Free Speech Isn't Free-of-Consequences Speech

In a lot of discussions about free speech in America, typically referring to the First Amendment, I've seen what feels like conflation of several different ideas into one concept, leading to the use of strawmen to avoid actual discussion, often unintentionally. I'm not a constitutional scholar, but from decades of reading and recent court cases, I can tease apart the separate issues.

Give me some runway to define the situation before I get to the heart: consequences to speakers who engage in extreme speech.

Government-run institutions, whether at a local or federal level, can't pick and choose the speech they allow. That's the fundamental bedrock of free expression in America: in whatever fora are available in which some people may speak (or simply be), the government cannot choose among various kinds of expression and choose which is acceptable and which isn't. The sole exception is a sub-category of hate speech, in which the statements or actions will credibly lead to the imminent incitement to "lawless action." (The Supreme Court set this test in Brandenburg v. Ohio.)

This comes up routinely when governments attempt to create "free-speech areas" far from the subject of a protest, limit or control artistic expression in public spaces and buildings in which other forms of art are fine, or at a college that tries to block a visitor, speaker, or instructor on the basis of what they have said in the past or reportedly plan to say.

This can seem awful. Why should a hate group like the KKK (which now exists as dozens of fractured groups) be allowed to march, hold a rally, speak on a campus, or distribute flyers when they have a history of inciting violence? Books have been written about why it is (or why it shouldn't be), but it's the state of how things are and reflects how courts will handle disputes.

It's also noted by the ACLU, seen as a stalwart of protecting left-wing speech, that it defends the KKK and others both on general principles, but also because it consistency finds that the rights it wins in courts in those cases it later uses in defense of liberal principles, too. As the ACLU has written, "[T]he Supreme Court’s decision in 1969 in Brandenburg v. Ohio upholding free speech for the KKK was the principal decision relied upon by a lower court the following year in overturning the conviction of Benjamin Spock for opposing the draft."

(We also don't have a rule of prior restraint in America, which is censorship before the fact. The government can't prohibit a book from being published because of concepts it contains that might be subject to criminal charges or civil action. An exception is granted for national security, and it gets very murky. Private parties can't bypass this by suing to prevent the release of material, because they must rely on the courts and government intervention, producing the same effect. I bring this up for a point later.)

Those who follow norms of civil discourse can't win when confronted with those who have no concern about adverse outcomes. The primary confusion I see in discussions is the conflation of following constitutional edicts with endorsement of speech. This regularly (but, honestly, not that frequently) comes to the fore on college campuses, because they tend not just to encourage lots of different kinds of discussion, but also have students, staff, and faculty who want to bring in views contrary to the prevailing campus attitudes.

This came up with Milo Yiannopoulos' recent "Dangerous Faggot" tour, the title of which was even intended to stretch the limits of acceptable speech in reporting on it. Yiannopolous is a provocateur, who has no fixed opinions — it's possible to find several contradictory ones among any few year period — and has profited well from his current extreme right-wing, white-supremacy-adjacent position.

Because colleges allowed other speakers, there was no effective way to bar Yiannopolous, even though he had previously released information during talks harmful to people on campus, had violence break out at speeches (sometimes between protesters and counter-protesters), and had announced his intention to release damaging information about students at UC Berkeley. Colleges sometimes try to present a bill for security or have security requirements for groups bringing in speakers, but these seem to not pass a smell test, either, from what I've read, as they discourage speech.

UC Berkeley couldn't win. It was a clear constitutional violation to bar him from speaking, but allowing him to speak could have caused harm to students. In most cases, people don't engage in this kind of speech, because of the potential for consequences.

Freedom of speech isn't freedom from criticism of that speech. A requirement to adhere to the First Amendment doesn't muzzle anyone. UC Berkeley's Chancellor, for instance, released a statement that included this: "In our view, Mr. Yiannopoulos is a troll and provocateur who uses odious behavior in part to 'entertain,' but also to deflect any serious engagement with ideas."

