Freedom of speech – the knife-edge.

I have a problem with dumb arse dimwits given to waving around a slogan of “free speech” without understanding it. They are complete ignorant fools more interested in screaming slogans than understanding the constraints of their ‘right’. The events of the last 4 years in the USA have made that very clear. So I thought I’d point out a few facts of life about constraints on freedom of speech – with a sidetrack through Trumps’ incitements to riot.

Sure the US Constitution has a limited and quite specific amendment that reads …

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

constitution.congress.gov: “First amendment“

There are several points about that.

• It only restricts Congress from making laws from abridging the freedom of speech. It says nothing about anyone else doing from abridging freedom of speech. Facebook, twitter, newspapers, online media, TV, blogs, local councils, and even the states of the USA aren’t so constrained unless they added it to their constitution – read about the constitution of the state of Alabama if you want to understand how far states rights can go in the worlds largest and most amended constitution.
• It limits the right of people to assemble peaceably – in other words not to make riot and kill themselves and others.
• There is no explicit or even implied right to go where ever they want to assemble, be it private or public property, roads or even congress.

If you ever read about the history of hairline decisions of US supreme court as they have steadily tested what the first amendment means in practice, you’ll get what I mean. For instance, this one caught my eye.

Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988): After a school principal removed two pages containing articles, among others, on teenage pregnancy and the impact of divorce on students from a newspaper produced as part of a high school journalism class, the student staff filed suit claiming violation of their First Amendment rights. The principal defended his action on the grounds that he was protecting the privacy of the pregnant students described, protecting younger students from inappropriate references to sexual activity and birth control, and protecting the school from a potential libel action.

The Supreme Court held that the principal acted reasonably and did not violate the students’ First Amendment rights. A school need not tolerate student speech, the Court declared, “that is inconsistent with its ‘basic educational mission,’ even though the government could not censor similar speech outside the school.” In addition, the Court found the newspaper was part of the regular journalism curriculum and subject to extensive control by a faculty member. The school, thus, did not create a public forum for the expression of ideas, but instead maintained the newspaper “as supervised learning experience for journalism students.” The Court concluded that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” The Court strongly suggested that supervised student activities that “may fairly be characterized as part of the school curriculum,” including school-sponsored publications and theatrical productions, were subject to the authority of educators. The Court cautioned, however, that this authority does not justify an educator’s attempt “to silence a student’s personal expression that happens to occur on the school premises.

American Library Association: “Notable First Amendment Court Cases“

Now that is a typical knife-edge. This is a both a government body set up by laws from the federal congress, state congress, and probably local laws. The first amendment makes no reference to age so they couldn’t use that. But the essence of the argument was that this was the government governing student newspaper that was viewed as part of the educational curriculum.

Spinning on a needle. It appears that in the US you can set up a blog about a school and claim first amendment rights in slagging off everyone (different case) but cannot raise topical and relevant sex ed in the school newspaper.

The first amendment is a balancing act between the right to raise voices in peaceful protest and opinion, and the type of fatal anarchy that Trump and his supporting cast of loud-mouthed minions induced in the US Congress on January 6th

There is a excellent discussion of this in a Washington Post article (paywalled).

While legal experts are split on whether Trump could face criminal liability for his role in the events of Jan. 6, testimony from rioters who felt directed to take part in illegal acts by his speech could inform a decision by prosecutors about whether to attempt to build a case. Short of that, the testimony from rioters is likely to be cited in Trump’s upcoming impeachment trial in the Senate and could become evidence should people injured in the Capitol attack seek to file lawsuits against Trump.

Washington Post: “‘Trump said to do so’: Accounts of rioters who say the president spurred them to rush the Capitol could be pivotal testimony”

The article has a pile of statements from rioters, court documents laying charges against them, and from their lawyers both prior to January 6th, that essentially says what they heard and what they understood from President Trump and his minions. It boils down to their understanding that they were invited by Trump to attack another branch of government (and the vice-president) and to induce or intimidate them to overturn an electoral defeat.

This is best exemplified by this.

A video clip of another group of rioters mobbing the steps of the Capitol caught one man screaming at a police officer: “We were invited here! We were invited by the president of the United States!”

Washington Post: “‘Trump said to do so’: Accounts of rioters who say the president spurred them to rush the Capitol could be pivotal testimony”

Very telling video of rioters outside the Capitol shouting at police: "We were invited here. We were invited by the president of the United States" pic.twitter.com/Ctt5M1ijoA

— Drew Harwell (@drewharwell) January 13, 2021

For anyone who knows anything about the American constitution, they would be aware that the US President has no ability to invite people to the US congress. Like our monarch with our parliament, the president, has to wait for an invitation from congress to be there as a guest. Hard to see how a erstwhile guest can invite unwanted guests to storm congress with weapons and restraints.

But discussion on what happened on January 6th and if it is freedom of speech illustrates the knife-edge of the US 1st amendment.

