Cyber-Absolutism?
The Navy Yard shooting, a horrendous tragedy, occurred on September 16th, 2013. The “delusional” Aaron Alexis believed he was subjected to “low-frequency electromagnetic waves” from the government. And, in retribution, decided to bring a sawed off shotgun to the Washington Navy Yard, patrol the building’s halls for victims, and indiscriminately murder 12 innocent bystanders before being gunned down by the authorities (Botelho & Sterling). The psychotic murders raise alarms over gun regulation and safety. In addition, it also raises one more concern, albeit less obvious—the issue of free speech on the Internet. Professor David W. Guth, a journalism professor at the University of Kansas, was suspended for his colorful tweet in response to the shooting. Timothy C. Caboni, the university’s vice chancellor for public affairs, expresses that the institution expects “all [faculty] to engage in civil discourse” and refrain from “inflammatory and offensive comments” (University of Kansas). To some people, this incident may not come off as a surprise considering that employees have been fired for disagreeable comments on Facebook before (Trivedi). Nevertheless, the flagrant backlash on his tweet suggests an important question: Should this type of speech, one that would spur heated arguments—or rather, all speech—on the Internet be regulated?
Cass Sunstein emphatically answers, “Yes,” in his book, Republic.com 2.0. To him, it is impossible to even regard free speech as absolute, in the sense that government may not regulate speech (Republic 2.0 11). Rather, to Sunstein, the question is not whether, but how will the Internet be regulated? Stanley Fish, another professor of law, expresses a rather similar sentiment, although more impassioned. To Fish, absolutism has facilitated the dissemination of repugnant and grotesque filth among the Internet, such as “crush videos”—videos depicting women crushing kittens in pursuit of sexual fulfillment (Fish). However, before we can evaluate their arguments, we must first understand absolutism and its application to the First Amendment.
Cass Sunstein outlines the main arguments of absolutism in his book, Democracy and the Problem of Free Speech. Here, I will summarize the five key arguments of absolutism: first, the government, itself, is a threat to the principles of free speech; second, the First Amendment does not differentiate between different types of speech—political, commercial, and even sexual speech all constitute protection; third, all speech and not just political speech is expressive; fourth, any restrictions placed on speech invites further inevitable restrictions; and fifth, judges should not carry out balancing tests, in which a speech’s potential harm is compared to its expressive value (Democracy 5-6). It is important to understand absolutism’s core principles because both absolutism and “reasonable regulation” (a principle that, just as its name implies, concerns governmental balancing of the potential harm versus the benefits of a particular speech) have largely impacted the Court’s application of the first amendment for almost a century.
Free speech, as constituted by today’s standards, did not have that much leeway in the past. At the advent of the 20th century, the “bad tendency” dominated the theories of free speech. As Stanley Fish notes it, speech that “had a tendency to undermine authority or corrupt morals,” even without evidence of “sedition or immorality,” could have been censored by the government (Fish). Today, you and I are able to produce and distribute, over the Internet, manifestos detailing how to overthrow the government! How did such a momentous shift in First Amendment theory occur within a century? New York Times v. Sullivan. In 1964, the New York Timeshad published an ad with “factual” exaggerations insinuating that Sullivan, the chief commissioner, had ulterior motives in his arrest of Martin Luther King, Jr. As a result, the newspaper company faced libel litigation; however, the Supreme Court ruled that “all statements, even false ones” regarding public officials, except in the case that they “are made with actual malice,” are protected under the First Amendment (New York Times v. Sullivan). In one court ruling, the Supreme Court opened up political speech to be “uninhibited, robust, and wide-open.” The Court, in essence, created absolute political speech—all debates on politics was deemed to be expressive and unrestricted. You could fabricate lies on a politician all you want (except in the intent of malice) and your speech will still be protected. For this reason, New York Times v. Sullivan can be thought of as the first born child of absolutism and the First Amendment.
Despite such a momentous expansion, absolutism’s impact on free speech has yet another important conception. In Hustler Magazine v. Falwell, the principle question was whether a fictional and defamatory “parody” aimed at Falwell, an evangelical Southern Baptist pastor, deserved constitutional protection (Hustler v. Falwell). The answer? Yes. The Court ruled that the “free market of ideas” triumphs over protecting a public figure’s image. Thus, the Supreme Court once again expands free speech. It allows the uninhibited forum of political speech to venture into the public realm. It embraces Justice Holmes’ marketplace of ideas. It reasons that through discourse and deliberation will such facetious exaggerations come to truth.