The university can't restrict protests and counter-protests under the same guidelines. As disruptive as it might be, free speech isn't so much better served by more speech (a common trope), but by the robust encouragement of speech. That is, the trope suggests we should hear as many terrible ideas as we can, so that exposed to light they shrivel up. I'd rather say that terrible speech should be heard in order to bring together opposition to that speech with the clarity of why it is wrong. (This happens in opposite, too: an inclusive speaker being protested by bigots often rallies counter-protesters and a reinforcement of inclusivity.)

Berkeley has to allow Yiannopoulos to speak because the institution invites speakers and allows organizations to allow speakers, but they don't have to stifle speech in opposition to his — nor can they stifle counter-protests to those protests. That's one consequence.

Freedom of speech doesn't provide you commercial fora. Yiannopoulos has a book contract with Simon & Schuster, which ostensibly will be a Bill Maher-style humorous takedown of political correctness that doesn't include the kind of hate speech he routinely engages in. It might be less offensive, in fact, than the typical Ann Coulter book. Maher had Yiannopoulos on his show recently, in a widely condemned move. CPAC (at this writing) has him featured as the keynote presenter at an event dedicated to conservative principles.

Threats of boycotts against Simon & Schuster do not equate to silencing him, despite the efforts to paint it that way by a surprising number of publishers, free-speech groups, and his agent. Our rights in the U.S. prevent the government from preventing your book being published, including threatening publishers that might produce it. It doesn't guarantee your terrible ideas turn into a book contract, nor that a publisher, once offering the contract, doesn't tear it up. (Update: Simon & Schuster canceled the contract.) (The publisher could be sued, conceivably, if it cancels the contract in a way that breaches its terms.) Maher can uninvite Yiannopoulos with equal impunity. CPAC can likewise cancel his speech. (Update: It did.)

These are all the consequences of free speech. Yiannopoulos can publish in other ways, including self-publishing, finding another publisher, or even buying a high-volume laser printer and get the results trimmed and bound and selling the book on street corners and via mail order. All of those actions are protected from government interference. He can use the Internet to spread his ideas, as he has long done, and companies can ban him from their services, as Twitter did, without banning him from the Internet. (Commercial Internet providers work within a form of common carrier laws that immunize them against data that passes over them in exchange for them not interfering with it.)

(About prior restraint, above: Simon & Schuster has whatever rights to review his work before it goes into print; that's not prior restraint. The government can't oversee it or prevent its publication, though a successful libel lawsuit afterwards could have the consequence of the publisher pulling it from sale.) 

Consequences of civil disobedience and violence. Constitutionally protected free speech also isn't immune from extra-legal responses by individuals and groups, which is where police and courts get involved. A group might choose to prevent Yiannopoulos' speech by barricading entries and screaming to prevent him from being heard. That's a civil act and could result in arrest. The people engaged in civil disobedience can't carp if they suffer a consequence from denying speech; many revel in it, showing the flaws in a system that has no fetters, and many examples of civil disobedience changed the world.

People may also choose to engage in violence. The "punch a Nazi" meme that has been rolling around since white-supremacist Richard Spencer was punched while giving a video interview must be paired with the notion that the assailant could be arrested, charged, convicted, and sent to jail for their actions. That, again, is a consequence and some people may choose what they believe is the moral high ground of assault knowing the potential outcome of incarceration.

Campus disinvitation is not frequent, but it's used to score political points. The number of times people try to bar speakers from campuses with any kind of organized or substantive effort is relatively few, usually focused on a few individuals, who are often on the far right, but sometimes on the far left. These incidents are blown up out of proportion by those who are often far less extreme members of the same ideology to use as political props.

One group, FIRE, has tracked this since 2000, and has over 300 incidents involving substantially fewer people — for instance, William (Bill) Ayers has been the subject of eight disinvitation attempts, half successful. FIRE defines disinvitation broadly, so this includes institutions asking someone to not come, people withdrawing their attempt to speak, and people being unable to speak while present. Only about half of the attempts in the database were successful, but about 2/3rds of attempts were from left-leaning groups.

