Tony Yarusso's Blog

I've seen a number of instances of people throwing the phrase "free speech" around more loosely than an AOLer with "LOL". While it's great that the concept receives so much attention, it seems that it is getting more and more of the wrong kind of attention, which could cheapen the idea and confuse the populace to the point of it becoming meaningless as far as its original intention.

As a review, note that in the United States (no, I'm not going to attempt to cover every country in this post), freedom of speech is largely associated with the first amendment to the Constitution, which reads

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.¹

Start with the obvious - the first word: Congress. Freedom of speech is a governmental concept, and refers to what the government may or may not do. The Supreme Court opinion issued for ASHCROFT V. FREE SPEECH COALITION (00-795) (among others) declares, "As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear."² While it often does (and should) find its way into other arenas, that's more a matter of generally agreed upon good conduct more than for any legal or formal reason. A significant exception is when states include a similar clause in their own constitutions, which of course extends the applicability beyond the federal government to that level. The US State Department describes the scope thusly:

First, "freedom of speech," like almost all other rights guaranteed by the U.S. Constitution, is a limitation only on governmental conduct. Private individuals and institutions, when not acting in concert with government, are free to set and apply their own standards of speech in matters of private life.³

The Ubuntu IRC operators team often deals with individuals who cry "What about free speech?!?" as their defense against our censorship, without recognizing that by entering an Ubuntu channel they have agreed to be bound by that particular community's social contract, as outlined in the Ubuntu Code of Conduct⁴ and IRC Guidelines⁵.

Losing your job for something you said is generally not covered (there are certain particular exceptions, clearly). This is even more true if you are employed on an "at will" basis and can be terminated for any non-discriminatory reason whatsoever, without being told the reason. Same goes for if a sponsor pulls funding for something you're doing because of what you said. Things like employment, support, funding, and association are voluntary to begin with, and subject to equally voluntary termination. It is when the consequences involve revoking "inaliable human rights" (imprisonment, death, involuntary transfer of property/funds, threats, that sort of thing) that you're more likely to be dealing with a freedom of speech situation.

Second thing free speech isn't: absolute. The First Amendment Center at Vanderbilt University notes that this clause has been interpreted as not covering "obscenity, 'fighting words', defamation, child pornography, perjury, blackmail, incitement to imminent lawless action, true threats, or solicitations to commit crimes".⁶ Many people try to construe "free speech" as being an excuse for "I can say whatever the hell I want". With that attitude, it shouldn't take long to run into trouble in one of those categories. Various other categories and interpretations have also existed at times, and our understanding and implementation of free speech is a dynamic situation, as you'll see from the historical background given by the National Constitution Center.⁷ The idea is to protect speech in the ways that help promote a healthy society - not everything falls under this umbrella. The social aspects of this, and the variety of "tests" used to determine where certain things fall, is described well by Tom O'Connor of North Carolina Wesleyan College.⁸

Also note that freedom of speech is not a board game - you don't have to courteously take turns at what you want to say. As far as the legal restrictions go, this is overridden in cases where "fighting words" or threats are being used - you can't respond to something you don't like being said by telling the speaker you plan to kill them. In terms of the social aspects, the purpose would be limited in cases where others were being prevented from listening to a speaker, for instance if a mob of 80,000 formed around a single speaker without a microphone and locked arms to make sure nobody could come close enough to hear what they were saying. Unrestrained shouting matches, however, are perfectly acceptable (in the "free speech sense" anyway - not so much over brunch), even if one side is vastly outnumbered.

Fourth, free speech is not a reason to restrict speech. Most of you are probably re-reading that sentence to figure out what the heck it means. What I'm referring to here is the disturbing trend lately, particularly among the current US presidential administration, to say that new restrictions are actually being put in place to "protect our freedoms". This simply makes no sense. The facts that US citizens can now be locked away (preventing others from hearing what they may have to say), without charges and at the discretion of the president, that members of our own Congress accuse their colleagues of treason for speaking against the government's actions (acknowledging that actually preventing them from such name-calling would be the same thing we'd hope to prevent, and equally stupid), and that various kinds of surveillance, intimidation, and uncertainty are being used in all sorts of areas to discourage speaking out, all in the name of "protecting our hard-won freedoms", etc. is utterly ridiculous and frankly, quite worrying if you've read either history or dystopian fiction.

Finally, free speech is not to be cheapened, both as a concept and as a phrase. While many things have happened in the US, Canada, UK, Australia, and other places in recent years to restrict it, all of these places are still reasonably free compared to those at the bottom of the Reporters sans fronti