Will we trade our freedom for civility?

Monday, September 27, 1999

(Editor's note: This is the text of a lecture titled “Shouting Fire in a Crowded Democracy: Is Some Speech Too Incendiary for First Amendment Protection?” It was delivered by Paul McMasters last week as part of the Bill of Rights lecture series sponsored by the Montpelier Foundation and the Virginia Foundation for Humanities and Public Affairs.)

The United States Senate Rules Committee has been debating whether to create a special committee, task force or commission on American culture. The sponsors of the proposal want to inquire into whether Hollywood entertainment is creating a violent and profane culture that threatens the morality of America's youth.

This is the most recent in a series of congressional initiatives to curb perceived excesses in the entertainment media and a general coarsening of public life. Some of those other initiatives:

  • The Federal Trade Commission has issued subpoenas to movie and record producers in an investigation into whether they are violating their own voluntary ratings system in marketing to young people.
  • The U.S. Surgeon General has been directed by President Clinton to inquire into the effects of popular entertainment on young people.
  • Congress is considering the creation of a national commission on youth violence that would look into popular culture's impact on the behavior of teen-agers; other proposals would create a standard rating system for all media.

There are similar stirrings across the nation.

State legislatures have taken up literally hundreds of bills that would regulate the Internet, movie theaters, video stores, computer games, records and CDs, concerts, books, magazines and comics, what children wear to school. The targets are sex, violence, hate speech, music lyrics, mayhem, incivility and a variety of other expressive activities that employ words, images, and ideas.

This activity in the state and federal legislatures reflects the deep concerns of millions of citizens who believe our culture is too cluttered with negative influences. Just a few examples:

  • A group that calls itself Morality in Media launched a national campaign this summer against racy magazines such as Cosmopolitan, Redbook, Marie Claire and Glamour near checkout counters in stores.
  • A number of groups are pushing for the posting of the Ten Commandments in schools and other public places.
  • In hundreds of communities, there are battles over prayer in schools and at graduation and athletic events as well as over whether creationism should be taught in public schools.
  • Other groups and individuals are worried about the messages their children are getting from toys, such as Teletubbies, Barbie dolls and the Pokemon paraphernalia.

There is a long list of such examples, which seem to prove a rather widespread preoccupation with public order and personal morality driven by a popular estrangement from First Amendment traditions.

Usually the target in these citizen campaigns is speech that is considered offensive and threatening. Falsely shouting fire in a crowded theater was the compelling illustration Justice Oliver Wendell Holmes used in Schenck v. United States (1920) as a classic example of speech that was unprotected because it could provoke dangerous and injurious action.

So, what is causing all the current turmoil over expressive activities that some consider dangerously provocative?

Is it because there is more offensive and threatening speech today than there used to be? Or are we more easily offended or frightened than we used to be? Or is it a little of both?

What is the significance of this activity? Are we just in a temporary panic that will eventually subside? Or are we contemplating profound changes in the way we live as individuals and as a society?

When Americans are asked in national surveys which freedom they most value, the overwhelming majority says freedom of speech. Which raises the question of why have these proposals to limit freedom of speech gained so much currency?

Have Americans come to the conclusion that they have too much freedom?
Whatever the answers, the questions go right to our constitutional core, which is the Bill of Rights in general and the First Amendment in particular, since it is arguably the amendment that secures the life of the other nine.

The Bill of Rights is the 10 amendments imposed as a condition on the ratification of the Constitution. The states and anti-federalists wanted to guarantee fundamental freedoms for individual citizens to protect them from the power of government, the will of the majority, or the passion of the moment.

So, the Constitution lays out what the government can do and the Bill of Rights lays out what the government cannot do.

In other words, the Constitution defines us as a nation. The Bill of Rights defines us a people.

As we have seen, however, those definitions are under active review today.
Two aspects of that review seem to most significantly challenge Americans' commitment to the rights and values embodied in the First Amendment.

That is the current effort to amend the Constitution to limit the scope of the First Amendment and a few unresolved court cases that could accomplish judicially what the amendment seeks to do legislatively.

The amendment effort is the Flag Desecration Amendment, which seeks to overturn two Supreme Court decisions that have held that flag-burning is symbolic speech protected by the First Amendment, Texas v. Johnson in 1989 and United States v. Eichman in 1990.

Most Americans agree that burning the flag is about as incendiary as speech can get. It is a form of political dissent that disgusts and provokes the vast majority. Eight of 10 would endorse a law against it. Except that the First Amendment prevents that, as both the Johnson and Eichman decisions held.

That is why a huge coalition of Americans has spent millions in recent years to lobby Congress for the passage of a constitutional amendment that would prohibit desecration of the flag. Three times, that proposal has easily gained the two-thirds majority in the House. But it has fallen two or three votes short in the Senate.

The amendment proposal is before Congress again this term and already has passed in the House. No one knows whether it will gain the necessary margin in the Senate, but again it will be close. If it does pass Congress, it goes directly to the states, where ratification is assured since 49 of the 50 state legislatures already have endorsed it.

If that should happen, the First Amendment would be something other than it is now.

