Standing With Free Speech

A New York Times editorial by Ulrich Baer, a provost at New York University, argues that the freedom of speech should be reduced to a balancing test between the inherent worth of a particular viewpoint and society’s obligation to ensure all individuals from all groups have an opportunity to be “fully recognized” in the societal debate.

Notably missing in Mr. Baer’s analysis are three very important questions:

  1. Who ultimately decides the value of a particular viewpoint?
  2. What does it mean to be “fully recognized” within a national debate;  what factors and evidence are used; and who decides?  Is it objectively determined or is it subjectively determined by an individual?  If subjective, how is it enforced?
  3. How is it determined which community an individual belongs to?  A transgender (Mr. Baez uses transgender individuals as an example in his article) individual in Boston is a member of a particular neighborhood community, school community, social club and scene, is a Bostonian, and is potentially a member of a political movement (though assuming that an individual identifying in a particular way is a member of a particular political movement is presumptuous).  Which community must the member be a fully recognized member of to balance against the ambiguous value of a particular viewpoint?

The freedom of speech, contrary to Mr. Baez’s article, is designed to allow as much speech as possible into the public dialogue.  Some – even much – of that speech may be coarse.  Some may not effectively advance an argument and other views may be eloquently stated.  Some may offend, some may enrage; but each individual can choose to accept, reject, ponder, or explore each thought and eventually come to a conclusion.  This is not possible when certain viewpoints are arbitrarily closed off because someone might become offended.

What Mr. Baez should be more concerned about is what the law actually does protect against; violent reactions to speech.  The law does recognize that some speech is designed to incite violence and, as such, that speech is prohibited (under the incitement and “fighting words” doctrines).  This is typically fact-based, meaning each case has to show that the particular words were intended in a particular consequence to cause a violent reaction.

Violence as a response to speech is not acceptable and the government should take action against those who violently react to speech, actively promote violence, and those who violently prevent others from speaking.  But the key difference is in the action, not the speech.

Thompson Law Offices, LLC believes in the free speech of all individuals and seeks to protect individuals against adverse action by the government.  A government actor can be the township, county, or state, but it can also be a government employer or a school.

If you believe you have been prevented from speaking based on your viewpoint by the government, call Thompson Law Offices at (888) 866-6947 for a free consult and case analysis.

Eastern District of Pennsylvania Holds Recording Police Activity In Public NOT Constitutionally Protected

In an opinion today, Judge Mark Kearney ruled that citizens who, at the time of recording, do not intend to challenge police activity, have no right to videotape police officers performing their duties in public.  You can read excerpts of the decisions here, as reported by The Legal Intelligencer today.  The opinion was not publicly available online at the Eastern District’s website and the decision may not be appealed immediately, as there were other issues to be decided in the case.  However, the attorneys for the plaintiffs have indicated their desire to appeal the case, according to the article.

Once the opinion has been made public, Thompson Law Offices will review the decision and post further analysis.  However, given the importance of the case, it was felt necessary to post the decision, without analysis, sooner, rather than later.