his previous university :D):
The example of Gitlow, in which the Court explicitly confers to states the right to proscribe “utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace,” yet goes on to lament the near-impossibility of identifying such utterances, shows how the liberty extended to speech is no way value-neutral, nor could it ever be. As Holmes says in his dissent,
Does that make my argument any clearer? I do think there’s a debate to be had here, for sure.
Oh, and sdimbert: Smartass. 
Gadarene:
Well there might be a debate if I understood what the heck you’re talking about!
“… there’s no objective standard set by which to judge what speech can be considered ‘free’. That’s why free speech is inherently an ideological concept; it can’t be defined outside of the bounds of ideology. The construct ‘free speech’ is necessarily political, in that the restrictions it places are subject to nonintrinsic valuation.”
Huh? I’m completely unable to extract any meaning from these sentences.
Are you using “ideological” or “ideology” with a different meaning than the ordinary dictionary definition? If so, please explain.
Again, I have to ask how you’re using this word.
I read these sentences as:
We can’t create an objective definition of the term “free speech”, because we can’t apply any objective definition of “free” to speech. That’s why free speech is (part of?) a systematic body of concepts (non sequitor); free speech has to be defined in relationship to other ideas. Free speech relates to the conduct of government (another non sequitor), in that the restrictions it places are subject to external validation (contradicts the first sentence).
Either I’m a complete moron or you’ve strung some 50 cent words together with absolutely no actual meaning, or you’ve redefined the language sufficiently to require a translation into English. The rest of both your posts continue in this vein: Incomprehensible to an intelligent speaker of the English language who does not aspire to academic pretention or obfuscation.
If what you’re saying is that the “the idea of the free expression of ideas” allows self-contradictory or undecidable interpretations, you’re of course right. Applying an idea to ideas constitutes level crossing. Mathematics has been long aware of this limitation of logic. Properly speaking, “free speech” is a meta-idea, and requires a meta-ethic to evaluate it.
If what you’re saying is that “free speech” can only be evaluated within the context of the rest of the language, well duh! All language is self-referential; it is a tool each of us uses to determine the truth, it does not embody the truth itself. And, like any tool, it can be used for more purposes than those for which it was originally intended.
If this is eloquent, I am Elenor Roosevelt.
Extracting from the philosophical mumbo jumbo Fish seems to be hiding behind here (and why does he feel the need to hind behind fuzzy language if he feels his point is a valid one… or perhaps he’s just a lousy writer) His thesis is extracted out of the last sentence, a point I made earlier myself: If speech is the act of making vibrations with ones vocal cords, then by necessity it cannot carry value. It is the value we assign to those utterances, the ideas contained within the speech, that are what we are trying to restrict/not restrict when we talk about “absolute freedom of speech” Since speech is meaningless outside of social context, to grant protection outside of social context, such as the word “absolute” implies, is also meaningless.
However, that does not mean that there are not certain classes of speech which * are * absolutely protected. For instance, we have the right of criticism; we can always state our opinion of the actions of any public figure or entity, and our feelings toward them, as well as our opinion of courses of action we feel should be taken as a result of previous actions taken by them.
For instance, as an extreme case, I can claim that the U.S. government is as an unsuccessful system. My statement of such is protected speech. I can even say that I believe that such a government should be replaced by an alternative system. Also protected speech. I can even say that I believe that the only way that can occur is through revolution and violent overthrow. Also protected speech. If I were to participate in the planning of the overthrow of the government by violent means and its replacement by a new government, that is not protected speech since I have crossed the line out of the realm of protected speech. However, speech that is of the nature of the my first few points is absolutely protected. The absolute portion is not on all speech, but there are still forms of speech that are absolutely protected.
In conclusion, by noting that there are utterances which are not “protected speech,” does not negate the fact that there are classes of utterances which can be considered absolutely protected as “free speech.”
I think he’s saying that speech will always be limited by what we determine is acceptable to say, which means it will always be limited by the ethical environment we are in. Our speech is limited just as our physical freedom is limited by what it is acceptable to do (you can’t kill people randomly without the government going after you). You will be restrained by violating our ethical laws by your speech, since speech is simply an action, although of course there is a difference between killing someone and saying “I’m going to kill you”. But if your speech is an action that violates our ethical principles, you will be restrained from speaking.
Can and should academic philosophers and social scientists express themselves clearly? I’m making the case that Gadarene is not expressing himself clearly, at least not in the English language. Jayron is supporting and extending my argument to Fish’s statements. I happen to agree with Jayron’s extension.
