What are today’s greatest threats to free speech?

free speech

What are the greatest threats to free speech?  A recent free-speech discussion co-sponsored by the Newseum Institute and Spiked magazine posed that question. Here are my choices:

The Garcetti decision for public employees

In 2006, the U.S. Supreme Court severely limited the free-speech rights of the nearly 22 million public employees in the United States. The Court declared in Garcetti v. Ceballos that when public employees engage in official job-duty speech, they have no free-speech rights. None.

This categorical rule means that even if a public employee blows the whistle on the worst on-the-job corruption, if it is considered job-duty speech, the employee has no constitutional claim.

Expansion of the government speech doctrine

The First Amendment often protects speakers from government censorship.  It prevents the government from discriminating against different speakers based on their viewpoints. But, there is a difference between the government censoring private speech and the government exercising its own editorial discretion or speech control. Stated another way, the government can engage in its own speech free from constitutional constraint. This is called the government speech doctrine.

While the doctrine may sound innocuous, it can threaten speech immensely.  Consider the specialty license plate decision from this past term, Walker v. Sons of Confederate Veterans. The case concerned Texas’s denial of a specialty license plate for the SCV. The state did so because many people are offended by the Confederate flag. A typical person seeing a specialty license plate assumes that the plate represents the speech of the driver or owner of the vehicle. But, the Court declared that specialty license plates are a form of government speech and rejected the First Amendment claim. This expansion of the government speech sanctions viewpoint discrimination.

Right Not To Be Offended

The First Amendment protects a great deal of offensive, disagreeable and even repugnant speech. While many people support this free-speech principle, they don’t act on it or support it in practice. There is a dissonance between the First Amendment ideal and the real. Nat Hentoff expressed it beautifully in his book titled “Free Speech for Me But Not for Thee.”

Many act as though offensive speech should be banned. Whether this is political correctness run amok or an enhanced sensitivity, the First Amendment is harmed in the process.

Mass Surveillance

Mass governmental surveillance chills free speech to a frightening extent. It doesn’t just chill speech; it freezes it. As I explained in a prior column, this type of pervasive surveillance threatens freedom of speech and even thought. When Edward Snowden blew the whistle on a secret NSA surveillance program, it opened the eyes of many.

Private Censorship

The First Amendment only limits governmental actors — federal, state and local. Private actors are not constrained by the Constitution generally. This is called the “state action” doctrine.  It purportedly creates a zone of privacy and protects us from excessive governmental interference.

However, censorship from private actors — such as social networking sites or major corporations — can limit and chill speech as much as the government. Particularly when a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor.

The brilliant Erwin Chemerinsky once argued in a 1985 law review article that the state action doctrine should be revisited and abandoned. He explained that private censorship can be as harmful as governmental censorship.

One thought on “What are today’s greatest threats to free speech?

  1. The government speech doctrine has been held to allow the government to tell hard-fact lies (accounting figures re the public debt) with impunity, where the intention is to suppress a disfavored political viewpoint. Here’s Judge Alsup of the San Francisco district court, affirming a sweeping government right to lie in a decision perfunctorily affirmed by the Ninth Circuit. He’s repudiating a First Amendment suit for a declaratory finding of misrepresention:

    “Plaintiff seeks relief in the form of an injunction whereby this Court would regulate what the Treasury can and cannot say on this subject. This remarkable proposition has no support in the law. Our elected leaders necessarily adopt policy positions. By virtue of their ‘bully pulpit,’ they necessarily receive more attention than the rest of us. Nonetheless, it cannot possibly be the law that this circumstance violates anyone’s right to say whatever they want about public policy. To rule otherwise would invite thousands of lawsuits by those seeking to regulate through the courts what elected officials and their appointees can and cannot say in support of public policy. This would be an unthinkable result. Mr. Johnson’s claim is rejected on the merits.”

    See Ninth Circuit Leaves Door Open To Suit Against GAO RE Coins Act at http://www.opednews.com/articles/Ninth-Circuit-Leaves-Door-by-Clifford-Johnson-Accountability_Coin_Constitutional-Rights_Freedom-140715-527.html

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