CHAPTER 5
THE RIGHT TO FREE SPEECH
No other right has become so mission-critical to my self-expression as my right to speak up.
Why? I'm a logical person, and pretty good at finding flaws in intellectual patterns. I get paid to do this when I work as a systems analyst and play devil's advocate with clients' implementation test plans. But with politics, I get in and scrap because, yes, I think I can make a real name for myself, and I really think I have something unique to offer.
It used to be that you didn't bring a lot of things up. You didn't cross certain lines in public conversation. People were better off not knowing certain things about sex and psychological motivation. It might distract them from their commitments and family roles. The knowledge of good and evil could make a man impotent.
I can remember the days when kids just didn't say things like "stinky pants." Your parents really would give your mouth an emetic soap enema. Adults didn't show certain things either. Husband and wife were shown in black-and-white sitcoms as sleeping in twin beds, like siblings. Two-piece bathing suits and, heaven forbid, brassieres, were taboo. Real life was to be lived, not shown and then imagined vicariously. Fantasy would get in the way.
Since the mid-1980's it has become gradually easier for individuals to speak up, just on their own. Their main assists, of course, come from the personal computer, followed by the Internet and even the growth (with dropping costs) of desktop self-publishing. Self-publishing, particularly, presents an author's material without any bureaucratic filter or approval from others. These developments pose some relatively new problems, probably not fully appreciated even now. The most obvious problem is that it is easier to publish subject material that some people consider unseemly and a possibly objectionable influence (particularly for their children). The second problem is more subtle. Outspokenness may embarrass families, employers, and especially previously recognized leadership (pressure group, or labor) and gradually undermine all of these. Lobbyists and political action committees appoint themselves to speak for others, and sometimes express the temerity to ask a constituent " to give more than you can afford" at fundraisers. (Along these lines, gay lawyers often try to maintain that gays are a "politically powerless" class when these lawyers argue equal protection claims.) Speaking out, in fact, entails a panoply of certain legal and ethical risks which run up against our basic reverence for free speech. No free-speaker should be employed in public relations!
The best way to get at all this may be to look at the circumstances around the writing and self-publication of my own DADT book along with related Internet materials.
After my expulsion from college for "telling" the dean, I did the mental illness/psychiatry trip and then fought my way back into getting drafted, where I kind of "served without serving" (did not go to Vietnam) ¾ I didn't want to be labeled a security risk for the rest of my life in what seemed like an endless but tenuous Cold War. I came out a second time, went through all the psychological odyssey of discovering my own sexuality and humanity, and then had to play devil's advocate with my own community over the politics of AIDS. When the gays-in-the-military time-bomb exploded in 1992/1993, I woke up. Because of some family and church connections, I had some unusual channels by which to get my own experience and views processed. In fact, after devouring Joseph Steffan's (see Bibliography) book in 1992, I knew I had a printable story of my own. Concurrently, my disappointment with the sequel to President Clinton's DADTDP policy led me into the intellectual models of libertarianism. I started publishing small essays, particularly about government intrusions into private lives. My whole military story (from the draft to the ban) became the axis or fulcrum of my arguments. I began to develop the materials for the DADT book in 1994, and found a literary agent who indeed thought that this was a provocative project. I thought that my narrative, when interleaved with careful research of ongoing gay legal problems, would provide an unusual opportunity first to help the public (gay or not) understand the roots of "homophobia" a lot better and, also, to show that people compromise their own personal freedom when they run to politicians to tie them together in supposedly cohesive and loyal "oppressed classes." I was deeply concerned that political and social debate had often become dumbed down to appeal to the lowest common denominator, where difficult concepts were reduced to deceptively simple slogans by organized interest-group leadership. What is education in humanities for?
Doing the book became an adventure, with some 3 A.M. wakeup calls for red-eye discount flights to go interview various men and women litigating against the ban. I indulged in the fantasy of a major publisher, book tours, maybe a chance to get Miramax boycotted again.
Now, most people look at writing and authorship as a "profession" (akin to journalism) that you "qualify" for. You write for hire. You publish small things or little books about things you don't necessarily consider so personally important (perhaps you even do this with formula genre fiction), to prove you can sell in volume and make money for publishers.
