Freedom of speech has been in the news a lot lately, with the reboot of Roseanne getting canceled after some controversial tweets from the star. Soon after, Samantha Bee was apologizing for profanely insulting Ivanka Trump and conservatives were questioning why Bill Maher and Keith Olbermann haven’t been punished for what they see as similar offenses. All of this comes less than a week after the NFL passed a new rule penalizing any on-field protests during the national anthem and in an environment of rising concern over free speech on college campuses.

As a result, I’ve seen a lot of discussion and debate about the 1st Amendment and Freedom of Speech. I’ve also seen a lot of miscommunication and confusion arise as well, oftentimes over the same points. It occurred to me that free speech, unlike many other political topics, is unique in terms of the amount of nuance and shades of grey involved. It can be an especially difficult discussion for people like myself who are generally in favor of open dialog and against government regulation of speech, but supportive of the free market enforcing penalties for what can be considered offensive or bad speech.

So let’s try to clear things up.

Congress Shall Make No Law

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Let’s start off with a clarification that might be obvious to some, but I still see a lot of confusion about. The 1st Amendment (seen above) is often quoted in free speech debates, but it’s important to note that the 1st Amendment only applies to the government. ABC firing Roseanne Barr or the NFL penalizing protests might be a freedom of speech issue, but it isn’t a 1st Amendment issue because ABC and the NFL are private organizations and not the government. It might seem like semantics, but when dealing with thorny and nuanced topics, every bit of accuracy counts.

Shouting Fire in a Crowded Theater

An oft-quoted phrase used as an example of government restrictions on free speech is: “You can’t shout ‘fire’ in a crowded theater.” Besides usually being misquoted (the original phrase was about falsely shouting ‘fire’ in a crowded theater), I wonder how many people who use the phrase know that it was originally used to justify jailing somebody for distributing fliers during World War 1 urging peaceful resistance to the draft. In fact, despite it coming from a unanimous Supreme Court decision, it seems like a precedent that was quickly scaled back:

Almost 100 years ago, Supreme Court Justice Oliver Wendel Holmes, Jr. coined a version of this now-familiar metaphor. Holmes used it to explain why the Supreme Court was upholding the criminal conviction of Charles Shenck, who was jailed merely for distributing materials urging peaceful resistance to the draft in World War I. Fortunately, the Supreme Court — often led by Holmes himself — retreated from this terrible precedent, eventually ruling that speech can’t be punished as “incitement” unless it is intended and likely to provoke imminent lawless action. In other words, this favorite rhetorical apologia for censorship was used in the course of a decision now universally recognized as bad law.

–Actually, hate speech is protected speech by Ken White

Is Hate Speech Free Speech?

Another point of confusion that I see come up often is hate speech. While there are a myriad of hate speech laws in Europe and other countries, in the United States hate speech is generally still counted as protected speech by the government.

There is no general 1st Amendment exception allowing the government to punish “hate speech” that denigrates people based on their identity. Things we call “hate speech” might occasionally fall into an existing 1st Amendment exception: a racist speech might seek to incite imminent violence against a group, or might be reasonably interpreted as an immediate threat to do harm. But “hate speech,” like other ugly types of speech we despise, is broadly protected.

–Actually, hate speech is protected speech by Ken White

Freedom of Speech, Not Freedom From Consequences

This is where things get far murkier. Just because certain speech is protected from government restriction, it doesn’t mean there aren’t consequences for speech. As mentioned before, it wasn’t the government that fired Roseanne or threatened penalties on kneeling NFL players, it was private organizations. In these situations, the legality is fairly clear. ABC was perfectly within its rights to fire Roseanne. Her tweets had done harm to their brand and she has no right to a job with ABC1A job with a private company is considered a “privilege” as opposed to a “right.”. Likewise, the NFL is perfectly within its rights to punish any players who kneel during the anthem. It was perfectly legal for Google to fire James Damore. At the same time, TBS is perfectly within its rights to continue employing Samantha Bee, much like ESPN was perfectly within its rights to continue employing Jemele Hill after her controversial tweets that got her suspended. These are all calls that the individual companies have to make on a case-by-case basis.

