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The Responsibility of Free Speech 


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

These forty-five words encompass the most basic of American rights: freedom of religion, freedom of speech, freedom of the press, the right of assembly, and the right of petition.

One might argue that it’s the basis, not only for our system of government, but our entire culture in these United States. The freedom of expression looms large in our political landscape; but also in our view of individual expression and the freedom from oppression.

But since nearly the beginning, it was understood as a delicate balance between the rights of the individual and the good of the whole.

This morning I was flipping through Facebook and I came across a series of disturbing posts concerning an off-campus residence at Old Dominion University who’s residents had decided to paint signs on bedsheets that hung from their balcony that read things like,

“Freshman daughter drop off”
“Rowdy and Fun. Hope your baby girl is ready for a good time…”
“Go ahead and drop off Mom too…”

This was clearly meant to be funny, and to be seen by students and their parents who were dropping off their freshmen girls for their first year of college.

There is no question that this is protected speech, according to the First Amendment. These frat boys did not, in fact, break the law as far as I know. But that doesn’t mean there are no penalties.

Brad Beacham, executive director of Sigma Nu’s national chapter said in a statement Monday,  “Any fraternity member found to be responsible for this reprehensible display will be held accountable by the fraternity.” And the University unilaterally suspended the fraternity chapter while they investigate the incident.

I think I understand this. I really do.

I was a young man once. Me and my friends had a sort of gallows humor that we didn’t expect to translate to everyone. We made inappropriate comments to each other and about others. We were just having fun. We were young and stupid and had a sometimes childish sense of humor.

But here’s the thing.

There were more than 3,900 reports of forcible sex offenses on college campuses nationwide in 2012, up 50 percent over three years. Even those numbers should be read with caution because they only reflect the total of alleged incidents, and do not include unreported offenses. And those numbers have reportedly risen still.

One study put the incident of sexual assault on college campuses at 1 in 5. That’s 20%. That’s insane. If you thought your daughter had a 1 in 5 chance of being raped at college, what would do you? And while you’re thinking of that, ask yourself, while you’re not doing it?

I’ve read comments by researchers who dispute those numbers, saying that too many of the cases involve a sexual incident that the researcher, and not the victim, described as rape. So maybe it was aggressive touching and not involuntary sodomy, but as one researcher put it, “It’s too sad the we as a society need it be a large number for it to catch our attention. Isn’t 5 percent too much? Isn’t 2 percent?”

The fact is that we have, one way or another, created an environment where young women are not safe on college campuses, and men are allowed, if not encouraged, to be predators.

The saddest thing I heard from the story this morning at Old Dominion, was that one girl was worried that she had made the wrong decision and was considering turning around and going home. Only after she saw the backlash on social media did rethink her decision.

Doesn’t that say enough about the impact of this behavior?

To these young men, it was just a harmless joke. For one young women, it was potentially traumatizing enough to make her rethink her dreams. That’s not harmless fun. That’s institutionalized terror.

I doubt I’ve ever been accused of being politically correct in my life. I’m a big believer in free speech and the free expression of ideas. I believe it’s the one thing that truly makes this country great. Not freedom, to quote that silly HBO show, lots of people have freedom. But few countries, even in the western world, hold freedom of speech in the same esteem as the American people do. Even when we don’t like what they other guy is saying.

It has long been established that free speech isn’t absolute. Speech that incites others to eminent violence, false statements of fact, obscenity, child pornography, threats, and speech owned by others are all completely exempt from First Amendment protections.

There is the whole “you can’t yell ‘fire’ in a crowded theater“ which actually is an outdated legal argument and comes from a, not so surprising for the time, 1919 Supreme Court decision that decided that Charles Schenck, who was protesting the draft of the first World War by distributing 15,000 flyers advocating resistance to the draft, was in fact guilty of presenting “a clear and present danger“ to the government itself.

According to the Court, he hadn’t endangered life, as falsely shouting “fire” in a crowded theater would have, but he may as well have.

That ruling stood until 1969 when a different sort of defendant found himself fighting a different kind of battle.

Clarence Brandenburg, a Ku Klux Klan (KKK) leader in rural Ohio, held a rally in Hamilton County in the summer of 1964 and advocated “revengeance” against “niggers”, “Jews”, and those who supported them. He was convicted of inciting violence, fined $1000 and sentenced to one to ten years in prison.

The U.S. Supreme Court reversed Brandenburg’s conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation. The Brandenburg test, as it become known, favored allowing as much speech as possible and relying on the marketplace of ideas to reach a favorable result.

Despite what many think, the First Amendment does not guarantee you the right to say whatever you want without social reprisal. The first amendment protects you from prosecution from the government, not from a private citizen. Libel and slander are real things and not protected.

So if you decide to trash your boss, and you get fired because of it, that’s probably perfectly legal. In fact, if your statements were libelous, you might be the one on the hot seat in court.

If you’re the star of a television show and you decide to espouse an opinion unpopular with a majority of Americans, causing advertisers to pull their support and the network to ultimately fire you, you are not protected by the First Amendment. The right to be a celebrity is not a right enshrined in the Constitution or the Bill of Rights.

I actually agree with the Brandenburg test. I like relying on “the marketplace of ideas to reach a favorable result.“

This is what people don’t understand when they try and defend racist or homophobic or otherwise ignorant people and their ideas. I’m not saying they should be put in jail.

But if you’re caught on tape making racist comments about Black people, for instance, then maybe you don’t get to own a basketball team anymore. It’s that simple.

It doesn’t even matter if I agree with that or not. It’s a free market economy, and the NBA is a private organization that relies heavily on the Black community, not only for its players, but as a fan base. So, that’s the way it goes. That’s freedom.

Sometimes even the media is useful. Everything doesn’t have to be against the law, but if you piss enough people off in this country, it could very well fuck with your livelihood. You don’t even need to be famous. You could own a car dealer. You could WORK at a car dealer.

I even agree with people who complain that everyone has gotten too politically correct. That we have lost the ability laugh at ourselves. It does seem that way sometimes.

But maybe that’s okay for awhile.

We’ve spent almost the entirety of American history trampling on the rights of others, almost without thought. Indians. Blacks. Asians. Mexicans. They were all just grist for the mill. As long as you were white, you were good to go.

So maybe it’s time we took a break from everything being fair game. Maybe it’s time to worry a little bit more if what we’re doing or saying is truly offensive to others.

I’m not talking about the trumped up offense of the self-righteous.

I’m talking about the girl who was looking forward to leaving home for the first time, traveling with her parents to her college of choice, only to find that it was a scarier place than she ever imagined.

That’s not being overly sensitive. That’s cruelty being allowed to run amok.

If we as a society don’t step up, there is truly no justice in this world.

It’s my job to stand up.
It’s your job to stand up.
It’s no different from the men on the bus in India who stood by while a gang of thugs raped and beat a women to death.

This is your chance to speak up.

What will you do?

About the author

David Todd McCarty

David Todd McCarty is a writer, director, photographer and cinematographer. He writes fiction and nonfiction essays as well as journalism. You can see his commercial work at http://www.hoppingfrogstudios.com

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Writer | Journalist | Storyteller


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