The Garland Texas shoot out has spurred another round of speechifying on free speech, much of it of the yes but variety. I don’t like a lot of it since while I am not a free speech absolutist I come darn close and I figure it is wise to be vigilant, and suspicious, when people step up their yes butting rhetoric.
I can’t object overly to people grousing about the motivations of the group that held the event. It’s free speech to not like what they are up to. It’s free speech, too, to advocate legal (most likely constitutional) changes to make us more like the rest of the world, which some commentators would like to do.
But there is the underlying problem of the “reasonable man” concept that in the end almost all law is premised on. Culture trumps law as it does politics and most other things, and if the culture shifts massively away from traditional notions of free speech, one way or another the law will move with that change. So it is wise to keep a close eye on the debate for signs that values are shifting in ways that will prove capable of undermining what we consider to be settled law.
And we do seem to have a rough legal consensus on concepts like “fighting words”. Since the Texas shooting we have seen another round of arguments that the event itself was a provocation–was designed as a provocation–and as such may cross the “fighting words” boundary. That sounds good if you are inclined to believe it–but is it a legally sound argument?
The concept of “fighting words”, introduced in a Supreme Court case in the 1940s has been progressively (!) whittled down over the years, to the point where Nadine Strossen says it is essentially meaningless. As the FIRE article points out, in a more recent Supreme Court case that whittled at the idea “(t)he majority held that fighting words were only ‘those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.'”
A cartoon show, even one designed to inflame, does not make the cut IMHO. More the better, too.
Still and all, you’ll note even in the whittling language above that inevitable reliance on the reasonable man–the “ordinary citizen” who would conclude an action is likely to provoke a violent reaction “as a matter of common knowledge.” Beware those tendencies.
We tend to think of the left as giving in nowadays to the siren’s song of throttling speech, and it has tended to be the right that has seemed to take up the cause. Interesting since as Razib has pointed out, the general impulse in favor of unfettered speech is positively correlated with education and political liberalism of the contemporary variety.