In light of the massacre in Christchurch, New Zealand, my friend Jeremy Littau wrote about free speech:
Clearly there are a lot of good things being done with live video. I can rattle off many, from Standing Rock to police shooting accountability. But at what cost when we’re talking about inflicting trauma on audiences via the acts of terrorists? I know “at what cost?” is loaded and cliche. But it strikes me we aren’t even having the conversation about costs. It often gets brushed off as the price of free speech. But that’s dismissive and disrespectful, and it discounts the lived experiences of those who have to deal with the consequences of ideological purity.
In my Mass Media and the Law class at SUNY-Oswego, we spend a week talking about the evolution of hate speech. When is speech protected by the First Amendment, and when does it cross the line into illegal incitement. The SCOTUS precedent in this case is Brandenburg v. Ohio, in which the court ruled that speech could only be punished if was directed at inciting imminent lawless action and was likely to produce such action. (I call this this License to IIL test, because I am corny). This decision is a victory for free speech, because the type of speech can be punished is extremely limited.
But thinking on the events of the week, and our digital and social media environment, I’m left wondering how well this precedent stands.
I’m thinking primarily of the modern media environment. The 1960s, when this case was adjudicated, were the heart of the mass media age. The broadcast age. One broadcast to many people. In order to be influenced by Brandenburg’s speech as the KKK Grand Wizard, you had to actually be in the crowd or you needed to watch it on TV live as it happened. In the mass media age, ideas spread more slowly. Now, we have the technology to watch the shooter film his crime as it’s happening.
Not only that we have the cumulative effects of hearing such speech. Milo, Alex Jones, etc., aren’t promoting imminent lawless action. But their speech marginalizes already vulnerable populations and empowers attitudes that leads to violence against those populations. It feels wrong to allow the kind of speech that fueled the Christchurch massacre simply because none of it specifically promoted likely imminent lawless action.
It is very easy for me to say that we should protect all speech unless it is likely to produce imminent lawless action. I’m a straight, CIS-gendered, white Christian male. In so many ways, my privilege allows me to see these words and this speech as an intellectual exercise. But for blacks, Jews, those in the LGBTQ community, these words have real consequences. All of us, if we’re honest, are evolving in this area.
And the law, and our conceptualizations of free speech, should evolve as well.