While the Church and State articles are certainly part of this, these articles are more about freedom of speech and of the press.
This section gave rise to two other sections, to be ported to this site in the near future, one on discrimination and another on intellectual property rights.
The first amendment in the Bill of Rights is often cited in connection with freedom of religion; yet it would better be understood as freedom of thought and expression. It protects not only religious belief but religious and political speech, publications, and gatherings. We call these rights freedom of speech, freedom of the press, freedom of religion, and freedom of assembly, but they are together because they are different facets of the same concept, the freedom to believe what you believe and to express your beliefs without fear of arrest. They share common roots, largely in the work of Baptist theologian and activist Thomas Helwys, who was imprisoned by King James for publishing the assertion that a man was responsible before God for his own faith and therefore the King could not dictate what his subjects must believe. It was a freedom of conscience, and one of the pillars of the modern concept of the right to privacy.
Much of our modern understanding of this freedom comes from Supreme Court Justice Oliver Wendell Holmes, whose dissenting opinion in Abrams v U.S. 250 U.S. 616 (1919) is the most cited dissent in case law. Holmes is the originator of the suggestion that free speech does not cover shouting "fire" in a crowded theater, and drew the line that speech which clearly threatens or directly incites dangerous or illegal actions is not protected. However, the issue is whether speech itself can be made unlawful, to which Holmes wrote, "Congress certainly cannot forbid all effort to change the mind of the country." He continues (emphasis mine):
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition....[but] the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment....While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country....Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants...making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
The concept of tolerance has become badly misunderstood over the past generation. Many believe they are tolerant when they are merely apathetic: not caring about someone's opinion is not tolerating it. In order to exercise tolerance, you must first have a strongly-held opinion on a subject that matters to you, against which someone else holds a contrary opinion. If for example you think religious beliefs are irrelevant, it is not tolerance to regard all as equally irrelevant; tolerance means that you are firm in your own religious convictions but recognize that others might hold different opinions on the subject and should be accorded the respect for theirs that you in turn expect for yours. Those who hold opposing beliefs about abortion, homosexuality, social welfare programs, foreign military involvement, immigration, or any other controversial subject can exercise tolerance (or not) while arguing for their respective positions, by acknowledging that the opposition includes at least some intelligent persons worthy of respect, by not being dismissive of their position or their arguments, and by engaging in rational discussion of the reasons on each side. (There are such persons on both sides, and if you deny it and are dismissive of their arguments you justify their dismissive response to yours.) If you think the answer does not matter, you are not being tolerant but indifferent.
We are entering an age in which speech is becoming restricted. It has been happening for some time, and needs to be addressed before we have surrendered our right to say what we believe.
I have long been a fan of Christian science fiction author Ray Bradbury, having read a number of his books and stories decades ago in high school. If you have any interest in the concept of freedom of expression, his classic 1953 novel Fahrenheit 451 is a must-read (the movie does not adequately capture the key issues). It portrays a dystopian future in which books are outlawed, and the penalty for owning a book is having all your property burned and your life forfeited. What is interesting, though, is the argument mentioned in the book which explains why books are illegal: nearly everything that is worth writing offends someone.
Examples are easy to find. Most westerns are offensive to Native Americans for their poor portrayals of that culture. Italian Americans object to gangster stories for the suggestion that they are all criminals. Ensign Pavel Chekov, with his Russian caricature identity and intentional Davey Jones wig (of The Monkees, to attract a younger audience), probably did nothing to assuage Soviet complaints that an American television show portrayed the future in space as entirely crewed by Americans. Fiction is almost necessarily laced with two-dimensional characters, because you cannot give full portrayals of every waiter, taxi driver, police officer, hotel maid, and the myriad of other characters who create the background of the story, and some of these will suggest stereotypes, and stereotypes are always offensive because no culture, no people, is monolithic. Not all corporate executives are mysogynists; not all plumbers are wardrobe-challenged; not all homosexuals are effeminate or artistic; not all blondes are ditzy. Yet we create such stereotypes for our entertainment, and even when they are not intended to be humorous or offensive they might be to those who are particularly sensitive. Yet if we ban all speech that might offend anyone, we find ourselves in a world in which no one is permitted to speak.
That brings us to the problem of the modern crime known as "hate speech". It is actually a multi-layered problem, in part because it has one meaning in the vernacular and a different meaning in law, and in part because thanks to the Internet we have international speech that was never intended to be more than conversations with local friends in a world in which the concept of what speech is unlawful varies from country to country. For example, several countries make it criminal speech to deny that the Nazi Holocaust is a real historic event, and in some of them it does not matter whether the person is a citizen of or makes the statement within the country as long as the statement reaches citizens within the country.
