David’s Dignity

Michelangelo’s David is generally regarded as one of the supreme artistic creations in the history of the world. Housed in the Galleria dell’Accademia in Florence, the colossal statue is breath-taking, magnificent, and inspiring. A visit to see David should be a bucket list item for any art lover.

David was completed in 1504, and in the 700 years since it has become an iconic image. Like any iconic image in the modern world, David has been commoditized. You can buy fluorescent plastic reproductions of the statue, t-shirts of David blowing a bubble or David hoisting a wine glass, or other goods featuring various parts of his body or face. But . . . is that proper? Or, should Italy be able to protect the dignity of this monumental artwork, and prevent it from becoming the subject of the kind of trashy junk sold in souvenir shops?

That’s an important question, because the director of the Galleria dell’Accademia has been using an Italian law to stop commercial exploitation of images of David that she considers to be “debasing.” She has encouraged the state’s attorney office to bring lawsuits under Italy’s cultural heritage code, which protects artistic works from disparaging and unauthorized commercial use. In most countries, artwork falls into the public domain within a set period after the death of the creator–and once a piece falls into the public domain, people are free to make use of its image. Interestingly, Italy is one of many countries that has signed a convention recognizing that approach.

The world obviously doesn’t need more cheap plastic knock-offs of David any more than it needs more t-shirts of the Mona Lisa wearing sunglasses–but there are obvious issues of free expression and free speech that also come into play. Who is to decide what is to be considered “debasing” or disparaging, or what should be authorized? Should Monty Python, for example, have been permitted to use the image of Botticelli’s Birth of Venus in a hilarious and arguably disrespectful way in one of its shows?

I come down on the side of free speech on this issue, and I think the notion of allowing artwork to pass into the public domain within a reasonable period after the artist’s death makes sense. And, at bottom, I really don’t think that the commercial uses of David are “debasing” of the artwork itself. I think that David, the Mona Lisa, Van Gogh’s self-portrait, and other supreme artistic accomplishments can withstand some crass commercial profiteering. If anything, that cheap neon plastic statue of David might just cause someone to want to go see the awe-inspiring original, in all its glory.

Protecting The Finger

Giving somebody the finger is a vulgar, inherently provoking way of expressing extreme disapproval–but should it be viewed as a criminal act? A court in Canada recently addressed that question, and found that, to the contrary, flipping someone off is “a God-given, charter-enshrined right that belongs to every red-blooded Canadian.” You can read the court’s decision here.

The case arose in the context of a neighborhood dispute that turned ugly, on a quiet street where relations clearly had become so poisonous that seemingly everything has become a provocation. One set of neighbors, the complainants in the case, lived in a house equipped with an array of video cameras that they used to keep an eye on the neighborhood, including the accused, a schoolteacher who was the father of two young girls. The complainants also kept a written log of the accused’s activities.

The story begins on March 25, 2021, when kids watched by their parents were playing on lawns and in the street in the aftermath of COVID lockdowns. The complainants drive by, too fast and too close to the children, according to the parents nearby. There is a brief interaction and the complainants call the police, who come to the neighborhood but make no arrests. The complainants call the police again on the following days and record additional supposed incidents in their neighborhood log, all of which are meticulously described in the court’s opinion. Things finally come to a head several weeks later, when another confrontation occurs, the accused drops an f-bomb and gives one of the complainants the finger, and is then arrested for harassment after the complainant calls the police again.

After reviewing the video and testimonial evidence, carefully assessing the credibility of the witnesses, and making numerous findings of fact, the court concludes:

“To be abundantly clear, it is not a crime to give someone the finger. Flipping the proverbial bird is a God-given, Charter enshrined right that belongs to every red-blooded Canadian. It may not be civil, it may not be polite, it may not be gentlemanly.

“Nevertheless, it does not trigger criminal liability. Offending someone is not a crime. It is an integral component of one’s freedom of expression. Citizens are to be thicker-skinned, especially when they behave in ways that are highly likely to trigger such profanity – like driving too fast on a street where innocent kids are playing. Being told to “fuck off” should not prompt a call to 9-1-1.”