In a landmark 1969 case, the Supreme Court held that speech could only be criminal if it could be proved to be “directed to inciting or producing imminent lawless action.” In that case, the court overturned the conviction of a Ku Klux Klan member who delivered a racist and anti-Semitic speech to Klan members gathered in a field in Ohio, finding that the speech’s vague call for “revengeance” and an announcement of a future march on Washington were not calls for immediate criminal behavior.

Eugene Volokh, a constitutional law professor at UCLA School of Law, said the precedent has generally protected rousing or fiery political speech that does not specifically call for violence — even if some people who hear it might be inspired to break the law.

In the case of Trump’s speech, Volokh said he did not believe it would be possible to prove beyond a reasonable doubt that Trump intended to direct the crowd to commit illegal acts.

He noted that Trump did not ask people to break into the Capitol or to assault police officers but instead called for them to “march” to the Capitol — an act of protest protected in the Constitution. At one point, Trump specifically said the people should march “peacefully.”

“One reason why we have a high bar for incitement is because it applies to everyone. It doesn’t just apply to the president. It applies to organizers, labor activists, private citizens. It’s important to keep that bar high,” he said.

But Leonard M. Niehoff, a First Amendment expert at the University of Michigan Law School, said the courts have held that potentially inciting speech must be examined in context.

In this case, Trump called for his supporters not just to march to the Capitol but to “stop the steal,” to act with strength and to “fight like hell.” He said the only way protesters would have been able to stop the electoral college process was through violence.

“The clear instruction was you are going to the Capitol to stop the steal. You are going there to show strength. You are going there to take the country back and not to let this happen,” Niehoff said. “Is it conceivable that you would listen to that speech and say to yourself, ‘All the president wants us to do is go to the Capitol and then go home?’ I just don’t think so.”

The two scholars agreed, however, the public should examine whether the president’s words and actions were immoral, not just whether they broke the law.

Volokh said Trump’s actions may amount more to a “dereliction of duty” than a crime — a failure to protect the public that might be better addressed through the impeachment process underway in Congress.

Niehoff added, “Whether he behaved properly, as an ethical matter, that’s not something the law will answer.”

Washington Post: “‘Trump said to do so’: Accounts of rioters who say the president spurred them to rush the Capitol could be pivotal testimony”

And that is the essence of such ‘rights’ as freedom of speech. They are never an unconstrained right. They have severe limits both in the legislation and constitutions that they are part of, and also in the interpreted law that derives from them.

In the case of Donald Trump on January 6th , I suspect that questions of incitement to riot and other charges aren’t going to met the criteria of reasonable doubt required of a criminal charge.

However civil law with suits brought by people injured, damage to property, and even from the convicted rioters will plague Donald Trump as soon as he comes out from under the cover of the protection of the executive branch on the 20th. Probably on some of his cast of supporting minions as well.

Congress, as the institution assaulted and with judgement over the executive and judicial branches of government will render its impeachment and other possible verdicts (like barring him from public office on moral and ethical grounds) on a departed 45th President later in the 117th Congress. The impeachment grounds are…

The actual words used in the article of impeachment adopted by the House on Wednesday were both incredibly damning and also an accurate portrayal of the president’s conduct since November’s election. Trump, according to the House, was “inciting violence against the Government of the United States,” “threatened the integrity of the democratic system,” and “imperiled a coequal branch of Government.”

FiveThirtyEight: “Trump Has Been Rebuked Like No Other President — But Really Only By Democrats“

But for us in New Zealand, the most important thing about the US first amendment is that it isn’t our law.

The nearest we have to it is formalised in the Bill Of Rights Act 1990. It too is extremely clear about what it applies to when you look at its limitations inside the legislation.

3 Application

This Bill of Rights applies only to acts done—

(a) by the legislative, executive, or judicial branches of the Government of New Zealand; or

(b) by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

5 Justified limitations

Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 

7 Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights

Where any Bill is introduced into the House of Representatives, the Attorney-General shall,—

(a) in the case of a Government Bill, on the introduction of that Bill; or

(b) in any other case, as soon as practicable after the introduction of the Bill,—

bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

In other words, like the US first amendment it only applies to the authority of the crown and the derived powers granted from that in law. It is also a bit more explicit about when laws of our society can constrain the rights in the Act.

In other words, read the actual laws and don’t rely on an absolutist interpretation of BORA in court . To apply BORA against a law, you’d probably need to demonstrate that the legislators failed to test an inconsistency with BORA when they made of amended legislation. Since virtually all legislation has been turned over since 1990, then it’d pay to read the Attorney General’s report and Hansard first.

Finally, I’d like to point out for fools who sometimes turn up here claiming a right to freedom of speech according to their own rules. We have no association with our government. We’re not in the US and therefore have nothing to do with their laws. Our rules about behaviour are outlined in the policy – most of which essentially say don’t be a dickhead and listen to the moderators.

In other words very like many decisions I have read on many freedom of speech.