You don't have to smile and agree. One additional point related to the recent Washington State Supreme Court decision that a florist who provides flowers for weddings cannot choose to discriminate against protected classes, whether by race, gender, marital status or others. In this case, a florist who routinely did flowers for a gay couple declined to do their wedding arrangements, citing her religion.

The florist maintains that her arrangements are protected artistic expression under the First Amendment, as are her religious beliefs. In a statement, she said, "The state is trying to use this case to force me to create artistic expression that violates my deepest beliefs and take away my life’s work and savings, which will also harm those who I employ. I’m not asking for anything that our Constitution hasn’t promised me and every other American: the right to create freely, and to live out my faith without fear of government punishment or interference."

But her statement muddles principles, which is a reason the court found so strongly against her: "Public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined."

She can make all the flowers she wants and have any religious belief she wants. She simply cannot choose in a commercial setting using a discriminatory filter about who to serve. She wants to have her cake (well, flowers) and eat it, too: to be able to apply personal beliefs in a secular realm. This is just as clearcut as if she wouldn't create bouquets for black people, but would for everyone else. (You can refuse service for all kinds of other legitimate reasons, they just have to be applied to everyone.)

But there's one bit of this story that was missed. Public accommodation laws don't require that the people operating a service have to suppress their personal beliefs in providing service, so long as they don't act in a discriminatory fashion or express hate against a class in a way that would constitute that in effect. (As I understand this, of course.)

The florist can, for instance, openly discuss her religious beliefs with customers, as little as many might want to hear them. She isn't stifled. She's not required to smile. She's not required to agree with her customers about their beliefs. She doesn't have to put a rainbow flag in her window.

Pharmacists: Just Say Yes

There's a weird debate raging right now in the U.S. If you're not an American, you're going to be baffled by this. Pharmacists want the right to refuse on ethical or moral grounds to fulfill certain prescriptions. Now, now, I know that if you're outside the U.S., you're checking your calendar to see if it's April 1. This isn't about Christian Scientists getting jobs in drugstores and then not selling any drugs (although that would be a great test case). Rather, it's about people with specific religious beliefs wanting to exercise those in a regulated environment to deny legal drugs or devices to people with a prescription from a medical doctor or another professional with a right to prescribe.

Here's The Seattle Times and The Seattle P-I on an information meeting by the state Pharmacy Board in Washington yesterday. The problem isn't someone abusing a drug--I'd like to hear the moral opinions of pharmacists who dispensed massive amounts of hydrocodone and oxycontin--rather, it's this event in the P-I's story: "For example, a pharmacist at a Seattle hospital in May refused to fill a woman's prescription for antibiotics because it came from a facility that provides abortions. The pharmacist cited religious objections, Luftig said."

Yeah, that's just great.

We are ostensibly still a civil society ruled by law, not religious leaders, anti-christs, or oligarchs. (I know, I'm trying to talk about our ideal state.) In a civil society, that which is legal should be obeyed. If you believe the law is unjust--which in the past has typically meant that a law had an onerous effect on a minority of people, such as segregation--then you work for its change through civil disobedience, lobbying, and electing new leaders. (Options outside that are not part of a civil society, such as assassination, intimidation, and outright disregard for law--such as stating that because you're president the law doesn't apply to you when you decide it doesn't.)

Pharmacists who believe that dispensing drugs that will prevent pregnancy (emergency contraception) is against their moral or ethical system will need to stop being pharmacists while they work to have laws changed to prevent those drugs from being legal or allowed to be prescribed. If we all, as a society, individuals to prevent legal access to legal medicine, then there is no slippery slope. It's all downhill. It means that a member of the Aryan Nation whose morals forbid providing medication to black people would have as many rights as a pharmacist who believed in encouraging abortion by withholding emergency contraception.

This is a harsh opinion, of course, but it's not out of line with the principles on which are society is founded.

Update: Some good exchanges in comments with someone diametrically opposed to me but who respects my opinion enough to engage, and I likewise. I disagree with him, but it's so refreshing to hear a frank opinion with logic behind it in this debate instead of seeing bloody fetuses contend with bloody hangers.