In short, our neighbors to the north expect people to be a bit tougher when confronted with crude gestures. Part of protecting the right to free speech involves protecting unseemly speech, like the upraised middle finger. In Canada, at least, that right is protected.

And let’s all be glad we don’t live in that dysfunctional neighborhood.

Elon Musk’s Twitter Play

The media is reporting that Elon Musk–the driving force behind Tesla, and SpaceX, cultural and political gadfly, former Saturday Night Live host, and reportedly the world’s richest person–has been successful in his bid to buy Twitter. CNBC says that Twitter’s Board of Directors has accepted Musk’s tender offer in a deal that will provide $44 billion for Twitter shareholders and result in Twitter being converted from a public to a private company.

This story is an intersection of two things that are beyond my ken: the unimaginable world of the hyper-rich, and the curious universe of Twitter users and followers. Musk’s net worth reportedly exceeds $250 billion, which gives him plenty of resources to do whatever he wants, whenever he wants. In this instance, Musk says he wants to buy Twitter to further free speech interests. “Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated,” Musk said in a prepared statement. Promoting free speech is a highly laudable goal, of course, and Musk’s track record in moving things like electric cars and space travel from dream to reality has been impressive.

But I think Musk is wrong to see Twitter as a “digital town square” where meaningful debate occurs. The next sentence of his prepared statement–where Musk says “I also want to make Twitter better than ever by enhancing the product with new features, making the algorithms open source to increase trust, defeating the spam bots, and authenticating all humans”–illustrates why. For those people, like me, who don’t use it, Twitter seems like some weird, dystopian technoworld, haunted by bots and fake followers, where the 280-character limit for tweets requires turning complicated issues into simplified mush and encourages a kind of mean snarkiness not seen since high school. The tweeting record of President Trump bears witness to this fact, but his tweeting record is not alone. Twitter seems to bring out the worst in people, and most of us just don’t want to go there.

If Elon Musk really wants to promote free speech through his acquisition of Twitter, I wish him well, but I don’t think he can do anything that will lure me into that alternate reality, much less cause me to view Twitter as a “digital town square.” If Twitter is a kind of town square, it’s located in the darkest, creepiest part of town that most people would prefer to avoid.

Neil Young, Spotify, Joe Rogan, And “Censorship”

Neil Young made headlines recently by calling on Spotify, a music streaming service, to remove his music so long as Spotify offers the podcasts of Joe Rogan, a commentator who Young accused of spreading misinformation about COVID vaccines. Young’s music was then removed from Spotify, and a number of other artists have followed his lead and removed their music–all of which caused Spotify’s stock to take a hit and prompted Rogan, whose podcast has such a large following that he has a large contract with Spotify, to offer what has been called a “quasi-apology” in hopes of bringing the controversy to a close.

The varying responses to the Young-Rogan-Spotify dust-up have been interesting. Some have applauded Neil Young for taking a principled stand, whereas others, like Jon Stewart, have suggested that Young’s approach is akin to supporting censorship. Stewart is quoted as saying: “Don’t censor. Engage.” I suspect that Stewart’s position is based on a broader concern about efforts to prevent people from ever expressing unpopular views or forcing people to adopt only one viewpoint because some people find the opposing position too upsetting–efforts that are contrary to America’s traditional tolerance of a wide spectrum of opinions and that prevent the give-and-take that our political and social system is built on.

I’m a big proponent of free speech, and I get Stewart’s broader point, but I don’t think Neil Young’s position constitutes censorship. In fact, I think the opposite is true: what Neil Young did constituted speech in its own right. Young took an action that sent an unmistakable message about his views on what Joe Rogan was saying about COVID vaccination. Neil Young had as much right to clearly express his views as Joe Rogan has to express his in the first place. A boycott has long been recognized as a form of protest, and protests have long been recognized as speech. And there is a big difference, under the Constitution and in the law, between a private actor like Young making a decision about where his music is played, for example, and governmental bodies or public institutions acting to quash dissent or silence contrary views.

