Part I, Lots to Consider:
In All Things Considered, Brad Smith, founder of the Institute for Free Speech, discusses with the WSJ’s Kimberley Strassel thorny issues facing America today. Among overhyped and undercovered topics:
• What does the First Amendment actually cover?
• What are the limits to free speech?
• Should the federal government have any role moderating media comments, and where does the legal system stand on that question?
• How corrosive is “cancel culture” to our broader free-speech tradition?
Kimberley Strassel starts the conversation by recognizing how impassioned debate about free speech deserves some understanding and allowing for broad distinctions. Some individuals really despised Charlie Kirk and came out saying ugly things about him. Following that, after employees got whiff of those ugly things, they disciplined of fired the provokers.
Next came the hue and cry that 1st Amendment rights were being violated. Strassel wants to walk through this with Brad Smith. Strassel suspects that most people understand that a person does not necessarily have an unfettered right to say anything they want in any context. The 1st Amendment actually addresses the rights of citizens with relation to their government,” she emphasizes.
And while there are some laws and restrictions on employers, employers in many situations can fire employees at will for many types of speech. Can you, Brad, walk us through some of that?
Brad Smith acknowledges the good points brought up by Strassel. “The First Amendment applies against the government, so the federal government can’t censor your speech, with a handful of exceptions. The federal government can’t order you to say certain things, with perhaps a small number of exceptions”, clarifies Smith.
On the other hand, as Smith notes, the 1st does not apply to private actors. … if you go into your place of employment and you announce that you’re a MAGA supporter or you’re a MAGA hater and your employer disagrees, he can say, “Well, I’m not going to have you here.” The employee can fire you, terminate your employment. That is constitutional. It’s not a violation of your 1st Amendment rights.
Smith also brings up a couple of kickers, one of which is relevant to some of this debate: the government cannot do indirectly what it can’t do directly. If directly doesn’t work, then indirectly also doesn’t work.
Brad Smith: So if the government could not censor your speech, if the government could say, “You can’t say that, you can’t run that newspaper column,” or whatever, it cannot try to do that indirectly by threatening.
Common Carrier Doctrine
Smith explains: While an employer generally can terminate you or refuse to serve you just because he doesn’t like your opinions, if you’re not being disruptive, that is what’s called the common carrier doctrine (common carriers like airlines, etc.). An employer can boot you off if you’re being disruptive, but he can’t boot you off the plane just because he learned that you’re a Mitt Romney supporter or something.
As an example, Smith refers to a handful of states that do have prohibitions on political discrimination in employment, but even that wouldn’t always apply just to what you said.
In other words, if somebody says, “Well, we don’t hire Republicans,” in those states, (California’s one that might be a problem).
On the other hand, if you said, “We don’t hire people who expressed joy or gleefulness at the murder of someone”
Smith admits to being unsure whether that would or would not violate the California statute.
Cancer Culture
Strassel asks Smith, a stalwart supporter of free speech, what he thinks, generally, about what in recent years we have been calling cancel culture, or at least that’s the term that has been used. On the conservative side, some haven’t liked it when folk that they wanted to hear were canceled (consequence culture). Do these events showcase the sort of private pressure being brought against someone to fire someone or get rid of someone?
Smith: A great point often missed is “you have a right to speak, but you can you face consequences for it?”
The spirit of the Constitution indicates we should be more open to debate. That is, we need to relearn the art of disagreeing.
Using John Stuart Mill, the famous free speech theorist in the 19th century, as an example, Smith regards a bigger threat to free speech is private shunning and so to .
“We need to fight against that impulse that, again, the spirit of free speech should cross over into our private activities.”
Today, it’s too easy for people to call those they disagree with Nazis. People today must relearn that this is complete lack of perspective that is damaging to discourse and the spirit of the 1st Amendment. We must get back to this idea of recognizing that you’ll be offended from time to time. People will say things that you won’t like.
- Speech is not violence.
- Speech does not make you unsafe.
- Not everyone will agree with you. 75 million Americans who voted for Donald Trump are not fascists that you should be trying to cancel.
The Nation’s Top Law Enforcer
With regards to Attorney General Pam Bondi in the wake of Kirk’s murder, Bondi talked about the “disgusting anti-Semitism that was present on campuses that Kirk was trying to combat. “There’s free speech and then there’s hate speech,” Bondi added, “We will absolutely target you, go after you, if you are targeting anyone with hate speech.”
Strassel brings up two important points to Brad Smith:
- It’s long been the left that for decades has been trying to create and define a category of speech called hate speech and those who care about free speech have pushed back against that.
- While we do have some exceptions to free speech protections, things like that aren’t necessarily protected. Hate speech is not one of them.
Smith concurs with KS that there is no legal category called hate speech that is outside of the 1st Amendment, and there’s no general rule that whatever you think is hate speech is outside of the 1st Amendment. Smith notes how “eye-popping “it was to hear the AG of the United States make that statement.
Pam Bondi did clarify and back off a bit, saying, “If you’re making threats against people,” (and this can be an exception to the 1st Amendment) if you’re making identifiable threats that are likely to incite violence …
Hate speech is perfectly protected, reports Smith.
Part II tomorrow, more on Nazis, Fascists, Bondi, and Charlie Kirk
