NADINE STROSSEN: The classical liberal idea of free expression actually overlaps very
extensively with the rules that the United State Supreme Court has enforced under the
First Amendment and interestingly enough also overlaps with the rules that have been enforced
under International Human Rights law.
So, it really is a universally accepted standard that reduces the power of any external authority,
in particular, government, to deprive individuals of the right to make our own decision about
what we will say, what we will not say, what we will listen to, what we will not listen
to.
Most people falsely assume one of two things, which are opposite from each other and yet
they are equally wrong: On the one hand many people assume that freedom of speech is absolute
that there can be no restrictions or limitations whatsoever.
On the other hand, too many people think that there's no protection for certain kinds of
unpopular speech such as so-called hate speech or pornography or terrorism speech to name
a few that are constantly attacked.
The First Amendment freedom of expression rests upon two fundamental principles: one
prescribes when government may not suppress speech, and the other explains when government
may restrict speech in appropriately limited circumstances.
So first, the non-censorship principle is often called or the content neutrality or
viewpoint neutrality principle.
Government may never suppress speech solely because of its content, its message, its viewpoint
or ideas no matter how feared or despised or hated or hateful that idea, that content
may be perceived as.
Even by the vast majority of the community that is never enough to justify censoring
it.
If we disagree with an idea, if we despise it we should answer it back not suppress it.
If however you get beyond the content of the speech, its message, and look at its overall
context then government may restrict that speech consistent with what is usually called
the emergency principal.
If in a particular context that speech directly causes certain serious, eminent, specific
harm and the only way to avert the harm is by suppressing the speech.
Now, the United States Supreme Court has created or recognized several categories of speech
that satisfy that emergency principle.
For example, intentional incitement of eminent violence where the violence is likely to actually
happen eminently or targeted bullying or harassment that is directly targeted at a particular
individual or small group of individuals and directly interferes with their freedom of
movement.
Another example that satisfies the emergency principle is what lawyers call a genuine threat
or a true threat.
And we use that adjective to distinguish it from the loose way that people tend to use
the word threat in every day speech, I feel threatened that Milo Yiannopoulous is going
to be speaking on my campus.
No.
That is not a justification for censorship.
But if the speaker is directly targeting a small specific audience and intends to instill
a reasonable fear on the part of that audience that they are going to be subject to some
kind of violence then the speech can and should be punished.
One of the really important concepts that helps to enforce these big principles that
government may not suppress speech because of disagreement with its idea, it may suppress
speech if the speech poses an eminent danger of violence.
It's really important to add into that the notion of hecklers veto, the fact that people
who object to the speaker's ideas are threatening violence can never be a justification for
the government to stop the speaker from proceeding with the talk.
The government has to protect the speaker and the audience members who choose to hear
that speaker against the violence by the protesters.