The Application of Free Speech in America

“I disapprove of what you say, but I will defend to the death your right to say it”.[1]  That is the common phrase that defenders of free speech often tell their clients who have been apprehended by the Court for violating the legislation. Thus, this takes us to understanding what exactly is free speech, what it entails, what are its limits, and who does it protect? Freedom of speech is a legislation that does not only cover the spoken word but a wide range of expressions such as photography, films, paintings, websites, and others. It is of particular importance to the democracy of every country globally. Freedom of speech is often protected and highlighted in Article 19 of the United Nation’s Universal Declaration of Human Rights and the First Amendment of the United States Constitution with the two bodies recognizing the need of the society to have independence when it comes to expressing themselves.  Nonetheless, in this paper, only the application of the legislation will be discussed under First Amendment, which points out that, “Congress shall make no law …abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.[2]  In this essay, discussions will be made on the reasons why there is no right to free speech in America with also reasonable objectifications to the case.

The coddling of the youth has managed to limit the free speech in people involved with them especially in many US college campuses whereby the right to free speech is limited with strict rules have been enacted to what the professors and students can and cannot say. According to Lukianoff and Haidt, ”…everyone must think twice before speaking up… Or they will face charges against their expressions, especially if they make others feel uncomfortable”.[3] The rules in campuses were put in place in the 1980s after the crime rate such as bullying and hate was at its peak. In the initial stages of the regulation, the only rules were ”…that speech must be ‘objectively offensive’ before it could be… well thought-out to be a harassment of any nature”; [4]however, this rule in due course developed to being any speech, which is considered as ”emotional reasoning is now accepted as evidence” and ”unwelcome” by the victim. Limiting the rights of speech in colleges through coddling them could weaken them to a certain point where they will not be able to cope with any verbal discussion, which may contain the ‘trigger words’ that they previously limited to by the system. Lukianoff and Haidt point out that ”attempts to shield students from words, ideas, and people that might cause them emotional discomfort are bad for the students… the workplace and for American democracy.”[5] Hence, institutions should abandon the restrictive speech rules and create a better balance, particularly between freedom of speech and student’s comfort levels.

Freedom of expression also does not protect the rights of every citizen of America concerning pornography and censorship. The regulation does not protect the rights of the opponents of obscene materials. They include the feminists and religious conservatives who have voiced their opinion regarding the negative impacts that pornography has on their principles and also on the people that they are supposed to protect.[6]

Feminists believe that the pornography encourages violence against women, silencing women by making them inferior; hence, gender inequality while the religious conservatives assert that it harms the society by destroying their faith and also places their morality as human beings at stake. The assembly and the rights to free speech do not consider the beliefs and opinions of everyone as it is supposed to regarding the rule on the equal rights protection of every citizen. For instance, over the years, the Supreme Court has never interpreted the rights to free speech to include obscenity, which they consider to fall out of the First Amendment. For instance, in the United States vs. Ulysses

case in 1933 in the District Court of Southern New York, Judge John M. Woolsey who was presiding over the case to establish whether or not James Joyce’s book, Ulysses, was obscene and should not be allowed to be imported into the US territory.[7]

The US had vowed to seize, forfeit, confiscate, and destroy the copies of the book based on the morality of the citizens being at stake. However, Woolsey ruled in favor of the author of Ulysses holding that the intent of the book was not written to exploit obscenity or pornography, thus determining that it is not pornographic in spite the government’s presentation of the obscene evidence. Also, the Supreme Court made a ruling in 1997 on the governments Communications Decency Act of 1996. It ruled that Congress had overstepped its powers by criminalizing the transmission of indecent and obscene acts that used the prohibited message of under 18 citizens.[8]

Free speech does not also protect people from the rights of people from hate speech that do not cross the targeted line of harassment or threat; thereby its regulations are limited. Under the First Amendment of the United States Constitution, rights of the citizens are supposed to be protected from speech, which degrades on the foundation of gender, race, culture, disability, age, religion, and other grounds is hateful; however, the right is limited to only some cases.[9]

That is because there many acts, which are harmful and society have other measures of controlling the less coercive ones; hence, criminal law should only be employed when the harm is serious. For instance, the Canadian Free Speech regulation, the court has concluded that the judges will not preside on cases, which are weak based on the harms in question with a speculative or remote causal link. However, in the laws such as the hate incitement regulation aimed at speech, which can lead to unlawful acts, then the judges will preside of the case since it is stronger.[10]

Nonetheless, in spite of freedom of speech not covering some rights, some are because of the interest of the ordinary citizen and the judicial system. In hate speech, there is a right to free speech, especially the ones with severe impacts on the regulation. For instance, according to the Canadian courts, they deal with many philosophical issues that concern the criminal provision of expression. And with the limited number of judges, only serious claims that break the law should be considered by the judges with the less serious ones being handled by the other systems in created in the society.[11]