Within the United States, speech has long been protected. We can divide what is popularly called "hate speech" into two categories:
Yet there is significant pressure to change that, to make it not only socially unacceptable but actually criminal to express opinions that are contrary to those of the ruling party or the ascendant intelligensia. Should it be illegal to use divisive language, dehumanizing metaphors, flawed arguments, or false information that creates a climate of hate or prejudice? The National Telecommunications and Information Administration thinks it ought to be. In the minds of some, the fact that less than a century ago abortion was a form of felonious assault and sodomy a form of statutory rape does not justify anyone holding such opinions today. We should all embrace the enlightened opinions of the reigning progressive movement.
However, language which "creates a climate of hate or prejudice" is vague and general enough that it brings Bradbury's vision into focus. As Justice Holmes reminded us, we must protect
the expression of opinions that we loathe and believe to be fraught with death,or in the words of Evelyn Beatrice Hall,
I disapprove of what you say, but I will defend to the death your right to say it.It is incumbent upon us to allow each other to hold and express opinions with which we disagree, and to treat them with respect. To do otherwise is to abandon our own right to believe what the ruling party disapproves.
We noted that some countries make it a crime to claim that the Holocaust never happened. We expect this in Germany, and Belgium, and some other countries immediately affected by the catastrophe, but there was a criminal conviction for such talk as far removed from the location as Canada. Most of my readers, though, see no problem here. After all, this is the denial of a historic event, coupled with a racist claim that it was invented by those who claim to have been its victims. Every intelligent educated person in the world knows that there was indeed such an act.
The phrase History is written by the winners has been around for a long time, and is attributed variously to Napoleon Bonaparte, Winston Churchill, and George Orwell. Its presumed meaning is that we do not know what really happened, only what those who won the wars want us to believe happened. There is an inherent logic to it--after all, everyone paints himself in the best possible light, which includes painting his enemies as worthy of despite, and ultimately the people who won the war are going to give their side of the story. Yet perhaps we might have foreseen that this notion would in the modern age be turned against reality: since history is only the story told by the winners, whoever can tell the most credible story ultimately gets to decide what the world believes really happened. Persuade enough people that Nixon was framed for Watergate, that Lincoln was a racist, that a secret organization called the Trilateralists always chooses our Presidents, and suddenly that becomes the official version. Argue that the Holocaust never happened, and do it effectively enough, and for practical purposes it will cease to become part of recorded history.
So perhaps it is of no consequence that in some countries Holocaust denial is a crime; we do not want people to believe such an atrocity never happened, so we do not want such a message espoused.
What, though, if it is your history someone wants to erase?
Imagine something like the Internet, but imagine that some organization controls it--that Google has a board of censors which carefully determines which information can be found and which simply does not exist. This is the sort of thing Orwell envisioned in his 1984: whenever someone fell out of favor, a search was made for all past newspaper articles speaking well of that person, the articles rewritten to show what a terrible person he actually was, and corrected copies of all these papers delivered to all libraries, so that the affirming articles no longer existed. It would not work that way today; rather, the ruling powers of our culture would label certain ideas correct and other ideas nonsense, and anyone who held to those other ideas would be marginalized as a conspiracy theorist or delusional nutcase.
Yes, in this particular case we are talking about criminalizing a claim that a well-established historic event never happened; but what if we did that for other information? The resurrection of Jesus of Nazareth was called by one historian the best attested event in all of history; it has been rejected as a completely unsupported fantasy by others. Should either side be able to make the expression of the opinion of the other side a criminal act? There are many facts of history that are inconvenient for someone--that European settlers and their descendants drove Native Americans onto reservations, that east Africans were the primary agents in the sales of west Africans into slavery in Europe and America. What of other notions--make it illegal to claim that there is, or is not, global warming, or to support evolution or creationism, or to argue for or against intelligent design, or to say that fetuses are or are not human lives, or homosexuality is or is not genetic? As Justice Holmes noted, it makes perfect sense to make speech with which you disagree illegal. In the long term, however, someone will make your ideas illegal. Your right to think and speak your mind is ultimately dependent on your recognition of the same right for everyone else--even for those who would deny history.
You may have seen this: a black woman in New York successfully sued her employer because her supervisor repeatedly called her a "nigger" when berating her. What makes the case interesting is that her supervisor is also black. His defense was that the word "nigger" is used among blacks as a term of endearment. The jury did not decide whether that was ever true, but did decide that in the recording she had made of one such conversation there was nothing endearing about it. She was awarded an amount in six figures.