In fact, with non-fiction, it is almost unheard of for someone to come up with an "opinion" best seller without becoming a public figure by doing something else easily recognized first. You get elected to public office and then write a book on how to win local elections, or you run a successful restaurant in rural Texas and come up with an unusual cookbook. Perhaps you make a killing in real estate or the volatile stock market, and then become known as an authority in financial planning. Commercially successful non-fiction tends to stick to a particular, somewhat narrow controversial subject. This is becoming even truer as the super stores put pressure on large publishers to move books quickly, and as tax laws actually penalize publishers for retaining large unsold inventories. The public has always believed that "publication" assumes high volume, commercial success, and reaching large numbers of people with a predigested, popular message. In fact, publication really means making new material available to anyone who will pay the fair market price to read it ¾ a process which confers upon the author all the legal ownership and publicity rights, and legal exposures. Ideas can spread from the grassroots by word of mouth with geometric progression, particularly now when Java computer-programming has made the World Wide Web practically a unified network-style database of most self-published information.
Trade periodicals on the writing business advise that the general public is little interested in any previously anonymous person's opinions or life story. So how impudent of me! Here I am. I've never even run for public office, or sacrificially helped another candidate get votes; I've never been wounded in combat or actually gotten discharged from the military for homosexuality myself; I haven't gotten AIDS (and become a "professional PWA"); I haven't even raised a family! Some people will say to me, "please go away, you have nothing in common with me, you're just not real." To them, I'm just whining because love life is tougher for me than a lot of other people, and covering up my discontent with intellectual constructions. But I do have a provocative story, a subtle one. It tracks closely to what has happened to our culture over the last forty years.
The military fulcrum would generate my argument that it's time to revisit our Bill of Rights, and maybe to rewrite this national document entirely. I would use inductive reasoning. The personal story would be enriched by carefully footnoted research on many other people's stories, particularly with respect to the military ban. I enjoyed that period where I felt I had written down - scribed - the truth, before I had to deal with the possible consequences of "publishing" it. The effect would be a book which, when read carefully and patiently, imparts the effect of watching an epic, perhaps black-and-white, motion picture ¾ my own narrative irreversibly frames the stories of many other characters ¾ all the public figures and gay military heroes you read about in the papers and watch on CNN. A final celebration on the Mall of a new Bill of Rights becomes dramatically inevitable. I needed to both bare my own soul with personal experiences and then add the stories of others to build a compelling book. A literary agent advised me, "Don't leave yourself out of it."
Eventually, I woke up to reality. Mainstream publishing is very slow and cumbersome. I found a way to publish myself very cheaply, with the generous support of various other businesses. I didn’t even need the established "subsidy" (or "vanity") publishing houses. There is "self-publishing" now to get on the air as a talk-show host: you have to find your own sponsors. Even art-house movies are sometimes "self-published," and financed by credit cards.
So did I have a 1st Amendment right to all this when I may be stepping on so many toes? Probably so, but there are a lot of potential legal problems with what I did (none have materialized) and they are very instructive to discuss. For whether my book sells 200 copies or 1,000,000, it would theoretically be judged by the same standards in intellectual property law. (Some listing services will not consider self-published books or books printed in low volume, and others may list them with special coding; but there is no specific standard in the industry for a "published" status other than open availability for sale.) One may ask here, why don't I use a pseudonym, to "protect" others who may be associated with me or want to use my name for their own commercial purposes? If I did, nobody would believe I was serious about what I have to say.
This might be a good place to note that the 1st Amendment is the only one to affirmatively protect a person's self-expression, whether through speech, association, assembly, or religion. Some persons might make a similar claim about the 2nd. But all the other articles that follow in the Bill of Rights deal primarily with the government's trying to do something bad to you.
