Free Speech?

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

     [Schenck v. United States, 249 U.S. 47 (1919) (link) Emphasis mine.]

My object here is to enlarge the context of the terrorist attack on personnel of the French satirical magazine, Charlie Hebdo, in Paris—in reaction to which Free Speech is (as it were) being deified. In actual fact, there are limits to free speech, at least in the United States, when its use or abuse presents a clear and present danger. Here, anyway, according to Chief Justice Holmes back in 1919, there are substantive evils that Congress has a right to prevent.

The case decided in Schenck v. United States dealt with  “A conspiracy to circulate among men called and accepted for military service under the Selective Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft.” That action, very mild in the context of our time, was “within the power of Congress to punish.” The quotations from the case itself.

Just where these limits to Free Speech actually fall appears to have become very ambiguous, evidently depending on which side of an issue you’re on, whose ox gets gored, and so forth. If we look at the actual flavor of Charlie Hebdo, provided on this Google dump of images here, it is obvious that the paper attacks just about everything. One of their covers, visible here, cited by some to show that the paper exercises its satire on all faiths, shows the Bible, Torah, and Qur’an as rolls of toilet paper. In the secular world, such things are deemed Okay and unremarkable. But Holmes, in Schenck, noted, immediately after the quote given above, that “The character of every act depends upon the circumstances in which it is done.” In today’s circumstances it may be just fine to badmouth Christianity and Judaism, but plain facts, going back some years now, indicate that Hebdo was creating a clear and present danger—to itself and all those who, by proximity to it, might become “collateral damage” to an attack on its use of Free Speech.

Pondering these matters, Brigitte had a sharp intuition. Odd, she said, that we set clear limits on attacks on bodies but attacks on human minds are defended passionately and there is no limit whatsoever. Well, according to our Supreme Court, there are situations in which “the freedom of speech protected by the First Amendment may become subject to prohibition.” But we are so busy in our selective outrage that we have no time actually to think about things at all, never mind such unspeakable horrors as limiting Free Speech.

The Freedom to Yell Fire

Free speech, rightly valued, has its limits. Of late several stories across the world have thrown light on that—in the United States constitutionally protected—right. Last month came the trial of members of a punk band for attacking the Putin regime from the altar of an Orthodox church. Yesterday came stories, repeated today, that next-in-line leader Xi Jinping hasn’t been seen in days, but China’s authorities are absolutely mum. Today comes an escalation of the 2005 Muhammed cartoon controversy: a film attacking the Prophet of Islam as a fraud. Ah, the Internet. Riots came at once in Libya and Egypt (one American died). In the realm we now inhabit excess of good produces the bad, excess of bad produces the good. In both cases the innocent are hurt—but then, who is really innocent? Paradoxical but true.

A Priceless “Free Speech” Moment

One way to sum it up is to say that today money may speak, but a hundred years ago bulls were well advised to wear pants. Puzzled? Read on.

It’s 1907 and the leading tobacco company in the United States, American Tobacco, signs a contract with a stage-coach line. We’re talking about the horse-drawn variety. The company wants to use the sides of the stage-coach to advertise one of its most popular brands, “Bull” Durham. The ads are made and affixed, the first stage-coach heads out. A huge public outcry follows. Why? Well, the bull’s testicles are so prominently featured in the ad that people daren’t even look!! The City of New York, always a guardian of public morality, arrests the stage coach driver. The coach is rapidly shunted out of sight. Then as now (some things never change), the affair bursts into litigation, and that, in turn, eventually reaches the Supreme Court no less. It is now 1911. And the Supremes uphold the city’s action, approve of the ban. What!? you cry. Hadn’t those benighted judges heard of free speech yet? No doubt they had. It’s just that they clean forgot it—staring at those humongous testicles.

The Video in Question

Let us consider a video game and describe it in the ponderous language of law. Consider a game—

“in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”
     [Text from the California Assembly Bill 1179, quoted in the recently decided Brown v. Entertainment Merchants Association et al. reachable here.]

California has prohibited sale of such games to minors. The Supreme Court has just held that such a prohibition is a violation of the First Amendment. The only pertinent words in that amendment are: “Congress shall make no law … abridging the freedom of speech.” Since that amendment’s enactment, we’ve discovered that everything is speech, including expenditure of money. Haven’t we? No. Not quite. The Supreme Court holds that—

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. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
     [Text of Chaplinsky v. New Hampshire (1942). The emphasis is mine.]

Chaplinsky, indeed, upheld the fighting words aspect of this “dispensation.” In Brown v. Entertainment Merchants, the Supreme Court cites Chaplinsky as well as Roth v. United States (1954) in which obscenity is defined as material whose “dominant theme taken as a whole appeals to the prurient interest” to the “average person, applying contemporary community standards.” It’s okay to prohibit obscenity as well, evidently, for the same reasons I’ve italicized in the quote above. The Court also cites Brandenburg v. Ohio (1959) in which the court defined incitement that may be prohibited in these words:

… the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
     [Brandenburg v. Ohio, emphasis mine.]

Now it strikes me that emphasized phrases in all of the above might very easily be applied to video games of the sort defined by the State of California. They are (1) certainly not any exposition of ideas, (2) steps to truth, and (3) certainly operate against social interest in order and morality. Or is it a good thing to let teenaged boys experience, even if only virtually, torturing and raping people? That’s a rhetorical question, by the way. No need to enlighten me.