One point I didn't originally make above is that my big fear about pharmacists being allowed to pick and choose which drugs, which formulations, and which doctors or institutions for which they fulfill legal prescriptions is that it doesn't allow the average person to know reliably whether any prescription they are written may be fulfilled at any given pharmacy.

If regulations are passed that allow pharmacists to express moral judgments over dispensing drugs--rather than, say, safety or legal judgments that would involve them calling state investigators about overprescription or dangerous combinations a doctor was advising--then the questions will be:

Can a pharmacy choose to only hire pharmacists who adhere to a particular set of moral beliefs and will that involve a written pharmacoepia that they will adhere to?

Conversely, may a pharmacy choose legally to not hire a pharmacist who doesn't sign a pledge agreeing to dispense all legal medications with a legal prescription?

May a pharmacist change his or her mind without losing his or her job?

May a pharmacy post a notice, "This pharmacy dispenses all legal medications"?

Will a pharmacy be required to post a notice that reads, "This pharmacy may choose at its discretion to decline to fill any prescription on moral grounds?"

Will pharmacists be required to provide written moral objections for each prescription they decline? For instance, if a pharmacist (as noted in the P-I story) refuses to dispense drugs that aren't involved with a particular hot-button issue (let's say, birth control) when it's a prescription from an institution that they have a moral objection from, will they face repercussions? For instance, let's say I live in a tiny town, 100 miles from anywhere else, with a single drugstore. Let's say my pediatrician happens to perform abortions on the side. Let's say the druggist, presented with a prescription for critical antibiotics for my child says, "I cannot ethically give you those drugs because my morals prevent me from handling prescriptions written by Dr. X." What happens then?

What's to distinguish racism or other bigotry from moral objections? In the comments, my agile disputant notes that if an Aryan Nation member won't prescribe drugs to a person of color, that discrimination laws would cover that, noting there are no discrimination laws that cover, say, abortion drugs. But I'm not sure that answers the question. If my religion says that left-handed people are an abomination, then when someone tries to sign for their drugs with their left hand and I object based on strongly held religious beliefs, how will I be prosecuted? And will it be a civil or criminal offense?

I'd like to know some answers to this. The ethical issue is being presented quite narrowly as "druggists don't want to give out abortion pills," but I don't see how you can construct in a commercial, civil, and legal solution that provides predicable medical access to drugs without answering these questions.

Bob Barr, Constitutional Hero

I never thought I would write these words: I have great admiration for Bob Barr. Most of his policy positions and his method of campaigning are abhorrent to me. But his out-of-office role as defender of the Bill of Rights is quite remarkable, especially when he stands up in front of Republicans and points out that that party should come after country.

There's a fundamental problem with Bush's stance on his role as executive, and that is that his faithful are (or perhaps were) largely defending him because of a host of reasons mostly related to personal trust or party affiliation, not law or reason. If Clinton had attempted this seizure of power from checks and balances, I'd be dismayed, too, even more so because Clinton was a lawyer, was a scholar.

Here's the key line from Dana Milbank's Washington Post story:

"Whether it's a sitting president when I was an impeachment manager, or a Republican president who has taken liberties with adherence to the law, to me the standard is the same," [Barr] said.

Concierge Care

I've been seeing a concierge practice doctor for several years now since he and his partner decided after the departure of two of their colleagues to form their own high-priced retainer service to opt for a middle-class one. I pay several hundred dollars a year for unlimited care from my doctor. This has been invaluable to me, although more useful when I was coordinating my cancer care in 1998 than in recent years. Until Ben's first cold several months ago, I had avoided any cold or flu that was more than a passing runny nose for two years. Now I've had several colds via Ben, and I don't blame him a bit.

Concierge medicine involves a doctor assuming only the risk to provide their service to a patient and the services of their office. This has caused Washington State's insurance commissioner to investigate the practice as he believes it might fall under the provision of an insurance company. I don't believe risk is really involved because the doctor is pledging his or her own services. My doctor's practice puts fees in escrow until after each month in which service is provided, thus limiting a patient's actual dollar exposure to $0.00 for any given month.