To be sure, Neil Young could have simply written a public letter objecting to what Rogan was saying, but it’s pretty obvious that it would not have had anywhere close to the impact that his public stance and boycott has produced. Young gets to choose his form of speech, and I’d say his chosen approach has expressed his position very powerfully and effectively. And his position has produced results: Spotify has now announced that it will add content advisories to podcasts that discuss COVID issues, and Rogan has been made aware that his positions are on the radar screen for many people who might not have been aware of them otherwise. That’s not censorship or anti-free speech activity–instead, that’s just being held accountable for your opinions and statements.

One important point in all of this is that both Neil Young and Joe Rogan continue to have forums where they can express their views on the issues of the day

Protesting With Their Feet

Yesterday Vice President Mike Pence gave the commencement address at the Notre Dame  University graduation ceremony in South Bend, Indiana.  As Pence began speaking, dozens of graduating students walked out.

The theme of the Vice President’s address was the importance of freedom of speech and tolerance for different points of view, on college campuses and elsewhere.  Many conservative commentators made fun of the students who walked out on Pence’s speech, deriding them as delicate “snowflakes” who simply couldn’t bear to hear opposing views and finding it paradoxical that the students would walk out on a speech that urged them to listen to other, opposing perspectives.

I’ve had a lot of problems with the trampling of free speech rights on college campuses these days, but in this instance I think the critics are wrong.  The Vice President was exercising his free speech rights by giving an address with the content of his choice, and the students were exercising their free speech rights by walking out on the speech as a protest of Trump Administration policies.  The students exited stage left not because they are “snowflakes” who felt they simply couldn’t withstand Pence’s commencement address — a sentiment, incidentally, that many people who have attended overlong, droning college commencement speeches would secretly share — but because walking out was a visible sign of profound disagreement with the views of the speaker.  It’s a form of the kind of silent protest that we’ve seen many times in American history.

In fact, I commend the Notre Dame protesters, because their protest was non-violent and respectful of Pence’s free speech rights.  They didn’t try to shut him up, in contrast to other recent incidents on campus in which agitators have used violence to prevent some people from speaking — such as the mob that shamefully disrupted a lecture by scholars with different viewpoints at Middlebury College and, in the process, gave a Middlebury professor whiplash and a concussion.  The Notre Dame students had every right to “vote with their feet” and send Pence a message that they disagree with what the Trump Administration is doing, and they found an appropriate way to send that message.

I wish more people would listen to opposing viewpoints and try to understand them, but I’m more concerned about people who think that just because they disagree with someone that person shouldn’t be permitted to speak at all — something that is antithetical to one of the most important rights guaranteed to all Americans.  Based on the protest yesterday, I’d say that a Notre Dame education has given those graduates a pretty good understanding of how the Bill of Rights is supposed to work.

Publishing Actors’ Ages

Let’s say you were concerned about age discrimination in Hollywood, where male stars seem to get roles no matter their age, while female actors — other than the peripatetic Meryl Streep — seem to have difficulty getting cast once they hit 45 or 50.  Would you:

(a) notify everyone in the film industry that you were assigning an extra investigator to specifically focus on enforcing existing laws against age discrimination in the industry;

(b) decide that current federal and state law wasn’t sufficient and therefore enact new legislation directly regulating age discrimination at the movie studios that make the films; or

(c) enact a law preventing internet sites, including specifically the IMDb website, from publishing actors’ ages and date of birth information.