A good place to start examining the legal pitfalls of self-publishing is copyright law. Now copyright (even before the latest major revision to copyright law in 1976) has always recognized that ideas and subject matter themselves are not copyrightable, and that multiple authors may discuss the same problems without permission from those who have gone before. This is essential for a free flow of information to the public. But what about quotes, the kinds you do in college term papers and theses with footnotes? Aren't these just responsible scholarship, a complete answer to plagiarism? Or are they some unfair vehicle for leveraging the work of others beyond their original intentions? In intellectual property, after all, the whole is more than the sum of its parts and potential (rather than "present") value is even more nebulous than in financial securities markets.
This gets back to the concept of "fair use" as Congress defined it in the 1976 Copyright Act. Brief quotes without permission from the original author generally are permitted when the purpose is "scholarship." However, my book was being developed, in legal terms, as a for-profit venture (by a proprietorship set up to publish the book, necessary to get the book indexed). I had no non-profit sponsor or organizational publisher. (I did file my first year of operation as a "hobby" on my 1040, however, and couldn't even deduct expenses since, as a renter, I don't itemize deductions.) "Profit" or commercial motivation weighs against fair use in the copyright law. In previous cases, courts have held that commercially produced books could do minor amounts of quoting without permission if all other factors are favorable. However, it still seems conceivable that in some circuits an offended original author could bring a suit on the theory that Congress never explicitly said that for-profit authors or publishers could quote without permission at all, and that established trade publishers may need to protect their rights (literally as stated in many books which forbid any reproduction at all) more vigorously as technology makes self-publishing easier, cheaper, and more unpredictable in value. On the other hand, the use of one's own personal financial resources to stimulate public debate with what is nominally or formally a "commercial" venture seems essential to the freedom of speech. After all, non-profits often get tax breaks, and it seems ironic that tax-exempt status should improve an author's legal position in copyright law, but it does.
This sounds like a theoretical point, and it is, but then consider this. Any party involved in producing a book containing an infringement may be liable for the infringement. These parties could include the book's printer (not publisher), typesetter, proofreader, or any bookstore carrying the book ¾ even if they do not know about or suspect the infringement! This observation could have made it impossible for me to print or copy the book. I doubt many printers or even booksellers know this, because litigation based on this point has been very rare. There have been suits against duplicating services which thought they were within the law by assembling various original documents into new compilations. For online publishers, the legal environment is more lenient: as of this writing (and according to a few court cases), the service provider (or computer owner) must know or suspect the infringement (or pretend to be screening for them) to be liable. There are proposals in Congress to tighten up copyright law for electronic display, partly because some providers want to be able to protect the information they furnish as well as its presentation (and this may well violate the 1st Amendment). All in all, the legal risk could be a problem for small, home-based ISP's. Publishers often require authors to sign agreements indemnifying them against the legal expenses of defending possibly frivolous lawsuits arising from controversial material. This further chills the circulation of information and ideas, although I haven’t heard of printers or ISP's doing this.
There were other possible torts, such as libel, invasion of privacy or infringement upon publicity rights. I was not very concerned about libel because I had plenty of documentation for my facts, although that I had to be careful about discussing other patients during my period of psychiatric confinement and about discussing other college students who had made unusually homophobic remarks (or even threats) or professors who had been rumored to be gay. Invasion of privacy or infringement on publicity actions could have occurred, depending on the particulars of a potential litigant, because I needed to add the stories of other people to amplify the example set by my own story which, without all the other cases during the 1990's, would not have been strong enough by itself to be worth publishing. These torts have become particular problems for novelists basing their stories on real personal experiences or historical events. In some countries, such as Britain, libel and invasion of privacy may be more tied to a perceived authorial "malice" than in the United States. Here, free speech would benefit from tort reform, which would punish at least the frivolous or vindictive lawsuits with "loser pays." (This is actually already the case with some copyright suits.)
Libel and invasion of privacy actions can be especially nettlesome because the plaintiff would not have to prove he was actually "harmed." Libel presumes strict liability once the falsehood of the written defaming statements is established by "preponderance of the evidence." (For purposes of "libel," "publication" means merely communication in writing to one other person who understands the message.) Invasion of privacy can be triggered by the plaintiff's claim of anxiety or emotional energy or stress. A for-profit business sponsorship (such as a proprietorship) for the offending work might be held against the author or publisher. Invasion of privacy suits are most likely from a party that wants to establish a "zero tolerance" for public appropriation of that party's history even for an apparently legitimate, informative purpose.
