Is the First Amendment (and the rest of the Bill of Rights—and the Constitution, for that matter) inviolate or are there times when abridging speech is necessary? That’s the question confronting the Minneapolis City Council just now as one of its members has filed a complaint against the city’s public access cable television network. The dispute has spilled into the mayor’s office and across the rest of the City Council. Few seem to be aware that the question has already been answered.
According to my associate Craig Cox’s account republished in the Twin Cities Daily Planet, City Council president Barbara Johnson asked Minneapolis Television Network’s (MTN) executive director Pam Colby why community standards haven’t been developed. Colby’s response was that standards would be “pushing up against our need to be a First Amendment and free speech forum.” Colby added that the network acts to mitigate programming some viewers may find offensive by airing controversial programs only once and scheduling potentially offensive programming after 10:00PM. Furthermore, any one who feels they’ve been offended or slighted by programming “is invited to submit a response.”
The policy of inviting the offended to submit a response is adequate enough remedy for the complaint to be dismissed, and I’m confused as to why the city is continuing to be distracted by this issue. As Justice Louis Brandeis argued in Whitney v. California, the danger in speech cannot be considered clear and present if there is time to answer. Brandeis believed that while legislatures had an obligation to restrict truly dangerous expression, they were required to clearly define the nature of that danger; fear of or frustration with unpopular ideas isn’t enough. Brandeis’s position was eventually adopted by the US Supreme Court in Brandenburg v. Ohio.
Here’s the crux of Brandeis’s most eloquent argument:
“To reach sound conclusions on these matters, we must bear in mind why a State is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.
“Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one…
“Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.”
That makes free speech absolute except in cases of a clear and present danger. But apparently at least one Minneapolis councilmember needs a civics lesson. Consider this exchange:
“But Council Member Lisa Goodman wondered whether MTN—and, by extension, the city—also could be held liable in a defamation lawsuit. How does the organization protect itself from that possibility?
“‘We’d help the defamed person defend themselves’ on the air, Colby said.
“‘That’s our method of seeking redress?” asked Goodman, incredulously.
“‘We have to encourage more speech,’ Colby replied. ‘We don’t want to screen everybody coming on the shows.’”
The complaint has already had a chilling effect on speech in the community. Cox quotes a network producer as saying he’d been dropped from one of the public access shows.
0 responses. Comments closed for this article.