Weirdly — or maybe not so weirdly — California chose option 3.  Yesterday a federal judge issued a preliminary injunction against the law, finding that “it’s difficult to imagine how AB 1687 could not violate the First Amendment” because it bars IMDb from publishing purely factual information on its website for public consumption.  And, the court found that although preventing age discrimination in Hollywood is “a compelling goal,” California did not show the new law is “necessary” to advance that goal.  The judge added:  “In fact, it’s not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all. And even if restricting publication on this one website could confer some marginal antidiscrimination benefit, there are likely more direct, more effective, and less speech-restrictive ways of achieving the same end. For example, although the government asserts generically that age discrimination continues in Hollywood despite the long-time presence of antidiscrimination laws, the government fails to explain why more vigorous enforcement of those laws would not be at least as effective at combatting age discrimination as removing birthdates from a single website.”  You can read the judge’s pointed, three-page ruling here.

This conclusion is not surprising to anyone who understands the First Amendment, and presumably didn’t come as a surprise to the lawyers trying to defend California’s law, either.  All of which begs the question of why California legislators enacted it in the first place — and that’s where the “maybe not so weirdly” comment from above comes in.  I’m sure the Hollywood community is, collectively, a big-time contributor to political campaigns on a California state level, just as it is on a national level.  If you were a politician who wanted to say that you had done something to address age discrimination in Hollywood, but without doing anything that might actually, adversely affect the rivers of cash flowing to your campaigns from the big studios, supporting a law that affects only an internet website that actors hate because it discloses how old they really are is a much safer bet.

It’s nice to know that we have federal judges who understand what the First Amendment means, even if California’s elected representatives are clueless.  And if those legislators are so concerned about age discrimination in Hollywood, maybe they’ll actually do something about it — rather than just taking steps to block speech they don’t like.

College Crack-Up

There was rioting on the University of California campus at Berkeley earlier this week — the worst kind of rioting.

A protest was planned to try to stop a speech that was to be given by a conservative figure named Milo Yiannopoulos, and according to the University, “150 masked agitators” came onto campus to turn the protest into a riot.  During the ensuing melee, two UC Berkeley students who happened to be Republicans were attacked while giving an interview, a suit-wearing student was pepper-sprayed and beaten with a rod because a protester through he “looked like a Nazi,” the mob threw Molotov cocktails and commercial grade fireworks at police and smashed windows, and the riot ultimately caused $100,000 worth of damage to the campus.  Oh, yeah — the college cancelled the speech by Yiannopoulos and spirited him off campus “amid the violence and destruction of property and out of concern for public safety.”

So, the protest that turned into a riot achieved its ultimate goal of preventing a speech by a right-wing guy who consciously strives to be provocative and whose perspective many people find vile and hateful.  It’s not clear whether all of the protesters/rioters were there out of concern about Yiannopoulos’ views — UC administrators believe that some of the people who came to the protest from off campus were with a local anarchist group called “Black Bloc” that has been causing problems in Oakland for years and that may have just been looking for an excuse to pelt police and bust some glass — but the outcome is not a good one for those who believe in free speech, even if the speech is by someone whose views are appalling.  According to a piece written by a UC student, some of the students on campus are wondering whether the violence was justified because a peaceful protest would not have succeeded in preventing Yiannopoulos’ speech.   If that view is widespread, the Berkeley incident sends exactly the wrong message:  violence works if you are looking to prevent speech by someone you oppose.  That attitude should send a shudder through the administrative offices of colleges across the land.

I think UC-Berkeley botched this whole process.  It’s time for colleges to get back to being places that tolerate all kinds of speech and that recognize that the response to disagreeable speech — even the most vile, toxic, hateful speech — is not riots, but more speech in opposition.  Rather than breaking windows, how about “teach-ins” by professors who disagree with Yiannopoulos’ views and can respond to his remarks and his approach, after Yiannopoulos is allowed to say whatever he intends to say?  That’s what would have happened on the OSU campus when I was a student back in the ’70s.

Riots should never be tolerated, but riots that are a conscious effort to quash free speech are especially wrong.  Colleges need to stiffen their spines and make sure that the rights of all speakers are respected and protected.

