On The Constraint Of Free Expression

I wrote the stuff below a few days ago and for some reason didn’t post it at the time. But the arrest of “[s]ix men from northern England . . . after they filmed themselves burning a copy of the Quran on the anniversary of 9/11 and then posted the footage on YouTube [AOL News]” prompted me to post it this evening. What I wrote then and post now applies by analogy to the UK and any other part of the world that thinks of itself as civilized and moral.

One of Ed Brayton’s recent posts reminded me to say something about the City of Gainesville, Florida, sending the pastor who threatened to burn Qur’an’s a bill for security costs. Ed primarily addressed the legality of trying to recover the costs. I want to address another aspect of sending him the bill that Ed didn’t dwell on.
No matter how crazy, no matter how ill advised, no matter how potentially dangerous, the government should not do anything that discourages protected expression whatever form it takes. And sending someone a bill certainly has a stiffening effect, if not on them on others. With the exception of saying something that will have immediate measureable negative consequences on others, as a citizen, I should be able to say what I will about anything anyway I want to say it. If I want to burn something that belongs to me or that I acquired legally to emphasize my point and it doesn’t risk starting a larger fire or creating significant pollution, that is my right. My opinions and my way of expressing them can and should be weighted and perhaps criticized on their merits. But no government official, no General, no Secretary of Defense, no President, should ever say anything other than that such activity, such expression, is protected expression.
Before the proposed Qur’an burning several government officials, including a commanding general, the Secretary of Defense of the United States and the President of the United States and other high government officials condemned the suggested activity while giving no more than lip service to the only public opinion they should have ever expressed, “This is and should be a protected expression.” While individual and group expression should only be limited if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action [emphasis added, Brandenburg v. Ohio],” government official’s should be limited in their response. Where there is no specific requirement, they should at least be self-limiting. Of course, government officials do have the right and, in some cases, even the obligation to address the policy implications of the content of any expression of individuals or groups. Beyond that, they should never address the expression itself.
In other words, a government official can and sometimes should say something like, “I strongly disagree with John Doe’s view concerning (fill in the blank) for the following reasons.” What no government official should ever say is, “I disagree with the way John Doe chooses to express that view.” While I prefer addressing a view with which I disagree, in an open moral society, a private citizen should be free address the view, the person expressing the view or the way that view is expressed.
Just so I don’t get accused of hypocrisy (again), I’d feel the same way about government interference with burning the Bible, the Flag, Ras Shamra Parallels, volume II, or anything else that a person owns and chooses to destroy or desecrate as an expression of opinion. And I think this about whatever that thing may symbolize or whoever may hold other examples of that thing dear. But in most cases, I will likely still think them crazy for wanting to do such a thing and, in some cases, I will think it unnecessarily dangerous.

4 thoughts on “On The Constraint Of Free Expression”

  1. Duane, there are limits on free speech. Remember Supreme Court Justice Oliver Wendell Holmes’ comment on freedom of speech?
    Freedom of speech does not extend to shouting “fire” in a crowded theater.
    This loopy pastor was shouting fire in a crowded theater.
    Do recall who burns books, nice folks, such as Hitler and Savoronala. Of course, we we might also recall that the final destruction of the the library at Alexandria, the third fire, was done by the Muslim conquerors.
    Yes, we should damn well be wary of fanatics. (Note that I did not say be afraid of…) There are better ways to contain and fight fanatics than poking them with a stick… and we should not wait for the 12th Imam.
    BTW, I detest book-burners whatever their persuasion. They are the equivalent of those nice folks who re-write history to suit their purposes. In fact, it’s the other side of the same coin.

  2. This is well said. It’s not what the laws are “supposed” to do, or what the purported purpose of the official action is. It’s what effect it will *really* have. Will it chill freedom of speech? You bet it will. And is that truly unintended? Like hell it is!
    We’re getting laws passed which have very broad scope, and can be used, therefore, by those with powerful connections to silence their foes by just such a process of intimidation.
    I am an Englishman. I have lived in England for 50 years. But I did not know, until yesterday — Thursday 23rd September, 2010 — that it was unlawful to burn a Koran, and that anyone so doing would be arrested and charged with some vague offence carrying very heavy punishment. Nor, I suspect, did anyone else. The authorities have just decided that it is now an offence. Someone whose name we don’t even know decided yesterday, without debate, discussion, or recourse to parliament. And suddenly we must all be wary in case we are denounced for making a protest.
    In unfree countries everything is illegal unless it is known to be allowed. In unfree countries the officials can always arrest you for something. That’s what we’re looking at here.
    Of course the men may be found not guilty. But that’s no benefit to them or us. They will be dragged through the courts for months, maybe years. The process itself is a torment. Ordinary people in the UK have no access to lawyers, no right to demand prompt trial. People will be intimidated from saying what they think, not for fear of conviction, but from fear of the process.
    This abuse of the legal process to punish people convicted of no crime has been labelled “lawfare” by writers such as Ezra Levant (himself a victim of 3 years of such “investigation”). It’s been used, especially by Islamic groups, precisely to censor criticism of them. It could be used by any special interest group which is viewed approvingly by the establishment.
    These are terrible times for freedom of speech. I appreciate that you have spoken on this. I have grave doubts that anyone in the UK will dare even criticise the police action.

  3. Rochelle,
    Of course, there are and should be constraints on some kinds of free speech. Your example is classic. But in US law, Brandenburg v. Ohio (1969) added immediate inducement of lawless action to the legal doctrine, at least with regard to political expression. I would hope it added immediacy of harm to religions expression also. But I don’t think this has been tested.
    Yes, some of history’s great villains were also book burners. And while I don’t like book burning very much that doesn’t mean that I necessarily think that all book burners are villains just because most are. In your examples, those villains and fanatics wanted to burn books from (and in) other people’s libraries and not from their own libraries. I see this as a rather large distinction.
    However strong my feelings may be against book burning, I feel that it should be protected expression.
    Thanks for your helpful insights and, of course, for your agreement and your link.

  4. Roger, that is dreadful news… It was bound to happen sometime with the way things are going.
    Duane, I understand your position. True, the examples were burning of other peoples’ books. The problem is that, once people start book burning, they don’t know when to stop. There is a mob madness that sets in. And I have seen the all too predictable behavior of mobs.

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