Does the First Amendment Protect ‘Effective’ Speech?

 

There is an article in the Free Press by Ilya Shapiro titled “Where Free Speech Ends and Lawbreaking Begins.” Shapiro does a good job of discussing what is generally known — that speech rights don’t include assault and intimidation. And certainly we are seeing a lot of this thuggery on campuses and elsewhere.

But, the question occurred to me: why, if people generally understand this distinction between freedom of speech and assault and intimidation, do we have these incidents by people who are not otherwise criminal so easily crossing the line? It occurs to me that there are a couple of explanations: (1) the obvious “mob” mentality that can happen when your speech activity is done in a group, but also (2) the incremental pressure to be more “effective” in achieving the goals of your speech. And it is this latter one that I want to examine.

Nothing in the First Amendment guarantees that your ideas will prevail. Yes, your expression is supposed to be protected against government retaliation and censorship. But protection against retaliation and censorship does not mean that anyone has to listen to you. But somehow this seems to be lost on a lot of people these days. It’s as if speech is not enough. Therefore, one has to up the ante and act in ways that make speech more “effective” in getting your way. As systems get more used to “squeaky” wheels, the wheels need to become “squeakier” to get attention.

Life is like a busy bar. If you have an announcement for all of the patrons you need to get them to stop talking and pay attention to you. If you are not getting enough people to pay attention you get louder, call on patrons to shush people around them, rap on the bar, etc. But the First Amendment doesn’t make the patrons stop talking and listen, it only means the barkeep can’t throw you out for trying to make an announcement without breaking things and pushing patrons.

We read reports of teachers offering extra credit for, or even requiring, political activism by students (e.g., here, here, and here). Why isn’t class discussion good enough? Because the teachers want the speech to be “effective.” And to be effective, you need numbers. If you can get numbers, it will get attention. But, in context, numbers may not be enough to be effective. Put 20 protesters in a conference room: effective. Put 20 protesters in a stadium: not so much. So the desire for effectiveness requires an inverse relationship between the numbers and conduct: the fewer people you have for a given venue, the more their conduct must be annoying and disruptive to be “effective.”

The concept of peaceful protest was that people are essentially good, generally moral, and do not want bad things happening to people for no good reason. So when people are engaging in an activity quietly that hurts no one but highlights an unjust rule or practice, retaliating government is put in a bad light and, in a democracy, people demand changes to those rules or practices. Media amplified the voices of peaceful protest and government responded to the mood of the electorate. When the media stops amplifying peaceful protest (or votes no longer count), protests cease to be peaceful because it is not “effective.”

When did we decide the First Amendment protected “effective” speech? Was this one of those “penumbras” and “emanations?” The beauty of the Progressive lexicon and “constitutional” practice is how “flexible” it is. The best way to cow a people is to subject them to “effective” speech and criminalize the reaction to it. The “brown shirt” era has returned.

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  1. Hartmann von Aue Member
    Hartmann von Aue
    @HartmannvonAue

    You are correct, that a right to speak does not include a guarantee that you will be heard, much less taken seriously. Shapiro is also right and it is especially laudable that he concedes at points that there are real-world exercises of free speech we might want to ban, but should not, while there are others that are clearly eligible not just for legitimate suppression in the name of the common good, but are legally actionable by their targets. His arguments are all well-considered and concisely presented. Thanks for recommending it.

    • #1
  2. MarciN Member
    MarciN
    @MarciN

    Admittedly wandering far afield of the original post:

    Ben Shapiro is my newest hero. I didn’t know of him until a month ago, but in mid-October I happened to listen to a clip of one of his speeches on YouTube, and YouTube responded to my interest by sending me new Ben Shapiro clips to watch every day. :)

    At this moment, I think he is the smartest person on the planet. He sees the same problem I do on college campuses: complete ignorance. In one clip I watched just yesterday, he asks a protesting college student, “How many Jews are there in Gaza?” The student fumbles for an answer. Ben then says, “None. Not one. Who are the ‘oppressors’? They are Hamas. Not Jews.”

    His statement was powerful because it was succinct. When we are dealing with fuzzy thinking, we have to be incisive. Ben Shapiro understands the psychological dynamics of the crowds he is addressing.

    I have believed for the last month that the kids who are protesting do not know the legal status of the Gaza strip, that the Gazans are completely independent of Israel and have been since 2005.

    These kids also do not have an inkling about how self-government works. If they understood it, they would realize that the Gazans are running their own ship and are responsible for their own well-being. It’s a blessing to have the freedom to do the work one needs to do to live and live well. The Gazans have everything I have.

     

    • #2
  3. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Rodin: Nothing in the First Amendment guarantees that your ideas will prevail. Yes, your expression is supposed to be protected against government retaliation and censorship. But protection against retaliation and censorship does not mean that anyone has to listen to you. But somehow this seems to be lost on a lot of people these days. It’s as if speech is not enough.

    Excellent Point. These people do think they must be listened to and obeyed. It doesn’t say that in the Constitution.

    • #3
  4. MarciN Member
    MarciN
    @MarciN

    Just as a postscript to comment 2: Why did Illya Shapiro’s piece send me to Ben Shapiro? Because at this moment, I think Ben Shapiro is doing the only thing we can do with these protests.

    We have to have goals. The goal for America needs to be the preservation of the freedom to speak against the government.

    I am not sure we can usefully distinguish speech meant to incite action versus speech meant to express an opinion.

    Uncle Tom’s Cabin was very controversial when it was published. All of these questions being asked today surrounded it. It was definitely a political novel, designed to get people to act. And it succeeded.

    Illya Shapiro has raised a tough question to answer.

    • #4
  5. Mad Gerald Coolidge
    Mad Gerald
    @Jose

    To a certain type of person, if you are virtuous and your opponents are evil, anything you do is justified.

    • #5
  6. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Rodin: Nothing in the First Amendment guarantees that your ideas will prevail. Yes, your expression is supposed to be protected against government retaliation and censorship. But protection against retaliation and censorship does not mean that anyone has to listen to you.

    There are philosophical and cultural foundations upon which that concept is based, foundations that have been undermined for many years, and that continue to be undermined. 

    • #6
  7. Red Herring Coolidge
    Red Herring
    @EHerring

    MarciN (View Comment):

    Admittedly wandering far afield of the original post:

    Ben Shapiro is my newest hero. I didn’t know of him until a month ago, but in mid-October I happened to listen to a clip of one of his speeches on YouTube, and YouTube responded to my interest by sending me new Ben Shapiro clips to watch every day. :)

    At this moment, I think he is the smartest person on the planet. He sees the same problem I do on college campuses: complete ignorance. In one clip I watched just yesterday, he asks a protesting college student, “How many Jews are there in Gaza?” The student fumbles for an answer. Ben then says, “None. Not one. Who are the ‘oppressors’? They are Hamas. Not Jews.”

    His statement was powerful because it was succinct. When we are dealing with fuzzy thinking, we have to be incisive. Ben Shapiro understands the psychological dynamics of the crowds he is addressing.

    I have believed for the last month that the kids who are protesting do not know the legal status of the Gaza strip, that the Gazans are completely independent of Israel and have been since 2005.

    These kids also do not have an inkling about how self-government works. If they understood it, they would realize that the Gazans are running their own ship and are responsible for their own well-being. It’s a blessing to have the freedom to do the work one needs to do to live and live well. The Gazans have everything I have.

     

    Heck, even some on ricochet refuse to admit re “occupation” of Gaza  responses.

    • #7
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