Yard Sign Vandalism

A few days ago the Washington Post carried an interesting confession by a suburban Mom in Maine.  She admitted and she and two of her friends became so enraged by the presence of a bunch of Donald Trump signs on their street that they went out one night and tore them down.  Unfortunately for them, their act of vandalism was seen by the police, and the next day she received a summons to appear in court, because the owner of the property that displayed the yard signs — who just happened to be the chairman of a Maine PAC supporting Trump — was pressing charges.

Why did the woman suddenly engage in an act of vandalism?  Because she hates Trump, and is angry about his crass comments about women, which remind her of her own experience with a crude boss who propositioned her for sex, and she thought that the number of yard signs supporting Trump were destroying the “equilibrium” of her neighborhood.  She writes that she and her friends “felt assaulted by the number of signs. The idea of “cleansing” our streets seemed like the fastest way to restore balance and alleviate our election stress.”  Now she regrets her conduct and recognizes that she momentarily snapped — and will have to face her day in court.

As the Post article notes, this election is raising temperatures nationwide, and the hard feelings are being acted out through Facebook rants, yard sign thefts, acts of vandalism — all the way up to tossing a bomb into a Trump campaign headquarters.  It’s sad to think that this wretched campaign might bust up friendships or family relationships, and it’s even sadder when suburban Moms decide — even if only momentarily — that they have the right to trample on a neighbor’s exercise of their rights to free speech.  Whatever you might think of Trump, you have to at least acknowledge that his supporters have the right to at least express their opinions, just as you have the right to vehemently disagree with those opinions — and if you don’t acknowledge that reality, then we’re really in the process of losing something fundamental and immensely valuable about America.

But here’s the saddest thing:  the Maine Mom hasn’t even met the man whose yard signs she stole.  She didn’t try to talk to him to tell him how she and her friends felt, and he didn’t try to talk to her before deciding to press charges.  You’d like to think that neighbors could at least talk to each other and try to bridge the gap, before resorting to stealing yard signs on one side and going to court on the other.  Maybe if they’d sat down face to face they might have realized that they were dealing with a human being, acquired an understanding of how the other person felt, and perhaps changed their mind on how to proceed.

But these days, it seems, no one talks anymore, and the first response is to escalate — which is how the courts in Maine are going to be hearing a case involving a suburban Mom who stupidly stole some yard signs because she thinks Donald Trump is a jerk.

Standing For The Anthem

In our sports-obsessed culture, when a professional athlete declines to stand for the National Anthem and says it is because he is protesting race relations and police brutality, it’s news.  In this instance, Colin Kaepernick’s actions have provoked some fans to burn his San Francisco 49ers jersey and generated reactions from all points on the political spectrum.

I don’t get the jersey-burning.  Of course, under the First Amendment, Kaepernick has a right to protest and advocate for his position on important issues of the day, period.  We all do.  Although some people increasingly seem hell-bent on punishing and eventually criminalizing free speech, through speech codes and “safe zones” and other contrivances designed to protect our delicate sensibilities from unpopular views — and, of course, quash the expression of those views in the first place — every American still has a right to peacefully express their views on topics like racism.  Kaepernick’s actions aren’t unAmerican; they’re quintessentially American.

And anybody who thinks sports figures should just take their big salaries and keep their mouths shut is kidding himself, too.  Sports have been politicized for as long as I can remember, since at least the 1968 Olympics when John Carlos and Tommie Smith raised their fists and bowed their heads during the playing of the National Anthem.  And the NFL itself has become increasingly involved in public issues, with events like breast cancer awareness weeks where the players wear garish pink towels and socks.  Breast cancer is a pretty safe public issue, but it’s a public issue nevertheless.  To the extent there ever was a line between sports and the real world, that line has long since been erased and crossed.

Kaepernick’s gesture shows the power of free speech — which is why the founding fathers were so interested in protecting it.  One player sits during the National Anthem, and it provokes a firestorm. Kaepernick obviously picked the National Anthem because he knows that every sports event starts with its playing and that it is a source of pride to Americans.  Showing disrespect for the Anthem is an effective way of drawing attention to your cause, just like burning a flag was during the campus protests in the 1960s.

