The First Amendment is, arguably, what makes America America. Other countries have democratic governments of various kinds and share a lot of the freedoms we have – you can vote in many countries, you can bear arms – in Switzerland you're required to own firearms – other countries have safeguards against blurring church and state that make ours look weak – France, for example, is aggressively secular. But nowhere that I know of goes to the length that our Constitution goes to to protect free speech from government interference. If this is the land of the free, nowhere are we more free than we are to speak our mind.
Common sense and common practice has long recognized that even this right has its limits. In 1919 Justice Oliver Wendell Holmes said in Schenk v. United States "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic," invoking the notion of "clear and present danger" as a legitimate reason to curb some kinds of speech. More recently we have seen laws passed against "hate speech" as well.
And that's where it gets tricky. To (falsely) shout fire in a crowded theater clearly creates a danger – people may panic, trample others, etc. Hate speech is different than hate actions such as lynching or other physical attacks. For those brought up on "sticks and stones…" the notion of hurtful speech takes some thinking about, but we've all experienced being hurt emotionally by things others have said, so it's understandable. Still, where do you draw the line and still protect free speech?
When I lived in New York in the 1970's I listened to this crazy radio show in the mornings on my way to work. While other morning radio consisted of music and news, this guy Don Imus was doing all sorts of wacky and entertaining things like calling a McDonald's store, pretending to be the commander of an army base that had just had a fire in its mess hall and ordering 25,000 hamburgers to go, launching into a long string of special orders (17,000 with no onions, 5,000 with mustard, etc.) Arguably Imus created the "shock jock" genre and is the spiritual father of Howard Stern, Opie and Anthony, and the rest. Increasingly over the years Imus has pushed the envelope of what one is allowed to say and do on the radio. He was among the first to give Kinky Friedman, erstwhile candidate for Governor of Texas, a national microphone, proclaiming "They Ain't Making Jews Like Jesus Anymore" the "Imus in the Morning National Anthem." A lot of what he did was funny, some of it silly and a great deal of it offensive to various people and groups.
Now, it's generally agreed, Imus has gone farther than free speech will allow in his comments about the Rutgers women's basketball team. Yet his remarks fall far short of what rap music puts out every day. Snoop Dogg, that icon of rap, says that the reason his racist, misogynistic, and insulting lyrics are OK and Imus' comments aren't is that Imus was talking about nice women and Snoop is talking about ho's, managing to reinsult black women at the same time he claims to be defending them.
But there's something about the First Amendment that should be understood and often isn't. What it says is: "Congress shall make no law…abridging the freedom of speech, or of the press." This means that the Federal Government, and by extension state and local governments, is barred from interfering with free speech – it doesn't say that an employer, particularly in the media, cannot say what is acceptable for its employees to say. In return for making the public airways available to Imus or anyone else, CBS and MSNBC are not legally restricted from saying what they are willing to have broadcast under their banner.
Seen this way, free speech becomes self-regulating. If the public is willing to buy rap music that insults women but unwilling to tolerate Imus insulting women, then, as we've seen, Imus will go and rap music will continue to sell. I, for one think that's a pretty good system.
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