Not All Speech Is 'Free'

11/01/2007 02:34 pm ET | Updated May 25, 2011

In his recent post about Ann Coulter ('Defending Ann Coulter'), Ron Galloway is misleading as to what does and does not constitute 'free speech' in the United States. In fact, giving wrong impressions about the 'free speech' principle is itself a problem and is often used as a tactic to shut down debate--in particular, debate about media consolidation and the ability of citizens to make choices about what we watch on TV.

Galloway writes:

Ann Coulter simply offers up words. Sometimes bizarre, imprudent words, but simply words nonetheless. For this she has to travel to speeches with a bodyguard.

What is more offensive; Ann Coulter's remarks about 9/11 widows, or women being tortured to death in Saw? Her thoughts on Muslims, or women being tortured to death in Saw 2? Her writing on Bill Clinton, or women being tortured to death in Saw 3? Need I comment on how offensive last weekend's grosses were for Saw 4?

But it's all free speech, and after the last few years, that's one of the few liberties we have left to hold on to.

Is it all 'free speech'? Not a chance.

Galloway's goof is to float the argument that "all speech" is protected by the Constitution. The implication that always follows from that myth is that the act of criticizing offensive speech somehow opens one up to the charge of violating the Constitution. So, if we believe Galloway, Ann Coulter uses her position in the media to state defamatory falsehoods about gays and Jews and women and Muslims and everyone except Ann Coulter, but--if someone stands up and speaks back, that is somehow a problem.

It is incredibly easy to demonstrate why the myth 'it's all free speech' is not true.

Imagine, for example, if Ann Coulter had showed up on the Danny Deutsch show and, in response to the question about religion, had not said something stupid about 'perfecting Jews,' but had instead said this:

I will personally send $10,000 to the very first one of your viewers who goes out and kills their neighbor's kitten

If Coulter had said that (she didn't), would it fit the rule 'it's all free speech'? Not in this country. But why not?

The answer is a concept that people who argue 'it's all free speech' always seem to forget: fighting words.

According the 1942 Chaplinsky v. New Hampshire ruling which established this principle, 'fighting words' fall outside of the protections of free speech as follows:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting words" those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Now, a word of caution. It is very easy to see how the idea of 'fighting words' can be abused, and since 1942, the courts have narrowed the definition down considerably. However, narrow the doctrine becomes, however, it still has the effect of rendering the 'it's all free speech' argument dead in the water.

All this means is that it is not just perfectly fair to ask if Ann Coulter's statements are appropriate, but also socially responsible to do so.

This brings us to the second myth in Galloway's post, what I call the 'Freedom Zone' myth.

Once we believe that all speech is protected at all times, then we also and unwittingly buy into the idea that speech itself creates a protection around us that cannot be penetrated without violating the constitution.

In other words, if all speech is protected, then no matter where we are speaking, we are protected by a 'Freedom Zone' somehow affixed to us as individuals. In fact, freedom of speech is not an abstract principle, but applies to specific spaces--public and private--in very specific ways.

The recent ruling against the Phelps gang shows how freedom of speech operates differently in private and public spaces. Fred Phelps routinely leads the members of his Westboro Baptist Church to stage loud and offensive protests at funerals held by surviving members of military families. After giving Phelps plenty of space to protest, the court finally ruled that Phelp's protests had violated the privacy of the families. In other words: it's not 'all free speech' because there are situations where freedom of speech is trumped.

In public, the Constitution protects our right to speech up to the point of fighting words. In private, the Constitution protects our right to say whatever we want, but only if it is our private space. I cannot just walk into my neighbors house and start reciting the full script of Star Wars and expect to have my speech 'protected' by the Constitution. Society would be quickly descend into mayhem if that were the case. In private, my speech is protected, but so too is my right not to have my privacy violated by the state or by other individuals. And thank goodness for that.

Fighting words and privacy both trump 'free speech' in certain situations, and for the betterment of American society.

So where does this leave us with Coulter?