My stating of my own opinions (very clearly protected by a legal doctrine called "the opinion rule" as a corollary of the 1st Amendment) bore little value until I added specific facts - personal narratives and research. Some would say, why should I be "trusted" with my facts, if I don't have some kind of organization backing me up? Isn't that what "democracy" is for, to vote on tough questions of shared sacrifice so that people don't have to think out these moral problems on their own? In other countries and societies, written material has been considered so potentially dangerous that you need a government "license" to write. Some people would argue that a state of affairs, where people need some previous credibility and bureaucratic supervision in order to publish, tends to protect the public at least from egregiously false information. Thankfully, the 1st Amendment today seems enough to protect a team of one in presenting factual (even downright dangerous) information ¾ yet many people don't seem to realize this.
Although it hasn't happened to me, zoning laws and other business regulations could be thrown my way as I operate a tiny home-based book publication business. I could be prohibited from selling or keeping the books on residential premises. Or I could be required to print a minimum number of large-type editions to avoid any appearance of "discrimination" against the visually impaired!
There are possible crime-associated risks as one enters electronic publishing that are even more frightening. I haven’t heard of any lawsuits like this yet, but consider these scenarios: A writer inadvertently gives others a destructive computer virus and others claim the person should have been more skilled with anti-virus software. A hacker determines a password (say of an ftp web site) of someone broadcasting unpopular views and uses it to disseminate child pornography. Maybe the person convinces the police of his innocence as far as criminal charges go (or maybe not), but the parents of the children affected sock the writer with a huge negligence civil lawsuit.
---
The lesson from all of this discussion is clear. Many people are in a position in their own lives where they may not speak their own minds (even with their own resources) about particular issues without creating conflicts with their sources of income. The obvious example might be that you can't work for a tobacco company and publicly criticize cigarette smoking. (You can report violations of law or unethical practices under the protection of whistleblower laws.) Servicemembers, as we know from the McVeigh case, can't identify themselves as gay even on their own private anonymous accounts, and this certainly interferes with their free speech rights since coming out is certainly one of the most effective possible political statements. Many professionals, such as trial lawyers, lobbyists, bank loan officers, insurance underwriters and even claims examiners, may not speak out about certain issues without jeopardizing their credibility with customers and employers. (Would any employer check for this with web search engines?) Conceivably, a manager with the power to review subordinates' performance could incur legal risks by venting his own opinions, even with his own time and resources (as on his own personal web site), if these remarks could be interpreted as "hostile" to people with various characteristics (say illness or disability, even if these interfere with work). This would extend already well-known concerns about sexually harassing "speech" in the workplace. Some consulting firms want to use their associates' names and reputations to get business and would be undermined when associates seek publicity rights on their own. (The Miss Colorado pageant provides a good example.) Some technical writing positions ask that applicants provide their own personal web pages! Business (most of all, the law business) is necessarily adversarial, where the well-being of the customer takes precedence over truth. During the military ban debates, various prominent people did not participate in popular AOL or Internet forums at all. So there is a constitutional right to free speech as far as government is concerned, but there is no fundamental right to speak out and earn a high salary!
