Ep. 227: Should there be categories of unprotected speech?
Oct 22, 2024
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Join Ronnie London, General Counsel at FIRE, and Bob Corn-Revere, Chief Counsel at FIRE, as they dive into the controversial question of unprotected speech. They discuss categories like obscenity, child pornography, and fighting words, evaluating whether these should remain unprotected. The duo also tackles defamation and its implications in high-profile cases. Their debate offers a nuanced perspective on the balance between free speech rights and societal responsibilities, questioning the very nature of what constitutes harmful speech.
The podcast argues that the debate around unprotected speech categories raises critical questions about the balance between free expression and societal impact.
Historically established exceptions to free speech, like defamation and obscenity, are increasingly scrutinized for their relevance and implications on overall free expression.
The discussion highlights the complex distinctions between incitement to imminent lawless action and true threats, emphasizing the necessity for clear legal thresholds to protect free speech.
Deep dives
The Fundamental Principles of Free Speech
The importance of protecting free speech lies in the belief that conflicts should be resolved through dialogue rather than violence. This philosophy argues that even unpleasant or offensive speech deserves protection, as it contributes to the marketplace of ideas. However, there is an ongoing debate about how to handle speech that might significantly disturb individuals or society. The podcast highlights the tension between preserving freedom of expression and recognizing when speech could cross the line into unprotected categories.
Categorical Exceptions to Free Speech
The discussion brings into question the validity of current categorical exceptions to free speech, such as defamation, obscenity, and fighting words. One guest expresses discomfort with the existence of these categories, suggesting that they could undermine the fundamental right to free expression. The historical context reveals that categorical exceptions were established to restrict certain types of speech, but their applicability and relevance are increasingly challenged. This debate underscores the complexity in defining unprotected speech while maintaining a robust protection for the First Amendment.
The Evolution of Legal Standards
The podcast emphasizes that the development of speech categories has often led to greater protections for free speech over time. For instance, the Supreme Court’s evolving interpretations have tightened standards regarding what constitutes obscene or defamatory speech and its implications. Historical cases such as New York Times v. Sullivan illustrate how legal definitions have shifted to provide higher burdens for proving defamation against public figures. This evolution reflects a broader trend towards maintaining the presumption of protection for most speech while delineating specific exceptions.
Incitement and True Threats as Distinctions
A significant point raised is the differentiation between incitement to imminent lawless action and true threats, both of which pose unique challenges within free speech. The conversation reveals concerns about the thresholds required for legal action against incitement, highlighting the need for intent and likelihood of causing unlawful action. True threats, on the other hand, require that a reasonable person perceives the statement as a threat, retaining the critical balance between protecting free speech and safeguarding against genuine harm. This analysis encourages listeners to rethink the boundaries of speech that can lead to violence versus those that remain protected.
The Future of Free Speech Protections
The podcast concludes by addressing the perception of absolutism in free speech advocacy and the nuanced understanding that no speech category is without exception. It stresses the mission of organizations advocating for free speech to ensure that expressive rights are adequately protected against undue government restrictions. This dialogue nudges toward an outcomes-based perspective on free speech, aiming for the maximum protection of expression while recognizing the limitations that must be balanced carefully. Ultimately, the conversation encourages continued reflection on the evolving landscape of free speech rights and their implications for society.
The FIRE team debates the proposition: Should there be any categories of unprotected speech? General Counsel Ronnie London and Chief Counsel Bob Corn-Revere go through each category of speech falling outside First Amendment protection to decide whether it should remain unprotected or if it’s time to “remove an arrow from the government’s quiver.”