A number of cases now working their way through the judicial system could result in a similar evisceration of the First Amendment's protection for extreme or incendiary speech. These cases include:

  • Byers v. Edmondson, et al.: In this case, the family of a young woman shot by a young couple claims that the Oliver Stone movie “Natural Born Killers” influenced the killers. The Louisiana Supreme Court rejected a motion for dismissal and the case is expected to go to trial sometime next year.
  • Amedure v. Telepictures Productions et al.: In May of this year, a Michigan jury awarded the family of Scott Amedure $25 million. The young man was killed after the taping of a Jenny Jones Show episode during which he revealed he had a crush on Jonathan Schmitz, later convicted of the slaying. The family claimed in the suit against the show that the producers were negligent.
  • Planned Parenthood v. American Coalition of Life Activists: Earlier this year, a Portland, Ore., jury ruled that an Internet Web site known as The Nuremberg Files was liable for $110,000 in damages because the virulently anti-abortion speech on the site constituted a threat to abortion providers.
  • James, et al. v. Meow Media Inc., et al.: On April 12, parents of three students killed at Heath High School in Paducah, Ky., filed a $130 million lawsuit against Internet sites, computer-game companies and the makers and distributors of the 1995 movie “The Basketball Diaries.” They claim that these media influenced freshman Michael Carneal, who was convicted of killing the three students and wounding five others.

These cases demonstrate that no medium is immune from such suits. They target movies, television, the Internet, and video games. More importantly, if successful, they would substantively reduce the scope of First Amendment protection by expanding the definitions of such legal concepts as incitement, threat, intent, negligence, reasonable person and foresight.

At the heart of lawsuits challenging incendiary speech is the idea that violence in the media causes violence in people or on the street. That has not been proved, of course, because studies that indicate a link between viewing violence and doing violence turn out to be quite qualified in both their methodology and their conclusions.

There are significant hurdles to demonstrating that media violence can provoke actual violence, among them: Children form basic values at a very young age based primarily on family influence and early environment. There is no way to safely predict whether a given stimulus, violent or nonviolent, will provoke positive, negative or no conduct, given the vagaries of human personalities.

But even if studies were to demonstrate a causal link between violence in the media and violence in a small portion of the populace, the question arises: Would that be sufficient incentive to reduce all expression to that which wouldn't influence a six-year-old or incite a sociopath?

Finally, these cases share with the Flag Desecration Amendment the idea that some speech is just too hot to handle. That it is like shouting fire in a crowded theater. That it is too dangerous and provocative.

The visceral response to such speech, of course, is to prevent it, or failing that, to punish it until it stops. We would do that in the name of good social order, cleaning up the culture, silencing speech that offends or threatens some citizens.

What have the courts said so far? Generally, that fighting words, incitement and threats are not always protected by the First Amendment. But the exceptions for the most part have been carefully defined and narrowly construed. For example, there have been a number of suits against motion pictures for copycat crimes in the last 15 years; none has been upheld by the courts.

Even so, when movie producers and others are forced to expend large sums to defend themselves, protected speech is both punished and chilled.

Where does the campaign against incendiary speech take us?

If we approve and ratify the Flag Desecration Amendment, then we must face two others waiting in the wings: the Religious Liberty Amendment and the campaign finance reform amendment.

If the court cases reviewed here are successful, they could generate a blizzard of litigation. Under those circumstances, is any creative work safe?

Remember, Timothy McVeigh was supposed to have used the racist novel The Turner Diaries as a blueprint for the Oklahoma City bombing. Theordore Kaczynski, the so-called Unabomber, was supposed to have been inspired by Joseph Conrad novels. Mark Chapman, the man who killed John Lennon, was supposed to have been motivated by J.D. Salinger's writings. Comic books and rock 'n' roll reportedly drove the murderous rampage of Charles Starkweather.

If these cases survive, they take root in constitutional jurisprudence and lie in wait for yet another act of expression that someone mistakes for an incitement to violence.

The idea that we can blame books, movies and other media for crime turns the courtroom search for justice into a search for blame and deep pockets. In such an environment, what people read or watch or listen to becomes not an act of enlightenment or entertainment but a call to commit violence. What is in the mind of the creator of such works becomes synonymous with what is in the heart of the killer.

All of this presents an enormous challenge: Can the First Amendment, which has served us so well for more than 200 years, survive in its present form? It is not beyond possibility that deterioration of our First Amendment sensibility and hypersensitivity to the speech of others will create an anti-speech virus that worms its way to our constitutional heart.
Can we rise to such challenges or do we let them lead us into a new millennium where we'll be less free but more comfortable?

There are a series of ironies in these conundrums:

  • That a First Amendment that has served us so well for two centuries will come to be considered something that Americans can get along without.
  • That in so vigorously asserting their “right” not to be offended or frightened, Americans will undermine their right to speak their minds and hold strong opinions.
  • That in equating extreme speech as something harmful like guns, tobacco and pollution, Americans will forget that unlike the human body the human mind can be improved by negative influence.

When it comes to speech, even the odious can inform and energize and provoke a positive response. But a significant number of Americans seem to have reached a point where they are quite ready to trade their freedom for a little more civility and security.

Down that road lies cultural homogeneity, social and intellectual stagnation, and the possibility that we will be not only living with the tyranny of the majority but the tyranny of the aggrieved, also.

Thank you.

Paul McMasters may be contacted at pmcmasters@freedomforum.org.