Of course, we can wonder whether Kaepernick will just sit during the Anthem, or will go beyond exercising his free speech rights to actually do something to promote better race relations or address police actions.  The San Francisco police have invited him to come to the police academy to open lines of communication and learn about the challenges facing the thin blue line.  I hope he accepts that invitation, and uses the interest his one-man protest has generated to increase understanding and help improve things.  Sitting is one thing, taking meaningful action is quite another.

Is Porn A Public Health Crisis?

Utah’s state legislature has passed a resolution declaring pornography a public health crisis, and yesterday Utah’s governor signed it.

The resolution doesn’t ban pornography in Utah — with the volume of porn available on the internet and through various media outlets, it’s hard to see how that could be accomplished, anyway — but it does seek to highlight what it calls an epidemic.  The resolution says that porn “perpetuates a sexually toxic environment” and “is contributing to the hypersexualisation of teens, and even prepubescent children, in our society,” and speakers at yesterday’s signing ceremony argued that porn also undermines marriages and contributes to sexual aggression.

Utah, which is a majority Mormon state, has always long been one of the most socially conservative states in America, and an “adult entertainment” trade group called The Free Speech Coalition said that Utah’s declaration is an “old-fashioned” morals bill that ignores that porn watchers tend to have more progressive views on sexuality and women’s rights and that ready access to porn correlates with a decline in sex crimes.

It’s hard to see how anyone could plausibly argue that pornography is a public health crisis in the same way that, say, the Zika virus or Ebola are.  Porn isn’t randomly striking people down or causing microcephaly or other serious health conditions through mosquito bites, and if there is such a thing as “porn addiction” it sure isn’t as widespread or destructive as alcoholism or drug addiction.  Clearly, there are more serious targets of our public health spending than porn.  And there obviously are free speech concerns at issue, too, that the law has wrestled with since one Justice of the Supreme Court famously declared that he might not be able to craft a legal definition of pornography, but he knew it when he saw it.

Still, I think anyone who pooh-poohs the fact or significance of the increasing prevalence of porn — soft, hard, and even violent — in our society might be missing the point.  “Dirty books” and “dirty movies” have always been around, but they sure are a lot more accessible these days, available with a few clicks of a mouse or TV remote control unit.  Anybody who watched HBO, as we do, can’t help but notice how graphic the depiction of sexual activity and sexual situations has become, and broadcast TV isn’t far behind.

There’s a reason pornography is euphemistically called “adult entertainment.”  Parents have a legitimate interest in protecting their children from exposure to porn until the kids have a chance to learn about sex in a more neutral, less charged, less graphic way.   No one wants their kids to think that the scenarios presented in porn are a normal representation of sexual activity in a loving relationship.  That’s not old-fashioned, it’s common sense.

The Trump Campaign’s Chicago Shutdown

If you’ve watched the news this weekend, you’ve seen footage of protesters clashing with security forces and Donald Trump supporters at the site of a scheduled Trump rally in Chicago.  The Trump campaign ended up canceling the event due to security concerns.

The MSNBC website has an interesting story about how a bunch of activists — some from the Bernie Sanders campaign, some from other groups like Black Lives Matter and Fearless and Undocumented — organized a massive protest against the Trump event.  According to the story, a few key factors helped the protest gel.

The Trump event was on the University of Illinois-Chicago campus in the heart of the Windy City, where lots of Sanders supporters and activists are found.  Progressive groups were already well organized in Chicago, because they’ve been routinely protesting against Democrat Chicago Mayor Rahm Emanuel and his police policies for months, so communications networks among groups were already established.  And Trump’s message has so alienated many people that large groups were eager to join in the protest.  The protest organizers came up with a plan, got thousands of protesters to show up and get into the Trump rally, and then when fights broke out the protesters got what their “#SHUTITDOWN” Twitter hashtag suggested — the Trump campaign pulled the plug and Trump himself never appeared.