The New York Times is picking up on this trend quite late. The Wall Street Journal wrote about my and other doctors back in 1998, and I was quoted in the article. I have the same reaction as many of the folks on both sides of the concierge debate in this Times article: I love the access I have and I know my doctor enjoys his practice more. And I know that he is able to better keep up on developments in treatment and have his own life. Nobody said that being a good doctor should involve 80-hour or 100-hour weeks for your entire career.

The "lavish care" in the headline doesn't apply to most retainer-based doctors. Lavish means getting the doctor on the phone when you call, getting in the same or next day for an appointment, and spending 15 to 30 minutes with a doctor when you're there. Lavish. Right.

On the other side is the fact that the more doctors that retreat into retainer-based services, the fewer doctors available for general medicine. Retainer-based doctors have fewer patients in their practices. Because I can afford his fees, it means I get better health care than others who have to see whomever.

Of course, my reaction is that Medicare and other social support systems for healthcare should organize to build networks of retainer-based clinics that would allow patients to avoid expensive emergency room visits and save everyone in the system money. For fairly small fees, people with little or no money could be subsidized into better health care. Right now, hospitals eat huge bills (or pursue people with no money like they're the Erinyes) or people face financial ruin.

There is a lot of evidence that the lower you are on the income totem pole in the US, the worse you sleep and the worse your health. Because you make less money, the less you are able to improve your health through routine care and medication that might cost a fraction of emergency-room visits or late-in-the-process care. There's that telling scene in As Good As It Gets when Helen Hunt's son who has some kind of asthma-like disease is finally seen by a regular private-practice doctor paid for by Jack Nicholson: the doctor says, this is pretty easily treated as long as we're on top of it. This is not Hollywood magic.

US Out of WalMart

Does any small fraction of our population understand that WalMart is a scourge not because it offers low prices, but because it's destroying our healthcare system?

The company has 1.33 million employees. According to a leaked memo in today's NY Times on reducing health-care costs, 46 percent of those employees children are uninsured or on Medicaid. Because WalMart pays essentially poverty wages (legally), when they replace jobs in communities through their predatory practices that first drive out businesses through underpricing, they do the following:

  • Reduce money going into the community. They don't grow jobs, they replace them, typically higher-paid jobs within a town or city with lower-paid jobs often outside the tax boundaries.
  • Reduce tax revenue. Despite selling lots of merchandise, they often replace revenue rather than increasing it. Because people are paid less and the owners aren't local so that profit is spent local, money is sucked to Bentonville instead of spent in the area.
  • Burden the health-care system. Poverty wages and no health insurance guarantees offset health care costs to the local community, sucking more money away. The memo states bluntly, "Specifically, our coverage is expensive for low-income families, and Wal-Mart has a significant percentage of associates and their children on public assistance."
  • Tenure is a problem for them. They note that productivity doesn't increase with seniority and they don't like paying people more over time. This seems like a strange problem: hiring new workers incurs costs, and the longer someone works, the better they should perform on average, if not fired. Thus this "compensation" problem is a management problem.

This is sort of free-market capitalism at its worst: Because we as a country don't require health-care insurance for all employees of large companies, this allows a firm to offload its health-care burden. It's easy to argue that predatory underpricing shouldn't be regulated because the market will take care of it--and it often does--it's very hard to say that a company should force local communities to lose tax revenue and pay for health care.

This is not to say, by the way, that WalMart isn't paying anything for health care: 45 percent of their employees are covered. They spent $4.2 billion last year. Even so, a $17,500 per year job has a limit of $2,500 in out-of-pocket expenses or more, according to the Times article.

But it's another key to the broken health-care system that the increases in costs outpace inflation by a factor of three to five per year, and that this leaves more people behind instead of prompting massive reform by the affected businesses.

