Free Speech

I made this flowchart for people to easily be able to tell if their right to free speech has been violated.

I enjoy flowchart humor. Seriously though, there seems to be a decent amount of misunderstanding as to what the Bill of Rights actually is protecting when it comes to speech. Let’s review the First Amendment.

“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.”

The First Amendment covers several important topics, and it has been interpreted by courts many times. The point here is that it only prohibits the government from making it illegal to express your views as long as you are doing so peacefully. It doesn’t require anyone else to do anything. I briefly touched on this concept in one of my earlier posts, but a few recent events have prompted me to address the topic more thoroughly.

The first situation I’m going to discuss is the NFL protesters that started with Colin Kaepernick. Full disclosure, I know very little about sports. I know what you are thinking, “A Dungeons & Dragons playing computer programmer not know much about sports? Hogwash.” Well, it’s true; I don’t follow sports. Fortunately, this topic doesn’t require much knowledge of the rules of the game or player statistics to make sense out of it.

This all started last year when the San Francisco 49er’s quarterback chose to kneel during the National Anthem. When asked about his actions he explained, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” Afterwards, there was the typical support from those that agreed with his message, and the expected opposition from nationalists. Then, when the next season came around, Mr. Kaepernick found himself without a job.

It is pretty obvious that the fact that he did not get signed to a team this year was because of his pre-game protests during the previous season. Sports are largely about statistics, and his situation was a far outlier. When the general public became aware of the blacklisting there was a lot of talk about his right to free speech. Let me be clear, the NFL did not violate his right to free speech. They have no legal obligation to sign him and, as long as they are not discriminating against a protected class, can choose to not sign him for any reason. As an entertainer he is particularly vulnerable to the fickle will of popularity.

I think, however, there are a few things we can deduce from this situation. The first is that the average NFL fan cares more about paying tribute to an idol in the faux spirit of patriotism then they do the freedoms that their country and constitution are supposed to represent. Or, at least, the NFL thinks that they do. Also, the NFL cares more about making money than they do about the welfare of their athletes. Those conclusions probably don’t come as much of a surprise to many of you.

More recently, the plot thickens. Provoked by President Trump, in an obvious attempt to distract the public, many more athletes have sided with Mr. Kaepernick and refused to stand during the National Anthem. Even some owners have stood by their players while they protest peacefully. Only time will tell how all of this will all play out. The more players that join the protest the more challenging the situation will get. Without players, the NFL’s goal of making money and the fans goals watching games will become increasingly more difficult.

Perhaps, we’ll come to find out that NFL fans have more tolerance and nuance than the NFL originally accredited to them. I imagine quite a few of them simply want their entertainment to remain far removed from the unpleasant realities of the world. Ultimately, the NFL is out to make a profit and this will all come down to fan reactions. I hope that the fans will surprise everyone and continue to support the game they enjoy and the players who make it possible even if some of them have to hear or see something they don’t like. I sort of doubt it though.

Personally, not only do I support Mr. Kaepernick’s right to express himself, but I also agree with his position on minority oppression and injustice in law enforcement. It is easy to accept a fellow citizen’s speech when you are in agreement with them. It takes a little more acumen to tolerate a point of view that one disagrees with.

The next free speech incident I’ll be discussing began with the memo written by software engineer James Damore. The memo entitled “Google’s Ideological Echo Chamber” was posted to Google’s own internal message board back in July. It suggested that the lack of representation of women in tech, particularly software development, may be partially due to biological differences between men and women. Shortly after its internal release the memo was leaked publicly. Mr. Damore was fired from Google the following month as a result of the negative public reaction.

I went ahead and read the full memo and a bit more that was released afterward as a response to the criticism. I’m not going to get into the content of the piece very much, but I will a little. I think Mr. Damore is heading towards the wrong conclusions with the science. At best some studies suggest minor differences between the sexes that could account for a very small gap in representation. That said, I think the backlash against the memo was heavily exaggerated. Mr. Damore appears to be far from an unreasonable ideologue. He was very clear that he valued diversity and was opposed to discrimination. His claim was mostly that every potential factor in workplace inequality should be studied honestly. I think he is right that ignoring some factors just because they make some people uncomfortable is wrong.

Regardless of what Mr. Damore is right or wrong about this has nothing to do with the First Amendment. Google has in no way violated Mr. Damore’s right to free speech by firing him, because the First Amendment only applies to congress making laws. What is interesting, and ironic, about this situation is that Mr. Damore is suing Google over his termination and does have a legal case for other reasons.

The National Labor Relations Act of 1935 was put in place to help protect workers trying to unionize. It protects workers from retaliation from their employer for bringing up concerns about workplace conditions. Like a lot of legal situations this one comes down to intent. The question is this. Was Mr. Damore trying to improve workplace conditions for himself and fellow employees by pointing out unfair policies? Or, was he simply creating a hostile work environment by distributing a document that was perceived to be discriminating against his fellow employees based on sex? After reading the memo I think it looks like his case has a pretty good chance here.

The third, and last, event I will be discussing as it relates to free speech is the Unite the Right rally held back in August in Charlottesville, Virginia. The main stated purpose of the rally was to protest the removal of confederate monuments. Among other affiliations, the crowd included neo-Nazis and neo-Confederates. First of all, let me say this. The Nazis were arguably the United States’ greatest enemy ever. They were committing genocide while attempting world domination under an oppressive and tyrannical regime before the United States and allied forces forcibly stopped them. Furthermore, the Confederacy, by seceding from the Union, literally sought the destruction of the United States. Somehow these protesters present themselves as patriotic Americans while waving the flags of our enemies. I don’t see how anyone can view this as anything other than ignorant hypocrisy.

Getting back on topic, free speech means that even ignorant, bigoted hypocrites can legally speak their mind. They can also peaceably assemble. They key word here being “peaceably”. Many of these protesters carried melee weapons, torches and even firearms. By the end of the protest, 1 person was murdered and 19 others injured when a member of the protest rammed his car into a group of counter-protesters. That doesn’t sound very peaceful to me.

Prior to the event the City of Charlottesville attempted to relocate the organized protest from Emancipation Park to the larger Mcintire Park. The city claimed that they were concerned about safety with such a large, divisive assembly in such a small location in the downtown district. With the help of the ACLU the organizer sued the city citing their right to free speech and a court injunction allowed the event to continue. Nowadays, conservatives tend to view the ACLU as an organization with a liberal agenda. I don’t think that is true. I believe they have a civil liberties agenda. It is just that conservative positions violate the civil liberties of others more often than liberal ones. I think the ACLU, at least partly, chose to take this case in an attempt to demonstrate their non-partisanship.

The event was then executed at its planned time and place. It obviously turned violent which means that it was not constitutionally protected speech after all. Of course, it is said that hindsight is 20/20. How can we better proactively ensure that protests remain peaceful? I think the ACLU took a good step in that direction. After a bit of blowback regarding their legal representation of the organizer, the ACLU updated their own policy. They will no longer represent groups that insist on carrying loaded firearms during their protest. While it’s not perfect, I think the presence of deadly weapons is a good indicator as to whether or not the protest is constitutionally protected, peaceful speech.

Free speech does not mean that one can say or do anything without consequence while expressing their beliefs. The first amendment’s protection of free speech is limited. It only means that it cannot be illegal to peaceably express your beliefs. It does not mean that each belief is just as valuable or relevant as every other belief. It does not mean that anyone has to like or support what you have to say. It does not mean that others cannot disassociate themselves with you or oppose you because of your speech. Individual rights become murky quickly when we are all cohabitating in society together, but peaceful opposition to speech is simply the opposition exercising their own right to free speech.