How to react to people ripping up signs, throwing punches at political rallies, and shutting down a campaign event?  My reactions are decidedly mixed.  There’s no doubt that a lot of Donald Trump’s rhetoric is inflammatory — intentionally so — and he and his supporters shouldn’t be surprised when his strong statements provoke equally strong reactions.  If Trump wants to lash out against immigrants, or Muslims, he’s got to expect that, in some quarters at least, he’s doing to be harshly criticized as a racist and a demagogue and he’s going to encounter lots of protests against his positions and statements.

At the same time, I hate to see violence erupt and political events canceled because of security concerns.  The protesters had every right to advocate against Trump’s message, but Trump and his supporters had every right to speak, too.  One comment in the MSNBC piece was a red flag for me:  a protest organizer said, “We wanted to show Trump that this is Chicago, and we run Chicago, and we’re not going to take this.”  Some other commentators have said that Trump was to blame for the clashes because his campaign dared to schedule an event on a college campus in an urban area.  Such comments suggest — very uncomfortably, in my view — that there are “safe” areas and “unsafe” areas for campaign events to be held, depending on the political views and party affiliation of the candidate.  That’s a dangerous, precarious viewpoint in a country where the Constitution guarantees free speech for all, even if the speech is deeply offensive to many.

One other interesting point about the Chicago clashes is that the Sanders campaign seems to have tapped into a strong vein of anti-establishment feeling on the left side of the political spectrum that cuts across racial lines.  If you are disaffected — whether you are African-American, Latino, Anglo, or other — you’re going to notice that it was members of the Bernie Brigade, and not Hillary Clinton supporters, who helped put together the anti-Trump protests.  It will be interesting to see whether this development, which could seriously cut into the support Clinton expects to get from African-Americans and Latinos, changes the political calculus as big states like Illinois, Ohio, and Florida vote on Tuesday.

 

Freedom Of Speech Under Attack

The brutal slayings in Paris of the contributors to the publication Charlie Hebdo, as well as several others, should resonate with all of us.

If we believe in free speech — and I fervently, passionately do — we should all speak out against any assault on free speech, much less an actual armed attack that leaves many people dead simply because they have expressed views that are inconsistent with one conception of Islam.

A quote typically attributed to Voltaire — whether he said it, or someone else did, is the subject of some debate — is:  “I may not agree with what you have to say, but I will defend to the death your right to say it.”  I agree with that sentiment.

Those of us who are advocates of free speech cannot stand idly by while cartoonists and editors who have the temerity to voice their views are gunned down by religious fanatics.  It is essential that we all stand up and make that point clear or else, inevitably, our own rights to free speech end up being eroded, either by law or by interest in self-preservation.

Stand up, people!  Don’t be cowed!  Now is the time.

Standing Up To Campus Intolerance

I’ve written before about the growing intolerance for free speech on campus, including from commencement speakers.  It’s a problem that seems to be getting worse, not better — and more people are starting to notice and push back.

Two recent articles address the issue and are worth reading.  One is a more straightforward evaluation of the issue by Tim Egan in the New York Times.  The other is a satirical treatment in the form of a mock commencement address by Stephen Carter, a law professor at Yale University.  The Carter piece, especially, raises a compelling question:  since when have callow college students come to view themselves as such infallible know-it-alls — and what will it mean for their future?  If they aren’t willing to entertain competing viewpoints during their college years, what will they be like at age 40, or 50?

Fortunately, my view of the world and my role in it continued to change and evolve after I graduated from college, as I interacted with others, saw how things worked in practice, and added years of life experiences to my perspective.  I’d like to think that process made me a better, more mature, and more thoughtful person.  That’s why it’s sad, and also frightening, to think that closed-minded college students might be walling themselves off from views and information that would allow them to make the same kind of personal journey.  If these college students are so cocksure about the correctness of their politics now, how insufferable will they be later — and how much more willing to take steps to prevent even the presentation of competing views?

