Redefining free speech in our hyperlinked world
U.S. Supreme Court justices are not supposed to say anything interesting outside of the court, but in 2010 Justice Stephen Breyer was asked in a rare TV appearance if he thought a Florida pastor had a First Amendment right to burn a Quran.
First, Breyer cited the late Justice Oliver Wendell Holmes old line about not having the right to cry fire in a crowded theater. Then, he asked some interesting questions: What does that proverbial theater look like in our hyperlinked world? And what is our eras equivalent of being trampled to death in that theater? As if remembering himself, he quickly added that the answers to such questions get defined in actual cases before the court, over time (as opposed to on Good Morning America).
At the time, Breyers TV provocation was roundly denounced by all right-minded free speech absolutists (a club I frequent). But I have found myself thinking about his questions in the aftermath of two major events involving the cross-border repercussions of speech: the horrible attack on satirical French magazine Charlie Hebdo, and the hacking of Sony Pictures before the release of the sophomoric comedy The Interview.
The crowded theater is a meme in First Amendment law that is often invoked out of context and has been overtaken by subsequent, more expansive free speech rulings. Another First Amendment meme is the marketplace of ideas: we absolutists like to say that all speech should be permitted so that truths can prevail in that aforementioned ideas market. A third important meme the current constitutional test for whether the state can restrict speech is that of imminent lawless action. In a case involving hateful Ku Klux Klan speech in the 1960s, the court held that the government can only forbid speech that is intended to trigger imminent lawless action, and is likely to do so.
All of this would be easier to judge if speech could be contained within tidy territorial boundaries. But the Paris tragedy and Sony hack beg not only the Breyer question of what constitutes the crowded theater today but also a redefinition of the marketplace of ideas and of imminent lawless action. Should we rethink whats acceptable speech because more lawless action can be more imminent in a more interconnected world?
Whats different today is the immediacy of all speech, no matter where it takes place. Several legal scholars argue that perhaps we should rethink the permissibility of releasing offensive material that is bound to trigger a violent reaction. Its getting harder to draw distinctions between uploading something onto YouTube in the privacy of your home and broadcasting that same content halfway around the world. Its a very large crowded theater we operate in.
Back in my absolutist First Amendment club, this is an unsettling line of reasoning. As Americans we are understandably wary of watering down our liberties (including the liberty to offend one another) to conform to some international norm. If we are all going to coexist in one global market or theater that transcends borders, our traditional attitude has been that others will just have to develop thicker skins and relish the same liberties we enjoy. Deal with it, in other words.