But it’s not enough to say that companies are legally allowed to punish (or not) their employees for speech that they deem unacceptable. The question is if it’s the right thing to do? A comedian’s job is to make people laugh, and that can often mean pushing the limits of polite speech and making people uncomfortable. Will the world be a better place with safety-pin comedy that is afraid to be edgy? Not everything can be fair game in comedy, though, can it?

What about the difference between what is said on the job versus off the job? Should Samantha Bee, speaking to a national audience on her TBS show, be held more responsible for her remarks than Roseanne was for her personal tweets? What about when the “speech” in question isn’t even public. Brendan Eich was the CEO of Mozilla when it was revealed that he had donated money to a California proposition which banned same-sex marriage in California. While Eich stepped down and was not fired, his resignation was undoubtedly due to public pressure over a political stance he had taken but wasn’t even public about.

I don’t have good answers to the above questions, and I suspect if you ask 100 people you would get 100 different answers. In general, I tend to always want to err on the side of free speech and let the market work. Nobody is being forced to watch Samantha Bee’s show or follow Roseanne on Twitter. Let both shows keep running and if people are offended by either and the ratings drop, then you have a an excellent reason to cancel the show. If an employee is loudly expressing political opinions in the office that are making others uncomfortable, maybe ask them to tone it down. If the opinions are being voiced outside of the office, or on social media, or in the privacy of the voting booth, is it really harming anybody? The idea that employers can and should be firing employees for no other reason than privately held political beliefs is an idea that disturbs my free speech loving soul, even if I admit that they have the right to do so. Because as I’ve mentioned many times before, just because they have the right to do so, it doesn’t mean we have to like it.

The Golden(ish) Rule

One final plea. Jon Stewart recently came to the defense of Samantha Bee, his former coworker. One quote of his really stood out. He said, “Please understand that a lot of what the right does, and it’s maybe their greatest genius, is they’ve created a code of conduct that they police, that they themselves don’t have to, in any way, abide.” There’s no doubt a lot of truth to that. Donald Trump, the de facto leader of the Republican Party, has his own extensive history of verbally bullying people and no excuse of being a comedian to fall back on. What I thought that Jon Stewart missed with his statement, though, is that it could just as easily be applied to the left as well. If late night comedians were even half as brutal in their jokes with Obama (or Hillary Clinton) as they have been with Trump, Democrats would be all over the outrage train 24/7. Likewise, any sort of questionable comments made by democratic politicians or about conservatives tend to be minimized.

Here’s a thought: Instead of trying to win the outrage one-upsmanship game, why don’t both sides try something else? The golden rule says, “do unto others as you would have them do unto you”. I suggest a slight modification of the rule: “If you don’t want somebody speaking about you or your friends a certain way, don’t speak about others in a similar way”. Michelle Obama was lauded for her speech when she said, “When they go low, we go high”. Unfortunately, it seems like precious few public figures have heeded her advice. Instead, it feels like, “When they go low, hold my beer“. With free speech comes great responsibility, and it seems like more and more people are demanding the freedom to speak their mind but don’t want to deal with the consequences that follow.

I was recently reading an article about how two minutes of listening beats two minutes of hate. It was about the power of both truly listening to what the other side had to say and also speaking to the other side in a respectful manner. It’s a very relevant story in our current political climate.

Tolerance is a word that get used a great deal these days, but the exercise of it seems in short supply. Scott Alexander, who blogs at Slate Star Codex, has a superb meditation on this titled, “I Can Tolerate Anything Except the Outgroup.” Tolerance as it is spoken of today is often not real tolerance at all, he notes. If you are, for example, a liberal Democrat who abhors homophobia, then you get no tolerance points for approving of gay marriage; the fact that you approve of it means it requires no putting-up-with in the first place. But what about Christian fundamentalists?

–Two minutes of listening beats two minutes of hate by A. Barton Hinkle

For anybody who has the time, I would also suggest reading the blog post referred to above. I found it to be a thought-provoking piece on the virtues of tolerance and how we treat our outgroups. Regardless, as I mentioned at the top, free speech is messy. It’s not just for the speech that we can tolerate. In fact, in some ways it’s the speech that we find difficult to tolerate that most needs free speech protections. As the famous (probably misattributed) Voltiare quote goes, “I disapprove of what you say, but I will defend to the death your right to say it”.

I wonder what Voltaire would’ve thought of what Roseanne and Samantha Bee had to say.