Yet what he said was certainly true. Blacks do use the word affectionately between each other. They may take offense when others use it, but it is often an expression of friendship among themselves. It certainly seems that it was not about what the manager said, but how he said it. In a separate incident, it is reported (without details) that a supervisor in a state office referred to a particular chocolate candy as "nigger babies", and also used the word with reference to the current President of the United States, and the state agreed that it was perfectly legal for him to do so. Just as it is perfectly legitimate for a preacher to say that you're "going to hell", or the American Kennel Club to call half of its contestants "bitches", it is only the use of these words in an individually insulting context that is legally objectionable.
On the other hand, it is not at all clear that she would have won had he called her something else. Your boss can call you names; he can probably call you vulgar names. If he calls you an idiot, or a smeghead, or a son of Mordor, you have no recourse. It is because this is a racial epithet that it matters, because it is a denigration of her as a member of a protected class. She won because a manager used a word that is a derogation of those of African extraction and she is an African American. She would probably have won had he used a word derogatory of women. She probably would not have won had it been a derogation of some other sort--had he used words that are derogatory of Jews, or Italians, or Poles, none of which apply to her. Your boss can insult you; he just can't do so by attacking you for being a member of a protected class.
That also means that if you happen to be a straight male caucasion Protestant, you can be called anything, no matter how offensive, with no recourse. You are not a member of a protected class. There are plenty of derogatory terms for European ancestry of various sorts, but somehow most of us have gotten past the petty quarrels that once (and perhaps in some places still) separated English from Irish and Scottish, Swedish from Norwegian, Czech from Slav, and which made Italian and Polish immigrants the butt of hundreds of offensive jokes once they replaced the Irish in the lowest tiers of society. We want the world to be a better place in which minorities are treated with respect; to achieve it, we will prosecute anyone who offends the current minorities, but allow insults that do not attack those particular minorities.
The word "nigger" is particularly interesting, because it was not always offensive. Blacks were called "negroes" for centuries, and in some dialects it was slurred to the shortened form. Some, mostly in the American South, would sneer it derogatorily, and so it became offensive, and by the fifties the accepted term (used in the name of the N-Double-A-C-P) became "colored". That was also sneered, and "black" replaced it by the sixties, and before the sixties were completed it became "African American"--too big a mouthful to sneer effectively, but seriously, it was never what was said but how. I am not interested in doing so, but I must ask, are we permitted to hate other classes of people, and express our hatred through insult and invective, or not? If not, does it equally protect everyone, or are there special categories of people who are protected because someone, usually their ancestors and not themselves, was mistreated? Equal treatment under the law should mean that we are all equally protected. If someone calls a me "honky" or "gringo" or "WASP" or "fundy" or "W.O.P." in a derogatory way, am I also protected? Or does this kind of protection only extend to those whose ancestors were most recently so abused? Should we accept the dystopian future Bradbury envisioned, in which no one can speak for fear of offending someone else, or the principles propounded by Holmes, to protect all expression of personal opinion that is not directly inciting violence?
If you are reading this on the Internet, odds are that you are at least aware of the "Like" buttons on Facebook. What you might not realize is that clicking such a button is regarded, in some contexts, as a form of political speech.
This concerns me, at least, because of how I regard such buttons. I am in general restrained in my approach to such buttons, particularly when they refer to pages--I do not wish to be credited with endorsing specific companies or political parties or the like. I will "Like" posts made by people I know, or people they know, but try to avoid doing so for reposts of statements from famous people who have their own agenda, because even if I like what they said in this statement, I do not wish necessarily to support what they say otherwise. On the other hand, if someone I actually know, even peripherally, is trying to launch a business or sell a book or record or otherwise promote something of which I am not necessarily fully informed, I will usually click the "Like" button after a cursory examination merely to let my readers know that this is someone I know.
And although it has not yet happened, since many of my online friends are politically involved (why else would they read these columns?), it is entirely likely that one of them will run for office, and I would probably "Like" that, not because I could vote for him (or, note that in Indo-European languages "him" always includes "her" unless otherwise indicated, while "her" always excludes "him") or even that I would or will, but only that I approve of the fact that this person is running for this office and thought my friends and readers should be alerted to that fact. Every two years I am re-nominated to serve another term as Chaplain of the Christian Gamers Guild, and I always applaud and encourage anyone nominated to run against me, because I believe in the democratic process, and that process involves offering choices.
That is why it was of some concern to read that employees of the Hampton Sheriff's Office in Virginia were fired because they "Liked" the campaign page of Jim Adams, who was running against the incumbent sheriff. They claimed in response that clicking the "Like" button constituted "substantive" political speech, which was therefore constitutionally protected, and that they could not be fired for having supported the losing candidate.
