You Don’t Understand Free Speech

I know my title is provocative. It is intentional.

The law is one of my interests. At the same time, I’m not a lawyer. I’m merely better informed than the average American. Let me be clear that I’m going to talk about the right of free speech embodied in the Bill of Rights of the US Constitution. I cannot talk about other countries. Maybe in your country, free speech operates differently than in the US. I don’t know whether those differences are good or bad. One thing for sure, I keep seeing people mischaracterizing how free speech exist as a law, in the US.

Let me first point out that I am specifically not talking about free speech as a value. There’s a difference between free speech as law, and free speech as value. By law, the US government would be acting illegally if it directed an internet platform to verify all the posts for factual accuracy and give a score to each post. However, the free speech values of the platform can be such that the platform finds those verifications desirable. The platform here would be essentially saying “yes, you can talk, but we’ll double-check you.” That’s a value of the platform, but not the law of the land.

I’m only talking about free speech as law here, not as value.

I also need to distinguish two types of assertions. One is the assertion of what, based on available evidence, the law currently is. This is the type of assertion I’m going to make here. Another type of assertion is the one which expresses the wishes of the author regarding what free speech should be. I am not expressing this type of assertion. Unfortunately, some people do not make this clear. They will talk about their own wishes as if these wishes were the law of the land. This is misleading.

Some people start with the assertion that:

Free speech has its exceptions!

Sure, it does. I can even list you some exceptions. If you commit fraud through the use of speech, your speech is not protected. Donald Trump is discovering this as we very speak. You can bleat “opinion” as long as you want. Fraud is fraud. If your valuation is so off what appraisers are appraising your property for, you’re no longer talking about differences of opinion.

However, in my view, this looks like an exception, but is not really an exception. My reasoning is that yes, speech is involved, but there is also a crime being committed. This crime is the fraud that the criminal is committing with the speech. If this criminal were to say the exact same words, but outside the context of fraud, then there would be nothing to charge them with. We’ll come back to this later.

A better example is the “imminent lawless action” exception. This is when someone is instructing followers to do act now to do something illegal. Note how it is about instructing now to do something illegal. This exception cannot be used to prosecute someone who advocates in the abstract hostility against another group. This is why the Ku Klux Klan can advocate their vile views. This is why bigots can go on social media, and spew their bile against the people they do not like. I don’t like it, but this is the law of the land as it currently exists.

There are more exceptions, but the thing to keep in mind is that these exceptions are very narrowly tailored. These exceptions do not validate the following assertion:

Free speech has its exceptions! Therefore, hate speech is not allowed.

Sorry to break it to you, hate speech is allowed. Hate crimes aren’t, but a hate crime would be a crime even without the hate.

Let’s take the example of Donald Trump. He allegedly committed fraud. The simplest example of this is that he reported his penthouse in NY was about three times the size it really is. If Trump did this, this is fraud, because his report regarding the size of his penthouse was used in financial disclosures that advantaged him. However, the words he used cannot be criminal in and of themselves:

  • They could be used as part of a joke.
  • They could be used as part of a drama about Donald Trump.
  • They could be used in all kinds of contexts where fraud does not take place.

Now, I’ve seen a few people post in the fediverse that Trump’s gag order is fine, because free speech has its exceptions. I agree that the gag order is fine, though I recognize that if it is appealed, the court might disagree with me. Unfortunately, the jurisprudence on gag orders is underdeveloped. I do not think, however, that it is fine because free speech has its exceptions. The gag order is fine, because it is narrowly tailored, but first and foremost, because Trump is a criminal defendant.

We have, in the US, a right to a trial. However, once the wheels of justice are in motion, it is in the interest of everyone that the trial be conducted impartially. (By everyone, I mean everyone, even the defendant, but I don’t want to get lost in the weeds here.) In order to ensure this, the court can impose some conditions on the defendant. For instance, the defendant can be ordered to stay in a specific geographical region, post bail, or be sent to prison, even if they are not found guilty yet. The same can be true if they utter statements meant to intimidate the jury, or the officers of the court.

If Trump were not a defendant, he would be able to intimate that Judge Engoron’s law clerk is a girlfriend of Chuck Schumer. It is a stupid statement, and one that observable facts do not support, but he’d be allowed to make that statement. This is very much like Trump’s contention that Mark Milley deserves execution. Since Milley is not part of the lawsuit, Trump can claim as much as he wants that Mark Milley should be executed. This is yet another stupid statement. The government can disapprove, but cannot charge Trump for this.

It would be another thing if Trump ordered his subordinates to go apprehend him for execution. Here, we would fall into the imminent lawless action category. Imminent because, well, Trump’s subordinates are about to do the deed. Lawless because people are to be executed only through the application of due process, and not because Trump merely says “off with their head!” So, yes, in this case, this would be an exception to free speech. The government would be justified in charging Trump.

I hope I’ve clarified some aspects of how free speech exists right now in the USA. There may be an argument to be made about how it should be different, but that’s not what I wished to explore here.



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