The Senate Dismisses Inflation's Power

By denying a Democratic move to raise the federal minimum wage from $5.15 an hour ($10,300 per year for a full-time job) to $6.25 over 18 months, the Senate Republicans have decided that on one hand, wages don't need to increase along with inflation's affect on decreasing buying power and, yet, on the other that business isn't increasing its revenues at least as fast as inflation. The most recent previous proposal by the marvelous and bilious Sen. Ted Kennedy was for a $2.15 increase (to $7.30) over 26 months, and this reduction picked up a vote.

A Republican counterproposal would have kept the $1.10 increase but required a remarkable array of horrible add-ons, such as allowing "flex-time," in which overtime one week could be made up through undertime another. These senators are pretending that people working these kinds of jobs have the easy flexibility that would allow the kind of schedules that employers would impose if no longer subject to week-based overtime rules. Jeesus.

Inflation increased 25 percent from 1997, the last increase in the federal minimum wage, to last month. Thus $6.25 would still be slightly short of inflation across that period. I live in Washington State, which requires a minimum wage of $7.35. This is still a ridiculously low wage: $15,700 per year. There are few communities in Washington in which a single person earning that wage and paying no tax on it would spend much less than one-third of their take-home on rent; in Seattle, you'd pay 75 to 100 percent of your take-home pay on rent.

Missing Piece in NOLA Left Behind Story

I've only seen this mentioned once in all of the coverage I've read of the descent to madness in New Orleans:

a) What percentage of New Orleans residents were estimated to be hard drug users before the evacuation?

b) What percentage afterwards?

People keep writing about a breakdown in order and so forth, and mention deteriorating mental health as one reason. The other is certainly withdrawal. There were no extra drugs in the city, and I imagine rich dealers fled along with the rest of the middle and upper class of the city.

If 100,000 people were left behind, which was the early official estimate (about 20 percent of 480,000 residents), and just 1,000 of them were drug users--thus estimating the drug usage in the city at 0.2%, laughably low for an urban town--then you have crazy people on the loose hallucinating, with the shakes, with uncontrollable behavior.

Sure, you have the looters laughing as they remove blue jeans and DVD players. Given that about 50,000 people were in two buildings (Superdome and Convention Center), and tens of thousands were in homes and businesses, who was left on the street?

Criminals knowing they could prey on others and steal. Drug addicts without access to drugs (and needing money if they could buy some). Mentally ill people who couldn't get themselves to shelter.

Let's not draw a lesson about society breaking down from this.

Take any city you live in. Pick an area bounded by the old town, the sports stadiums, the convention center, and a dangerous district with high crime and low income. These are often in a direct line or a square or triangle. Now picture everyone with money and cars having left town. Who would be left in your city? The desperately poor, the ill; the deranged, the street people, the criminals; the drug addicts.

The poor and the ill were abandoned in New Orleans. The other groups were lumped in regardless of degree of intent, risk, and sanity.

Society exists in part to protect people who can't protect themselves and in part to protect the majority of society that wants to live in peace from the smaller part of society that is incapable of doing anything but tearing it apart.

Someone Also Thought of Norquist

I had this thought this morning that the architect of smaller government (which hasn't happened under Bush) has always talked about shrinking government to the size where it can be drowned in a bathtub.

I wonder what he would have been saying about drowning and bathtubs had he been on a roof in New Orleans for this last week wondering why the money and organization that would have allowed him to be rescued had disappeared?

Norquist et al. haven't shrunk government one bit. They've reduced taxes on the wealthy while tacitly not criticizing the massive growth in non-entitlement spending on military and homeland security that has, apparently, resulted in zero additional preparedness and zero additional international terrorist attacks.

No modern Republican president has shrunk government while shrinking deficits. Only one Democrat has.

See Daily Kos for a good image and comments.


There's nothing I can say about the hurricane or the government's response that hasn't been said elsewhere.

My only hope is that the callousness of the Bushies and the inadequate, terrible, unsympathetic response on their part will finally alert the red states to understand that these millionaires and power-hungry zealots don't care a rat's ass for them.

Where will the money come from rebuilding? From the blue states, as it has for the south many times before. Where will the private donations come from? In largest portion from the blue states.

When will someone stand up Rodney King like and say, "Can't we all just get along?"