How The Right Is Manipulating The Free Speech Debate To Gain Exposure

(Image by FEMA/Bill Koplitz via Wikimedia Commons)

Freedom of speech is one of the cornerstones of a democratic society. The Founding Fathers of the United States felt that their experiment in self-government would not succeed if the citizens were not free to express themselves, to exchange ideas, and to criticize the politicians they elected. They therefore enshrined the principle of free speech in the First Amendment, which states that:

"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."

In recent years, however, the right has been using the free speech argument for a different purpose: to gain exposure and conquer public space at the expense of their political opponents.

The mastery of the rhetorical tactic of moral equivalence has allowed the right to enlist in their phony free speech crusade even people who are genuinely concerned about freedom, yet are too naive to understand how they are being manipulated. That is not a novelty. The right already successfully mobilized public opinion against Hillary Clinton and Nancy Pelosi in the past. Now moderates have been persuaded to promote far-right speech and its narrative of victimhood.

The Problem of Free Speech

Freedom of speech in the United States means that the government is not allowed to censor speech, not even offensive, outrageous, or radical speech. "It means that many deeply offensive and hurtful things can be said without fear of criminal punishment" (Walker, 1996, p. 2). 

But while the government cannot legislate to curb speech or punish speech, the Constitution does not require individuals to be receptive to specific content. No one has a constitutional right to use a Christian church to preach Islam, to use a military base to host a political rally, or to be invited to a TV show.

All views can be expressed, but not all views must have equal exposure. The "free speech" crusade is not about the right to speak, but about the right to have more exposure, to mislead the public into believing that condemnation of certain views is tantamount to oppression. Jews must listen to anti-Semites and Holocaust deniers; African-Americans must listen to racists; women must listen to misogynists, so the argument. Or else, they're branded as oppressors.

Many liberals have embraced this talking point. Left-wing talk-show host Bill Maher has become a champion of "absolutist free speech", criticizing anyone who is ever offended or outraged by anything. Maher famously defended conspiracy theorist Alex Jones after Twitter banned him. We will come back to the issue of companies regulating speech later.

Conservatives are often outraged whenever right-wing pundits are denied a platform. Thus they hope to gain access to as many platforms as possible, just like they do on Maher's own show. And they hope to tarnish the image of the "left" by portraying it as oppressive.

"Leftism cannot be for free speech," wrote Peter Burfeind in The Federalist. "The left has been increasingly opposed to free speech in recent years, starting on college campuses, which have become danger zones for conservatives," claimed Joel B. Pollak on Breitbart News. Pollak did admit that the First Amendment is directed at government legislation, not at companies or private citizens, yet he brushed this key point aside by arguing that while "the First Amendment is not implicated by private censorship ... free speech certainly is damaged by it." (emphasis in the original). Which is an admission that free speech regulation by individuals and private companies is no crime.

At the same time, it is a matter of public record that a number of conservative media, politicians and pundits have been hostile to speech that they don't like.

In 2003, former Fox News host Bill O’Reilly interviewed Jeremy Glick, whose father had been killed in the 9/11 terrorist attacks. After Glick accused him of exploiting 9/11 for his own gain, O'Reilly became furious. "I’ve done more for the 9/11 families by their own admission," O’Reilly stated. "I’ve done more for them than you will ever hope to do, so you keep your mouth shut."

O'Reilly then told his crew to cut Glick's mic. "I'm not gonna dress you down anymore, out of respect for your father," O'Reilly said. "We're done."

O'Reilly has not only cut off guests during interviews, but he is also no stranger to using defamation laws to intimidate critics. In 2015 he threatened to sue The New York Times journalist Emily Steele for her reporting on O'Reilly's Falkland War claims. "I am coming after you with everything I have," O'Reilly told Steele, adding: "You can take it as a threat."

In 2017 O'Reilly filed a defamation suit against former New Jersey State legislator Michael Panter. Panter had alleged in a Facebook post that his girlfriend had been harassed by O'Reilly in the past. According to NJ.com, US District Judge Joseph Bianco dismissed the case two days after O'Reilly's lawyers announced he was dropping the claims. In 2017 O'Reilly argued that left-wing groups are trying to "wipe out speech" they disagree with.

In February 2017 First Lady Melania Trump settled a defamation claim against a blogger for a "substantial sum". The blogger had alleged that Ms. Trump had worked as an escort and falsely claimed that she had suffered a breakdown.

"I acknowledge that these false statements were very harmful and hurtful to Mrs. Trump and her family, and therefore I sincerely apologize to Mrs. Trump, her son, her husband and her parents for making these false statements," the blogger wrote in a statement released by Trump’s lawyer. However, Mrs. Trump had no problem with her husband willfully lying about Barack Obama's birth certificate for years.

Right-wing host Milo Yannopoulos threatened to sue The Observer for quoting his own remarks. He had stated that he couldn’t "wait for the vigilante squads to start gunning journalists down on sight."

In June 2017 Republican Greg Gianforte pleaded guilty to a charge of misdemeanor assault after he body-slammed a reporter who was trying to ask him a question. Gianforte was sentenced to 40 hours of community service, 20 hours of anger management classes and a $300 fine.

Apart from cases in which right-wingers claim to be free speech supporters, yet try to stifle other people's free speech, conservative and far-right outlets  also systematically shut out or marginalize leftist, progressive, and liberal viewpoints. Fox News has often been accused of making false statements and of not having credible progressive voices. One barely finds any real debate and diversity of opinion in right-wing media like Breitbart News, Infowars or the New York Post. Right-wing media outlets often lack basic journalistic standards. Here is one example.