Well, the question remains with Ann Coulter as to whether or not she has the right to sit down on a talk show and issue broad defamatory statements that are of a false or hateful nature.

Is TV a private space? Clearly not. We each have a right to turn off Ann Coulter in our private spaces. Imagine if we did not have that right. Imagine if the government required us to watch Ann Coulter every night--wait a second. This brings up another case: media holdings.

Ann Coulter's speech raises the question as to whether the media conglomerates that own cable and broadcast stations have become so large that their broadcast bandwidth actually violates our ability as individuals to choose not to watch Ann Coulter without turning off TV altogether.

So that is the first issue the Coulter speech should raise: media holdings. Have current media ownership laws been relaxed too far, such that Ann Coulter' speech is a media-age symptom of monopolization? I am no expert in anti-trust law, but that is a question worth asking.

The more immediate question, however, seems to be whether or not Coulter's speech meets the incredibly high and restrictive threshold of 'fighting words' doctrine? Are the statements Coulter makes in this situation so 'lewd and obscene...profane...libelous, and...insulting" that the social value off protecting them is vastly outweighed by restricting them?

Maybe. That is a question for legal scholars to ask, and they should not worry about violating the Constitution when they do. And this brings us to Galloway's last point: horror movies.

Galloway suggests that the real damage to society is not Ann Coulter's statements, but the scenes of horrific murder in movies like Saw, the implication being that we are quick to cut off the 'free speech' of Ann Coulter, but giddy about scenes of equal offense at the movies.

Whoops. Another blunder by Galloway.

There is a big difference between the speech of Coulter on TV and horror movies: the movies are clearly defined as entertainment and have a rating system attached to them.

Imagine, for example, if you were watching the Today program when Al Roker--in the middle of reporting a cold front moving across the Midwestern states--were to suddenly pick up a chainsaw and lop off Meredith Vieira's head, or something similar to a scene from Saw. Would that be 'free speech'? No way.

Speech in entertainment that is shown in America, as in most places, is governed by a system of ratings established by consensus, protected by the Constitution and applied for the benefit of society.

This system of ratings allows citizens to make more informed choices about what they choose to watch. If I want to go to the movies with my children, I have a right to protect my child from watching a brutal decapitation or explicit sex scene or from listening to profane language. The film industry helps me maintain that right be requiring films to carry a certain rating system. The Saw movies are rated "R" as a result of scenes depicting violence, terror and drug use, as well as for the type of language--speech--it contains. A director can have an actor say whatever they want in the Saw movies, but if they want their movies to be seen, they need to accept the industry ratings--which are not in any way against the Constitution.

This raises a key question about whether Ann Coulter and the shows she appears on are news or entertainment. When Coulter speaks at a political rally or a private event, she can say anything she wants. But when she speaks on TV, is it possible that she violates certain assumptions held by the viewers of these shows? Is it possible that when she makes false and offensive statements they violate a trust between the consumer and the broadcast industry?

It is very likely that this is the case, although it is hard to prove. Coulter is presented as a political analyst, but clearly in the contexts in which she appears on TV she functions as an entertainer. And if she is an entertainer, then we have a right as citizens to demand a certain warning so we can make more informed choices.

Personally, I could care less if Ann Coulter is on TV. My concern, however, is that the broadcast industry has been consolidated into so few hands that it violates my constitutional right to choose something else. And because these broadcast monopolies have so much power, they operate without any care as to the concerns of their viewers. What we appear to need in this country, as a result of inflammatory and offensive political entertainers like Ann Coulter, is a system of ratings for the shows that she is on--a Constitutionally sound system such as the one used voluntarily by the Motion Picture Association and by HBO, but which is studiously avoided by channels hiding behind the vague term 'news.' If such a rating system were to be devised, it could be based on the past statements of guests, such that having Ann Coulter on your show would earn you an 'R' rating. Imagine that.

'Free speech' is a big category, but it is not so large as to hold everything. To say that all speech is 'free speech' does not actually protect the constitution.

All it does is cut off debate.