Fortunately, the U. S. Court of Appeals in Richmond agreed, likening the clicking of that button to posting a political sign in your front yard, already ruled protected "substantive" speech by the Supreme Court. That, though, raises a host of other issues. What if your click is not political? If I "Like" a company for any reason or no reason, can I lose my job if my employer sees that as promoting the competition? If I like the photography of a friend who is later arrested for involvement in child pornography, am I suddenly on the suspect list of a police investigation? Am I free to "Like" a page with no more meaning than, "my friends and readers should take a look at this", or is it now the case that to "Like" casually becomes a connection between me and everything the page represents? As someone who manages two such pages, I would hope that it is possible for you to "Like", for example, the Christian Gamers Guild not necessarily because you are a Christian or a gamer, but because you think it's good that such a group exists and does what it does, and that you have friends who would be interested, even though it is of no interest to you personally. In political terms, it seems to me that a "Like" is the equivalent of "this candidate is worth at least a look", not a statement of intent to vote for him. I like the local Radio Shack franchise, not because I think it the best place to buy everything, but because I think it the best place to buy some things, and I would hate to see it go out of business. "Likes" are not marriage vows. They are casual. Let no one make more of them than we the users ourselves do.
We have at least twice already touched this subject, once when discussing the concept of hate speech and again on the subject of epithets, but there is another aspect to it.
Others have written and spoken about this, but it struck me particularly because last year, according to my Facebook profile on October 13th, I read an article by a black author published a few days earlier entitled America Needs a White Republican President. The author's contention was not that white Republicans make better executives, but that no one ever claimed that opposition to the policies of such a person was "racist". If you say that Obama is pursuing progressivist liberal policies toward the establishment of a socialist state in this country, someone will accuse you of being racist, according to the article. It was interesting, but I wondered whether any intelligent person would ever really make that mistake, to assume that those whose criticisms of the President are patently about his policies are really making those criticisms because of latent racism. I don't assume that people who criticize my articles are prejudiced against me; I assume that they disagree. To assume otherwise is to insult the integrity of those people. You would have to be pretty stupid to hold that kind of view.
Then a month later it was all over the news, that Oprah Winfrey asserted people who criticized the President did so because they are racist.
In fairness to Winfrey, that shock snippet headline does misrepresent what she said. She said only that this is true "in some cases and maybe even many cases". Sure; but how is that relevant? There are undoubtedly many people who hate Bush because he is white, who hate Jane Fonda because she's an anti-war activist, who hate Oprah because she is rich, people who hate cops, who hate beggars, who hate welfare recipients, who hate conservative Christians, who hate Jews, who hate Poles, Italians, Irishmen, Scotsmen, Germans, Frenchmen, Spaniards, Portuguese, Greeks, Turks, Swedes, Danes, who hate football players, cheerleaders, musicians, artists, factory workers, fast food workers, office workers, road crews, blondes, redheads, midgets, fat people, skinny people, bald men, pseudo-hippies, dog owners, cat aficianados, environmentalists, industrialists, and the list goes on and on and on. Every group is hated by someone, and the haters sometimes outnumber the group. Of course there are going to be some people who hate President Obama--and Oprah Winfrey, and Kevin Jackson (who wrote that article)--simply because they are black. There are those who object to what I write simply because I am Christian. I still extend to everyone the benefit of the doubt, that if they criticize what I say it is because they disagree with what I say, not because of who I am or what I represent to them.
So feel free to tell me that you disagree; please, though, don't tell me that I'm racist simply because I think it should be possible to criticize the President without being called racist.
I wrote about racism, and particularly about the charge of racism, the claim that those who criticize the opinions or actions of a member of another race or class or group do so because of that irrational hatred or despite toward that group. I made the comment,
There are those who object to what I write simply because I am Christian. I still extend to everyone the benefit of the doubt, that if they criticize what I say it is because they disagree with what I say, not because of who I am or what I represent to them.In the days which followed, I wondered whether the statement was true, and whether it was credible; I thus decided to take a moment to speak personally of my own experience as a target of discrimination. That will sound disingenuous to some; after all, I am of European extraction and a member of the dominant religion in the United States, at least historically. Yet the discrimination was real, and even in its own way vicious.
