Defending Free Speech When It Hurts

The Supreme Court heard oral arguments Wednesday morning concerning free speech around and near abortion clinics. At issue is whether a 35-foot “buffer zone” within which abortion objectors are not allowed is constitutional. The named plaintiff, Eleanor McCullen, offers “calm, peaceful, and non-threatening” speech to try to talk women out of having abortions. She claims the zone violates her First Amendment rights.

Abortion continues to be a contentious issue in this country, and that is what makes this case newsworthy. It shouldn’t. That is, it shouldn’t matter whether the speech is about abortion or favorite recipes. The First Amendment is foundational to our freedom in general. Judging free speech cases on the basis of content only serves to weaken a principle of governance that protects us all.

This would not even be an issue were it not for a couple of areas in which it is legitimate for the state to limit “speech.” It would be more correct to say that some acts that involve speech violate other individual’s rights. The most cited example is shouting “Fire!” in a crowded theater. To be precise, this phrase, coined by Oliver Wendell Holmes, Jr. in the Schenck v. United States case concerned falsely shouting “Fire!” The difference is critical.

We should hope that someone seeing a fire would alert others. The avoidable mayhem of shouting fire comes only when someone does it to cause panic. A real fire may cause a panic as well, but the person shouting cannot be said to have harmed anyone. In the end, he/she may well have saved their lives.


In 1969, this ruling was overturned in favor of a more restricted understanding of the legitimacy of limiting speech in the Brandenburg v. Ohio case. Where Holmes had reasoned that distributing leaflets protesting the draft during WWI could be restricted by the state because it caused a “clear and present danger,” Brandenburg amended this view to include only speech that threatened “imminent lawless action.” (And Holmes later came to change his views, thinking his former opinion too restrictive of speech.)

The Brandenburg decision helped draw the line between voicing an unwelcome opinion and advocating or causing tangible harm. Most of us have no trouble with this idea. We know that freedom of speech does not include the freedom to use a bullhorn at 2:00AM in an apartment complex. Likewise, shouting that you are going to kill someone while arching over them menacingly is not covered.

For these restrictions to work while we still maintain freedom of speech is simple–in theory. The state has a legitimate interest in controlling speech in a very tightly circumscribed set of circumstances–protecting people from immediate harm–but those circumstances must be content-neutral. It should not matter what the speaker is talking about.

In practice the distinction is sometimes hard to make. This particular case is interesting because of the blurred line between a protest (which has to be managed for public safety) and regular old plain vanilla speech (one person talking to another non-threateningly). Underneath, though, lies a more fundamental issue. Are we each to be protected from hearing things we don’t want to hear?

The hullabaloo over Fit Mom, which I wrote about recently, is one example of a disturbing trend: if it upsets me, I should try to silence the speaker. Fortunately, the government did not try to silence Fit Mom, other Facebook users did. In the case of so-called “hate speech,” though, that is precisely what happens. The government has taken it upon itself to designate some types of speech as illegal even when no harm is imminent. The same holds for university “free speech” zones. Until we had them it never occurred to me that any place on campus was not a free speech zone.* The implication is dark and sinister–we need permission from government to speak our minds.

How can anyone justify wanting to silence others with whom they disagree? For the same reason that people spend when they should save, eat ice cream when they should get a salad, and sit on the couch when they should be exercising. Our present-moment impulses routinely overpower our long-term intentions. If people constantly shared with me their negative views about bald men–that they steal souls, have bad tempers, and are related to Lucifer–I would probably be annoyed,** but I don’t think it would occur to me to advocate making it illegal to say those things.

One reason is that the whole notion is just silly. People that easily offended need to grow up. Not everyone is going to like you. Some will have stupid excuses for not liking your near-perfect, lovable self. Get over it. The best reason, though, is that I know who is next on the list when baldies lose power. One fine day I know I would find myself arrested for poking fun at someone’s dreadlocks.***

When government acts within its legitimate boundaries, it protects each of us from tangible harm by others. It cannot and should not protect us from getting our feelings hurt when others express their opinions, no matter how offensive. Those who support a woman’s right to choose will often be tempted to silence those who wish to deny it, and vice versa. Both sides should remember that the same mechanism works both ways.

Freedom has a price, but it is a bargain. Each of us must grow up. No government can simultaneously make us free from insult and free from tyranny. Liberty requires a keen mind and a stout heart. I wonder how many of us are still willing to pay the price.


*Note that this only applies to public universities, which are quasi-governmental institutions. A private university has every right to ask someone to leave the premises for any reason whatsoever. That is not a violation of free speech, but certainly violates the sensibilities of anyone who still believes that higher education should teach people to understand all sides of an issue, not protect them from hearing other points of view.

**Or not. I find it easier by the day to ignore idiots.

***For more information on the Anti-Dreadlocks League, please contact me directly.

About Terry Noel

I am an Associate Professor of Management and Quantitative Methods at Illinois State University. My specialty is entrepreneurship.
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