In an article entitled "How liberals turned against free speech", the pro-Republican New York Post stated that the "Supreme Court First Amendment jurisprudence got its start almost exactly 100 years ago, in cases challenging laws passed by a Democratic Congress and endorsed by a Democratic administration, prohibiting opposition to the government and, specifically, US participation in World War I."

Although this passage is accurate, the context is not. The newspaper omits that during the Civil War the Republican administration under Abraham Lincoln had authorized the military to arrest, try, and imprison civilians for "discouraging volunteer enlistments," "resisting militia drafts," "affording aid and comfort to Rebels," and for engaging in "any disloyal practice." Congress allowed Lincoln "to suspend the privilege of habeas corpus in any case throughout the United States, or any part thereof" (Werhan 2004, p. 18). It is therefore misleading to draw a direct parallel between the Democrats during World War I and liberals today, because limiting civil rights during a war appears to have been a standard practice, however objectionable, at the time.

The Trump administration itself has attempted to intimidate reporters and critics.

In January 2017 a woman was arrested because she laughed during former Attorney General Jeff Sessions's confirmation hearing. In May she was convicted on misdemeanor charges of "disorderly conduct and parading or demonstrating on capitol grounds". The Department of Justice (DOJ) later dropped the charges after a Superior Court judge overturned the conviction.

In November the White House was forced by a court decision to "restore" CNN reporter Jim Acosta's press pass after Trump had ordered it to be revoked. The administration then issued new rules that allow reporters to ask "a single question" at a press conference and "physically surrender" the mic when directed.

During the Senate vote on Brett Kavanaugh's confirmation for Supreme Court Justice on October 6, Vice President Mike Pence said that "expressions of approval or disapproval" were not allowed. On that basis, he had anti-Kavanaugh protesters removed for shouting.

The real aim of the right-wing "free speech" campaign is to create a safe space for right-wing views (Fox News, The New York Post, Breitbart News, White House press conferences, GOP-controlled institutions etc.), while pressuring liberal and independent media as well as social media to give exposure to right-wingers.

The "absolutist free speech" argument is flawed on two grounds. First, private citizens, companies and organizations have the right to regulate speech. For example, church members gather because they have a common belief. By not allowing atheists or Muslims to preach their creed in their church, they are not violating free speech.

Second, free speech can never be absolute. There are important exceptions to free speech. For instance, sexual harassment, libel or defamation are not protected by the First Amendment. For example, hotels can forcibly remove guests for disorderly conduct. According to the Code of Federal Regulations (36 CFR 2.34), disorderly conduct includes "language, an utterance, or gesture, or engag[ing] in a display or act that is obscene, physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace." To name only one example, in July 2017 actor Shia LaBeouf was arrested for "using vulgar language in front of women and children" while drunk. And even the Senate can legally remove protesters solely because they are expressing their political opinions loudly.

For decades Republicans have worked to rig the system. They have achieved their goal with gerrymandering and blatant voter suppression.

In other Wisconsin news today, the state posted the official 2018 Assembly election results. It's a beautiful gerrymander. Dems got 190,000 more votes but Reps got 63/99 seats. Key is assuring many GOP districts get just over 50% of vote even in a bad year for the party. pic.twitter.com/WEOvpr4EUD

— Barry Burden (@bcburden) December 4, 2018

Gerrymandering

North Carolina: Democrats won 48% of votes and 23% of seats

Ohio: Democrats won nearly 50% of votes and 25% of seats

Pennsylvania, new court-ordered nonpartisan map: Dems won 55% of votes and 50% of seats, up from 28% of seats under old maphttps://t.co/kcp7lx4OMh

— Mike Rosenberg (@ByRosenberg) November 29, 2018

Through the use of insults, harassment and bots the right is trying to disrupt debate on social media, while the promotion of fake "free speech" on campuses is an attempt to further a partisan political agenda. We shall discuss in another post why the campus "free speech" debate is not based on real free speech concerns, but is a purely political tactic.

Further readings

• Amponsah, P. N. (2004). Libel Law, Political Criticism, and Defamation of Public Figures: The United States, Europe, and Australia. New York: LFB Scholarly.
• Beman, L. T. (1930). Selected Articles on Censorship of Speech and the Press. New York: H.W. Wilson.
• Bleich, E. (2011). The Freedom to Be Racist?: How the United States and Europe Struggle to Preserve Freedom and Combat Racism. New York: Oxford University Press.
• Freedman, M. H., & Freedman, E. M. (Eds.). (1995). Group Defamation and Freedom of Speech: The Relationship between Language and Violence. Westport, CT: Greenwood Press.
• Freedman, W. (1988). Freedom of Speech on Private Property. New York: Quorum Books. 
• Greenawalt, K. (1995). Fighting Words: Individuals, Communities, and Liberties of Speech. Princeton, NJ: Princeton University Press.
• Marcus, L. R. (1996). Fighting Words: The Politics of Hateful Speech. Westport, CT: Praeger.
• Richards, D. A. (1999). Free Speech and the Politics of Identity. Oxford: Oxford University Press.
• Walker, S. (1996). Hate Speech: The History of an American Controversy. Lincoln, NE: University of Nebraska Press. 
• Werhan, K. (2004). Freedom of Speech: A Reference Guide to the United States Constitution. Westport, CT: Praeger.