In 1997, when I began publishing articles on the Internet (I had some experience in newspaper prior to that) I posted an article for which I had been seeking a publisher for most of a decade, entitled Confessions of a Dungeons & Dragons Addict™. It was intended to inform Christians that role playing games (the real ones, not the computer simulations) were not evil works of the devil but good forms of entertainment in which they ought to become involved. I got a few letters from Christians who wanted to argue that I was wrong and deceived, and quite a few more from people, some Christian and some not, thanking me for answering the questions and concerns they had in relation to such games; I also got a few letters from gamers. Most of them never got past the title of the article before firing an attack against the author, and admitted as much rather apologetically when confronted with that observation and persuaded to read what they were vilifying. One, though, when I responded that the article was not an attack on D&D™ but a defense, responded that he did not care, and his objection was that I was encouraging Christians to accept and to play role playing games. He did not want people of faith, or at least of that faith, becoming involved in his hobby.
I don't know that it harmed me, although in publishing they say that every person who writes represents a hundred others who did not, so I cannot help wondering how many others out there never gave me the chance, never got past the initial impression of the piece to discover that I was not their enemy, or even who still consider me their enemy despite having read it. It strikes me as irrational; I would be interested in how they rationalize it.
The article did me more good than harm, though. It introduced me to the Christian Gamers Guild where I have served as its international chaplain for about fifteen years. Current Dungeons & Dragons™ publisher Wizards of the Coast eventually thanked me for the piece, with a very nice gift, saying that they had five people on staff whose primary job was answering such questions, and my work had made theirs so much easier. Just recently the article was republished in the collection Faith and Gaming: Revised and Expanded Edition. I know the critics are not merely wrong but narrow-minded, shallow, and prejudiced. That does not completely remove the sting of the criticism, but then, anyone who enters any public job, from writer to musician to politician, has to have a bit of a thick skin, because criticism comes with the territory. It just hurts less--really--if you are criticized for what you say instead of for what you are.
It is an interesting case: Garcia vs. Google Inc et al., 9th U.S. Circuit Court of Appeals, No. 12-57302. Google, megacorporate owner of YouTube, has been ordered to remove from the YouTube library an anti-Islamic video entitled "Innocence of Muslims", not because it is offensive to Mohammedans nor because it sparked protests across the Islamic world, but because it violates the rights of one of the actresses in the film.
The actress, Cindy Lee Garcia, claims that she has a copyright interest in her own performance. That seems wrong on its face--an actor's contribution to a movie is a work for hire, and unless the contract says otherwise the payment received for the performance fully compensates him for his work. The performance belongs to the film company. They can edit it, include it in clips, and use it as they choose with no further permission or compensation. However, there are wrinkles in this case.
The first wrinkle is that Garcia was not hired to make this movie; she was hired to be part of some other movie that was never finished. Her performance sufficiently impressed the filmmakers (and perhaps they were on a tight enough budget) that they took the unused part and released it in a different movie. That stretches their rights of ownership a bit. It means she appears in a film for which she was not compensated, completely unrelated to the film for which she was hired. This isn't something like That's Entertainment, in which the audience is told from what film the clip comes; it is more like Dead Men Don't Wear Plaid, in which scenes from other movies are spliced into this one to create a story--but that those actors were all dead and those films all released, and thus this performance appears to be unique to this movie.
Additionally, Garcia claims that the scene is dubbed: those were not her lines, and she never said those things. Yet should that matter? Dialogue in movies is often dubbed; modern movie production usually has the actors record their voices separately from performing the roles, and then syncs the words to the images. Sometimes voice actors are hired to replace lines in a theatrical release which are inappropriate for television audiences, or to create a foreign language version of the film. All of this is part of the expectations of the actors.
Her best argument would seem to be that they used her image and acting in a film for which she was not under contract, and so they owe her for this. But then, who wronged her? It was not Google--their policy allows legitimately produced films to be posted to their site, and they would be discriminating against the producers were they to deny access for this film. Her claim is against the people who made the movie, primarily Nakoula Basseley Nakoula; they are the ones who allegedly used her image without her permission. She can sue them; she can ask for an injunction requiring them to withdraw all copies of the film. To have Google remove the video is censorship; Google did nothing illegal or negligent in allowing it to be posted.
It should not matter that an actress is shown speaking lines she never spoke which someone finds objectionable; after all, even had she spoken them herself, they would still be what is called "acting", which means they are the words given to her by a writer, and they might not even be the opinion of the writer. In this case, though, it apparently does matter--extremists who lack the ability to distinguish between an actress and a character have threatened the actress for what her character says in the film. Certainly the film is offensive to Muslims; it is not the fault of the actress. Nor is the fact that it is offensive to Muslims a valid reason for censorship--most of our movies and our television shows are offensive to Muslims, and indeed to conservative Christians and Orthodox Jews. Once we allow censorship based on the fact that something offends, we are headed for the world of Ray Bradbury's vision. Google is right; she has no claim against them, whatever the dangers to her.
That the decision by the typically liberal 9th Circuit court was two-to-one says that someone agrees with that.