This brings us back to better known issues for free speech. The most notorious of these is the 1996 Communications Decency Act. Congress had tried to make it a federal crime to display "indecent" (as compared to "obscene" which invokes notions of redeeming social value) material in any electronic media where a minor could conceivably find it. Now, consenting adults have a 1st Amendment right to transmit "indecent" (but not "obscene") material among each other. The Court held that, under the CDA as written, there was no credible way to keep "indecent" material away from children without chilling the ability of adults to access it. Apparently, various schemes of blocking indecent materials could not be reliable, and a person who depended upon them when posting indecent materials could not safely stay within the law. (This finding could be debated productively.) Furthermore, the word "indecent" itself was not precisely defined. The CDA termed it as "a patently offensive description of sexual or excretory organs or functions." One could say that notion of "patently offensive" was, from a constitutional perspective, overbroad; this had been an important finding by the appeals court earlier. For all practical purposes, the word "indecent" left open the use of community standards just as is did with "obscene." (At the last minute, the CDA was slightly amended, however: certain "dirty" words were deemed as "indecent" in ordinary circumstances, as were most discussions of abortion ¾ again, a content restriction.) Any prosecutor anywhere in the United States could conceivably have used his own community's notion of "decency" to prosecute anyone anywhere in the country for a posting he found offensive (or even anyone providing a link to such a posting). Therefore, the Supreme Court correctly found that the [many provisions of the] CDA would effectively stifle discussion of controversial but important subjects (which would include safer sex, AIDS, condoms, and even homosexuality itself) intended to remain among adults [and overturned much of this law].
Another argument against the CDA was that Internet service providers can provide parents with effective tools to allow parents to screen out objectionable materials. AOL allows parents to restrict their children's access to a "kids only" section. Now some object that this is too much responsibility for already overburdened parents (and particularly poorer parents). Others feel that the Internet (and indeed our entire culture) should be shaved down to a "G-rated" level presentable to children - this brings us back to a kind of warped family values debate. A variation of this theme occurs when public libraries allow gay newspapers to be picked up in public areas accessible to children.
Maybe violent content is more harmful to children and vulnerable adults than are sexually explicit materials. Recently, Paladin Press and one of its authors were sued for the book Hit Man, because a murder for hire was committed in Maryland following the "instructions" in the book. The murderer is certainly criminally responsible for his own act, but what about the culpability of someone who anonymously gave him the blueprint to do it? Problem is, the murderer probably would have committed the crime anyway; and Hit Man arguably could be used by people intending to learn how to avoid assassination. Should the author of Turner Diaries be held partially responsible for the Oklahoma City bombing? What about novelists who describe bizarre but effective means of assassination? Are they responsible if someone imitates them? What about postings on the Internet of the methods to make biological or chemical weapons? ¾ a few of these are much easier and cheaper to make than most people realize. What about a college student threatened with prosecution for publishing on the Internet a particularly violent short story, supposedly interpreted as an announcement of actual intent to commit the acts described? Some people have called for criminal censure of hate speech, because it may incite unstable individuals to commit horrendous crimes later, although the legal notion of incitement probably requires that the actual crime take place at the scene of the speech (based on the "fire in a crowded theater" notion). Hate speech should fail on its own in open exchange of ideas.
In September 1998, Congress passed the Child Online Protection Act, a "son of CDA" bill that essentially replaces the notion of "indecency" with a concept called "harmful to minors," at least for anyone operating a commercial (offering anything for sale) web-site but displaying a sample of "harmful" materials without restriction. It is supposed to be harder for a prosecutor to prove material "harmful to minors" than "indecent" (even according to the nebulous community standards doctrine). Frankly, to me, the term "harmful to minors" is even more overbroad than is "indecent." It is supposed to be a midpoint compromise between "indecent" and "obscene" in that "harmful to minors" materials become acceptable if they have positive "value" to minors - but that means all minors, even six-year-olds. Certainly, some material not suitable for a 6-year-old might be all right for a 16-year-old. The legal definition of "harmful to minors" does refer to graphic appeals to prurient interest, but prurience may reside very much in the mind of the viewer. A social conservative can argue like this: young men may not develop and retain "normal" adult sexual interests (as within committed marriage) if they are distracted or desensitized by superficially exciting or titillating materials. A minority of people might find any discussion of homosexuality similarly destructive, an interference with boys' growing up to be "sexually normal." ¾ this viewpoint used to be found in psychiatry textbooks a generation ago, as well as the idea that unattractive older gay men would die alone if they didn't "change." (This observation should not be confused with discussions of child pornography, because kiddie porn cannot be produced without violating the consent of persons - under-age children.)