Also, in spite of Lukianoff and Haidt asserting in their article that there is no right to free speech in the college campuses in America with the institution applying restrictive rules, that is not true since every learner and the professors are offered the right to speak, but only limited when that expression harms others.[12]

Freedom of speech is supposed to offer people the right to express one’s point of views without causing harm to others.[13]

And with other student’s causing emotional pain to others in the colleges, they are indeed breaking the law and rights of the other student.  If they express themselves peaceful, then their right to free speech is respected. In regards to the opponents of pornography, they have the right to speak against obscenity only if the creators of the materials targeted them with their work to interfere with their morals and principles. That can be attested based on the holding of Judge Woolsey in United States vs. Ulysses, whereby he ruled that the author wrote the book without the intentions of influencing people.[14]

Conclusion

Freedom of speech is a fundamental right that applies to every American citizen. It guides people on their expression, thereby their expressions being protected from any censorship, legal penalty, and restraint. However, the right to freedom of speech seems not to apply in many areas. For instance, in the learning institution in the United States whereby majority of college campuses have established restrictive rules, which limits the freedom of the professors and students in expressing themselves as they wish. The strict codes have been placed to punish those who break the rules by saying some words, which may be harmful to others, particularly the ones that will create emotional pain.  The coddling of the students may, in the long run, affect their behavior in after-campus life whereby they may be easily traumatized with the trigger words that they were not used to in the college. The right to freedom of speech is also limited to the opponents of the pornography and obscene materials. The free speech is supposed to protect people from the expressions of others that are harmful.

Nonetheless, the Supreme Court over the years has made holdings that favor those people who promote pornography and obscenity in the society, for instance, in the case Ulysses. The rulings interfere with the principles of some groups in the community such as the feminists and the religious conservative groups. Feminists point out that the obscene materials are used in an attempt to silence women based on gender equality issues and also increase the domestic violence in homes while the religious conservatives believe that the pornographies degrade the morality of the believers. Also in hate speech, the right to free speech is limited with court judges only presiding on cases that have a severe impact on the regulation. Nevertheless, despite the arguments, free speech can only be applied based on some specific boundaries. For instance, in the pornography issue, the expression can only be considered harmful if the creator or author intentionally created the work to influence their opponents. Also, in hate speech, there are many cases that the judges cannot handle since they are also human, thus the consideration of only serious claims being considerable. Lastly, in the college campuses in America, intimidating is against the regulation since it breaks the codes of speech; hence, there is no justification for a crime, but punishment.

Bibliography

Gruen, Lori. ‘Pornography and Censorship’, in R.G. Frey and Christopher Heath Wellman (eds.). A Companion to Applied Ethics. Oxford: Blackwell, 2005, 154-166.

Lukianoff, Greg, and Jonathan Haidt. ‘The Coddling of the American Mind’, The Atlantic, September 2015, https://www.theatlantic.com/magazine/archive/2015/09/the-coddlingof-the-american-mind/399356/

McGowan, Mary Kate. ‘The Ethics of Free Speech’, in John Skorupski (ed.). The Routledge Companion to Ethics. London: Routledge, 2010, 769-780.

Sumner, L.W. ‘Hate Crimes, Literature, and Speech’, in R.G. Frey and Christopher Heath Wellman (eds.). A Companion to Applied Ethics. Oxford: Blackwell, 2005. [142-153]

Warburton, Nigel, Free Speech: A Very Short Introduction, Oxford: Oxford University Press, 2009.

[1] Warburton, Nigel, Free Speech: A Very Short Introduction, (Oxford: Oxford University Press, 2009) 1

[2]  Nigel, Free Speech, 1

[3] Lukianoff and Jonathan, The Coddling, https://www.theatlantic.com/magazine/archive/2015/09/the-coddlingof-the-american-mind/399356/

[4] Lukianoff and Jonathan, The Coddling

[5] Lukianoff and Jonathan, The Coddling

[6] Lori, Gruen. ‘Pornography and Censorship’, in R.G. Frey and Christopher Heath Wellman (eds.). A Companion to Applied Ethics, (Oxford: Blackwell, 2005) 154.

[7] Gruen. Pornography and Censorship,155

[8] Gruen. Pornography and Censorship,157

[9] Mary Kate, McGowan, ‘The Ethics of Free Speech’, in John Skorupski (ed.). The Routledge Companion to Ethics, (London: Routledge, 2010) 771.

[10] L.W, Sumner ‘Hate Crimes, Literature, and Speech’, in R.G. Frey and Christopher Heath Wellman (eds.). A Companion to Applied Ethics,  (Oxford: Blackwell, 2005) 147

[11] Sumner, Hate Crimes, 148

[12] Lukianoff and Jonathan, The Coddling

[13] Nigel, Free Speech, 1

[14] Gruen. Pornography and Censorship,155