The First Amendment, Revisited

The Supreme Court’s recent decision in McCutcheon v. Federal Election Commission has provoked a lot of critical comment. Much of the criticism has been directed at the majority opinion, which struck down aggregate limits restricting how much money a donor may contribute to candidates for federal office, political parties, and political action committees.

In McCutcheon, the Court held, by a 5-4 vote, that the limits violate the First Amendment and rejected arguments that the limits could be justified by a governmental interest in preventing either political corruption or the appearance of such corruption. Critics argue that the decision will lead to a political process dominated by wealthy oligarchs who shovel money to their preferred candidates and causes and thereby control American public policy. That’s the position of Senate Majority Leader Harry Reid, for example.

The dissenting opinion in McCutcheon is at least as interesting as the majority ruling, however. In the dissent, Justice Stephen Breyer, joined by three other Justices, articulated a concept of “collective speech” and asserted that “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” It’s not entirely clear what Justice Breyer means by “collective speech,” but he obviously believes that the interest in “collective speech” can override individual First Amendment expression.

Over the years, the meaning and scope of the First Amendment has been shaped by a series of Supreme Court decisions. The jurisprudence has long since moved past the concept that “speech” is limited to the spoken or written word; it is well established that acts — like burning a draft card or wearing a protest t-shirt — are protected. Contributing money to a political candidate whom you agree with, or to a cause that you support, is similarly a protected act of speech.

Will McCutcheon open a new frontier in the evolution of the First Amendment, and if so should we be more concerned about the concepts underlying the majority opinion or the dissent? Floyd Abrams, a lion of the First Amendment bar who has been involved in many cases addressing free speech issues, has posted an interesting article that argues that the conceptual underpinnings of the dissent are “deeply disquieting.” Abrams notes that the concept of protecting “collective speech” seems to be inconsistent with prior Supreme Court decisions and is a slippery notion that could allow the government to restrict the amount of speech about which candidate or cause to support — a result that seems inconsistent with the First Amendment rather than in furtherance of it.

The First Amendment is the first item in the Bill of Rights. That context indicates that it is intended to protect individual rights, not “collective speech.” When a First Amendment issue arises, I tend to support the notion of more speech rather than less — with the decisions about what to say, and when, left to individuals, not to the government or to some vague notion of what furthers the “collective” good.

Rand Paul At Berkeley

Last week Senator Rand Paul, a Republican Senator from Kentucky, gave a speech at the University of California at Berkeley. Paul spoke about the abuses of the U.S. intelligence community, and his remarks apparently were well-received by his youthful audience.

Some people were struck by the fact that Paul, a conservative whose political inclinations have a distinct Libertarian flavor, would give a speech on a campus that has long been regarded as one of the nation’s most liberal, Democratic enclaves. In this case, he was addressing a topic — personal privacy, and domestic surveillance and intelligence-gathering activities that often seem to be unsupervised and uncontrolled — on which he was likely to find sympathetic ears. On some issues, the American political spectrum seems to be less a straight line than a circle, where the interests of the left and the right can meet. The concern about the growing intrusions of our spy agencies seem to be one of those issues.

Paul said that he also thought it would be useful to speak at places where Republicans don’t often go. I disagree with a huge array of his political positions, but I agree with him on that basic concept. One of the polarizing influences in modern America is the fact that people tend to speak to, listen to, read, and follow only opinions that they already agree with, and often those opinions are strident and demonize people who hold opposing viewpoints. It takes an effort to try to understand what those opposing viewpoints are and why others have adopted them — but often if you make that effort, you come away with a better appreciation of competing views and ideas about potential points of agreement. And, when a speaker is talking to an audience of skeptics, he or she is more likely to skip the cheap, home audience applause lines and instead try to really explain the rationale for their position. Both sides to the communication are likely to benefit as a result.

I wish more of our politicians would seek opportunities to talk to those who hold opposing views, and I wish more people were willing to listen to different perspectives. Free speech can only have an impact if people listen to it. I commend Senator Paul and the Berkeley students who came to hear him.