Unfortunately, the advances in free speech, as made by absolutism and the courts, do not always produce a social good. One prime example involves Snyder v. Phelps. The case entails the Westboro Baptist Church and the family of deceased Marine Lance Cpl. Matthew Snyder. The WBC faced litigation over their repugnant and homophobic protests, of which occurred near the funeral of the deceased marine. The Supreme Court remained firm in its previous interpretations of free speech and ruled that because the WBC discussed public matters at a public place, did not disrupt the funeral, and coordinated with authorities, their speech remains legitimate (Snyder v. Phelps). Through Snyder v. Phelps, it can be discerned that free speech may also produce undesirable side-effects on society; consequently, for this very reason, some people have returned to the concept of “reasonable regulation,” similar to Fish and Sunstein. However, before discussing such matters, I will return to the overlying topic of Professor David Guth’s tweet.
Professor Guth’s tweet should not have resulted in a suspension—history elucidates why. Analogous to New York Times v. Sullivan and Hustler Magazine v. Falwell, his tweet revolves around the public stratosphere and should be “uninhibited, robust, and wide-open.” Analogous to Westboro Baptist Church, his tweet deserves constitutional protection despite being ill-mannered and crass. If historical precedence isn’t enough to convince you, perhaps legislation will. Public employees are granted protection of freedom of speech in that their employers may not fire them solely based on (first) amendment-applicable opinions (Kirkland). Professor Guth, being employed by a public institution, constitutes being a public employee. Therefore, his suspension should be viewed as illegitimate. But then, why would people like Ann Brill, the dean of the school of journalism, dissent to such an interpretation? The answer lies within the technological frontier—the Internet.
The Internet, with its vast global reach, facilitates the expression of ideas and beliefs in a matter of seconds. However, this transcended communication also raises an important question in itself. Does speech on the Internet deserve the same constitutional protection as regular speech? Should it rather be regulated? Proponents of reasonable regulation, such as Ann Brill, do not see speech as absolute. As demonstrated by her opinion on Guth’s tweet, she believes public speech should be weighed upon its inherent contribution to Holmes’ free market of ideas versus its effect on societal harmony. Thus, proponents of reasonable regulation would say no; the potential adverse effects on society outweigh the speech’s benefits.
Having reviewed Guth’s case and the advent of free speech, we are now aptly prepared to confront Fish’s and Sunstein’s concerns. Stanley Fish views absolutism and the advent of the Internet as having opened up the floodgates of perturbing or disgusting content that has no value, no benefit, to society, such as the aforementioned crush videos (Fish). Whereas Fish is primarily concerned with content upon the Internet, Sunstein has a much broader outlook. Sunstein asserts that absolutism is implausible because regulation has already happened; government is free to regulate blackmail, false advertising, child pornography, and a greater multitude of things (Republic 2.0 176).
To address the topic of regulation, Sunstein’s assertions are undoubtedly true. The government serves the general public and, in order to do so, must be able to regulate—speech is no exception. However, perhaps the focus should be upon the speech that isn’t regulated. Fish is primarily concerned with speech detrimental to society; however, I believe such speech should be left alone. Such speech should be placed through Justice Holmes’ “free market,” and if the market—society—deems such speech to beneficial, then it shall be heard. If not, then such speech will be drowned out by a torrent of expressive ideas.
To address the concern of absolutism as it applies to the Internet, political and public speech held online should be regarded as their normal counterparts, deserving of constitutional protection. Why? The Court explicitly states that in the exception of malice does the First Amendment not apply. For political and public speech, does the Internet change this malice in any sort of way? Does it affect how we perceive malice? Or, perhaps, is there an abundance of malice on the Internet? No. As long as there is a way to detect malice in online speech, political and public speech should remain “uninhibited, robust, and wide-open,” even on the Internet. Laurence Tribe, professor of constitutional law at Harvard, expresses a similar sentiment, in the sense that basic constitutional principles—our First Amendment right to deliberation on the political and public domain—are firmly rooted in place (Tribe). However, that being said, there are those who believe our constitutional principles should expand forth even further. Solveig Sinleton, a lawyer whose forte lies in telecommunications, outlines three reasons to further expand First Amendment absolutism (Singleton).
Perhaps Singleton’s interpretation of First Amendment absolutism is ahead of our time. Perhaps in the next century, free speech will further expand towards new horizons and cover new constitutional principles, just as it did in the 20th century. However, it can be assured that absolutism has played a rather large role in the history of free speech. It allows someone today to speak out on politics or public policy uninhibitedly, robustly, and openly. It allows Professor David Guth to speak his mind, emphatically, on public issues through the Internet—thereby, contributing (or not) to the free market of ideas For better or for worse, absolutism has made its mark, and perhaps will continue to do so.
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