This morning Morning Feature will dig deeper into some issues related to free speech. (More)

The Tuesday Digging Deeper Morning Feature surveys an ongoing news topic through multiple sources to invite in-depth conversation. Please check back over the coming days for additional comments. This week’s Digging Deeper topic is free speech.

A news story out of Seattle yesterday coupled with the recent discussion about inflammatory political speech after the Tucson shootings started me thinking about free speech: what it means to me, what it means to others and if there are or should be any limits on it.

This is the Seattle story:

Recently, a Seattle-based grassroots group called the Seattle Mideast Awareness Campaign purchased ads on the side of a dozen public buses in the King County, Seattle bus system. The ads featured the image of a destroyed Palestinian home along with the words “Israeli war crimes — Your tax dollars at work.”

Mideast issues are extremely inflammatory and the Israeli-Palestinian issues are some of the most heated. As you can imagine these ads caused a great deal of alarm.

Here are some of the reactions:

Metro’s initial acceptance of the ad from the Seattle Mideast Awareness Campaign prompted an onslaught of complaints by email and phone, and three other organizations said they planned to run counter-ads portraying Israel as a victim of Palestinian terrorism.

Metro and County Executive Dow Constantine initially said the ad was consistent with county ad standards and that it would violate the sponsor’s free-speech rights to cancel it.

A few days later, Metro canceled the ad and said it wouldn’t accept any new non-commercial advertising until the county adopted a new ad policy. Constantine said in a statement at the time that he had been told by federal and local law-enforcement agencies the bus system “could be vulnerable to disruption” because of the ad and he approved the decision to cancel it.

“The escalation of this issue from one of 12 local bus placards to a widespread and often vitriolic international debate introduces new and significant security concerns that compel reassessment,” Constantine’s statement said.

The ACLU of Washington has sued to allow the signs to be placed.

The lawsuit in U.S. District Court claims that King County violated the group’s First Amendment rights and asks the court to order the county to run the ad for four weeks on the sides of 12 buses, as Metro and its ad agency originally agreed to do.

ACLU Executive Director Kathleen Taylor had this to say at a news conference:

… if there were threats to disrupt buses, the appropriate response would have been to “address the criminal conduct, not the speech.”

“The purpose of the First Amendment,” Taylor said, “is to protect speech that is difficult to hear and that makes people uncomfortable. Mild speech doesn’t need our protection.”

Metropolitan King County Councilmember Pete von Reichbauer issued a statement saying:

the county must serve bus passengers “without inadvertently making them become the targets of deranged individuals incited by messages.”

Potentially inflammatory political rhetoric became a hot topic after the shooting in Tucson. A sampling of reactions from that:

We … are deeply concerned about the heated political rhetoric that escalates debates and controversies, and sometimes makes it seem as if violence is an acceptable response to honest disagreements,” said Brady Campaign President Paul Helmke in a statement.

Tea Party Nation founder Judson Phillips condemned the attack on Giffords, but warned backers that the Tea Party movement would have to defend itself from attacks by political opponents.

“While we need to take a moment to extend our sympathies to the families of those who died, we cannot allow the hard left to do what it tried to do in 1995 after the Oklahoma City bombing,” he said.

Gabrielle Giffords in March 2009:

“We are on Sarah Palin’s targeted list,” Giffords said. “The way that she has it depicted has the crosshairs of the gunsight over our district. When people do that, they have got to realize there are consequences to that action.”

So just what is freedom of speech?

Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws. Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy, such as racism, sexism, and other hate speech are almost always permitted. There are exceptions to these general protection, including the Miller test for obscenity, child pornography laws, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors and inventors over their works and discoveries (copyright and patent), interests in “fair” political campaigns (Campaign finance laws), protection from imminent or potential violence against particular persons (restrictions on fighting words), or the use of untruths to harm others (slander). Distinctions are often made between speech and other acts which may have symbolic significance (flag burning).

Fighting words, which are one of the narrowly limited classes of speech, are: “insulting or ‘fighting words,’ those that by their very utterance inflict injury or tend to incite an immediate breach of the peace”.

The most famous exception to free speech is falsely shouting fire in a crowded theatre. From Oliver Wendell Holmes:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

The public forum is an important factor in discussions about free speech:

A public forum, also called an open forum, is open to all expression that is protected under the First Amendment. Streets, parks, and sidewalks are considered open to public discourse by tradition and are designated as traditional public forums. […] Public forums cannot be restricted based on content.

Is a broadcast TV network a public forum? Broadcast TV networks are privately-owned but, because frequencies suitable for broadcast are limited, operate under licenses granted by the Federal Communications Commission.

This United Church of Christ ad was banned:

UCC leader questions ‘arbitrary’ CBS decision to allow Focus on the Family ad

A decision by CBS to allow a Super Bowl advertisement for Focus on the Family, a conservative religious organization, is eliciting concerns from leaders of the United Church of Christ, which sought to buy advertising from the network but had its ads rejected.

“While CBS is reportedly saying that a bad economy now necessitates changes in its policy on so-called advocacy ads, this decision only underscores the arbitrary way the networks approach these decisions and the result is a woeful lack of religious diversity in our nation’s media,” says the Rev. J. Bennett Guess, the UCC’s director of communications. “Because of its own economic circumstances, CBS is affording time to one religious organization while having suppressed another. This sounds as if the broadcasters think they own the airwaves when, in theory at least, they do not.”


Here are some questions to get us started, not in any order and not intended to be all inclusive:

1. When is free speech dangerous?
2. Should dangerous speech be banned?
3. Who decides what is dangerous and who decides what is banned?
4. Should ad placement be completely up to the provider of the forum? For example, should a broadcaster be able to pick and choose which issue ads they want to allow?
5. What are the responsibilities of those who speak freely? Should they be held liable for acts done in response to their exhortations or what others may have seen as exhortations?

Please share your thoughts and additional links in the Comments.


Tomorrow we will follow up on the topic based on today’s discussion and add the additional wrinkle of protest zones at political events and a more narrow view of the public forum.