Some individual liberty advocates such as the Cato Institute warn that the Supreme Court, with a future, slightly narrower CDA-style law, may indeed find that electronic speech is "pervasive" in a manner similar to commercial broadcasts. It sounds like the bill could have the same chilling effect, possibly forcing smaller vendors of web space out of business, at least those serving individuals doing any commercial advertising (however incidentally), although the new law may have more "protection" for online service providers than did the original CDA. Others have suggested that only web sites that do not require credit-card-type validation in order to charge a per-transaction access fee or adult-access validation for sample adult material could be affected. The Supreme Court has hinted such in F.C.C. v. Pacifica. On balance, it seems that a narrowly-defined child-protection law (banning on-line display of explicit depictions [not mere mention] of sexual intercourse or instructions on bomb-making) without some kind of access restraint (as is reasonably available from technology at any particular time, such as digital signatures) for minors might ultimately be found constitutional. Still, one wonders, would the Starr Report on President Clinton's conduct be placed under restricted display under the "new" CDA?
One irony about all of these attempts to criminalize the "display" of socially "harmful" materials is that the Clinton administration is busily pushing the right of the government to decipher any encrypted communications between or postings by individuals!
Another variation of the free-speech conundrum occurs with the use of public funds (particularly in state universities) to fund special interest groups. Some people claim that using tax money to fund personally offensive speech insults a taxpayer's own 1st Amendment rights. Universities will probably appeal to arguments involving diversity and minority groups (which may include gays) and also contend that the students themselves determine which groups they want to establish. Many scenarios can occur. The Boy Scouts of America, well known for their military-style (and military-inspired) ban on homosexual scoutmasters publicly defend its policy not as a fear of child-molesters but as part of its plan to inculcate adolescent men with old-fashioned values concerning "masculinity." It has a right to do this if it is really a totally private, non-commercial voluntary association, but as with so many organizations, there is debate as to its dependence on public funds and approbation, such as its congressional charter. Now, governments charter private universities and corporations, local police and fire departments support private groups; and governments offer tax breaks to non-profits all the time. Does this change their essentially private nature as free associations, protected by the 1st Amendment (although perhaps less directly than free assemblies) as a corollary of free speech? Of course, some people will argue that organizations like the Boy Scouts of America (or even the Freemasons) are so "powerful" culturally that they must be curbed, even more so if private. But where do you draw the line? If you don't like their message, start another cultural fraternity of your own. Certainly, governments should be stopped from assisting groups like the BSA any further. But government must not interfere with such organizations as long as they do not threaten other people. Freedom of association and freedom of assembly, both included in the 1st Amendment (assembly explicitly) go with free speech.
Many people, however, seem to think that no large organization should be allowed to broadcast views that are harmful to minorities. In American law, libel or slander can offend only a specific plaintiff (person or corporate entity) and not a class of persons. Inaccurate criticisms of "classes" of people are always presumed to be 1st Amendment protected "opinions" (although some lawyers maintain that international law would force us to observe "blood libel.") As technology makes any team of one a potentially subtle but potent influence on debate, we must remain vigilant against those who see speech as harmful to public order and particularly to the most vulnerable members of society. We must defend the right of those to demonstrate in public places with even the most objectionable messages (like "God hates fags!) We must resist proposed cultural exceptions to the expression provisions of 1st Amendment, such as a Flag Protection amendment. What is at issue is the political power of the individual ¾ the capability for the town crier to influence moral debate without sending money or tribute to politicians, who tend to corrupt "democratically managed" moral thinking with their inevitable rounding errors. On the other side of the world from this is the more personal question: when should one listen, and when should one have the right to be listened to?
Further, as New York Senator Moynihan suggests, we need to pay heed to our natural right to know what government is doing, and to place a rein on government secrecy.
Certainly, some will say this chapter has raised some typical libertarian straw men. But the ultimate issue is whether we will continue to broadcast and vent our own views and values, or whether, as in Singapore today, they will be subject to some kind of "democratic" (or authoritarian) approval before they are even expressed and revealed publicly. Remember, when the printing press was invented a half-millennium ago, loud calls for its regulation followed immediately. Even today, we have seen instances where religious presses surreptitiously buy out printing rights to books to keep them out of circulation. Remember Ray Bradbury's Fahrenheit 451!