Gadarene and Fish are conceding that on a practical level, speech is not absolutely free. Fish says, “I do not mean that expression (saying something) is a realm whose integrity is sometimes compromised by certain restrictions.” What they seem to be trying to argue (as far as I can tell; my eyes keep crossing when I try to read them), is that the very definition of “free speech” is not an objective concept; its very nature is self-referential and culturally conditioned. If so, “free speech” could equally well apply to Soviet Communism or Nazism.
I would suspect they were hiding this assertion with their language if I didn’t realize all to well the academic penchant for obscurantism and pretentious jargon for its own sake.
Of course social scientists ought to express themselves clearly. If they don’t, they’re contributing nothing to public understanding, but rather demonstrating their membership in a corporatist expert sector which gains power by blocking off knowledge from others using an obscurantist dialect. It’s little better than verbal masturbation, and there’s nothing wrong with masturbation except that you shouldn’t do it in public.
matt_mcl:
snork! Well said, and bears repeating.
I don’t think they’re “blocking off” knowlege so much as pretending to have it in the first place.
Wow… I’ve honestly never been characterized as obfuscating for the sake of obfuscation. Coming from someone whose posts sometimes make my eyes cross–and I don’t mean that pejoratively, just that you sometimes write densely, SingleDad–but whose intellect I respect, I just might have to question my own ability to be clear.
Free speech is a normative value. There is no objective standard by which the restriction of speech under “free speech” grounds can be determined. Thus, the application of “free speech” standards is necessarily relative. When something is protected or restricted under the guise of free speech, it is done so pursuant to an ideology–a set of beliefs which are particular, not universal. So someone can be in favor flag-burning laws but against campus hate speech codes. But free speech is usually invoked as a transcendent truth, something which exists outside the scope of politics.
The point Fish makes is it can’t exist as a universal concept, that politics are inherent.
At the risk of sounding elitist or moronic, that makes sense to me. Guys, I hate pretentious, academic jargon, and it’s kinda astounding that I’m being told I’m perpetuating it. Maybe the passages I’m quoting are poor choices, but I think Fish is very readable. He uses big words sometimes because he’s dealing with difficult theoretical concepts, not because he’s trying to sound smart–as far as I know, anyway.
SingleDad, you say
You’re obviously not a complete moron. But neither am I stringing random words together, or redefining the language, or aspiring to pretension. I respectfully submit that you’re being too hasty in dismissing me as incomprehensible, unintelligent, pretentious, and obfuscatory.
jayron says that
I completely agree. What I’m arguing is that in order for there to be speech classified as “free” or protected, there must be speech classified as “restricted” or unprotected. And different kinds of speech will be restricted depending on who is doing the restricting. So “free speech” has no intrinsic value–it’s merely “everything that is not forbidden at this time.”
Does that help?
Gadarene:
**
Thanks! I was beginning to think no one even saw that!
To SingleDad and the rest of you trying to stamp out malapropism…
:applause:
Thanks a million! We’ve almost got this thing down to where plain Joes like me can get involved.
I’ve been lurking for a while, following with interest… but from what I think I’ve understood, I’m not sure what the big deal is.
It seems to me that “free speech” exists just as any other civil right does - I can exercise it as long as my “actions”
don’t infringe on the civil rights of other citizens.
That’s why I can say “Gadarene is an incomprehensible, unintelligent, pretentious, and obfuscatory dipwad,” 
but I can’t holler “fire” in a crowded theater.
No? 
What did I miss?
Except they’re not. Malapropism is generally using a word or phrase that sounds similar to what you mean to say but means an entirely different thing. I once had a boss who would do this all the time (trying to understand her instructions was a bear); saying things like “I have to take the cat to the Mediterranean” instead of “I have to take the cat to the veternarian.”
You want an easy way of thinking about it? Or at least my beliefs on how a freedom of speech law would be constructed?
You can say whatever you want. Any concept you care to express is permitted.
However, what is not permitted is criminal actions which you perform in order to speak or by means of speaking.
The first is the reason why creating child pornography is illegal: because it requires child molestation in order to create. (This would leave out non-photographic child pornography (drawings, writings, etc); it would also not touch the issue of possessing child pornography.)
The second is that you are not allowed to use your speech to cause a violation of the law. That’s why you can’t yell fire in a crowded theatre or incite to riot. (Of course, since makers of violent movies are not actually using their medium in order to cause violence, their speech is permitted.)
I hope this isn’t too hairsplitting, but we could say that there’s a difference between speech as expressiong a thought (‘there’s a fire in here’) and speech as committing an action (the action of falsely causing a stampede).
minor clarification: there’s absolutely nothing wrong with yelling “fire!” in a crowded theatre - if there is a fire.
Here’s what Holmes J. said on behalf of the U.S.S.C., in *Schenck v. U.S. *, 249 U.S. 47 (1919):
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”