Sometimes, there really is a fire

Whenever a free-speech controversy bubbles up, you can always count on apologists for censorship to declare that “there’s no right to shout fire in a crowded theatre.”

Ken at Popehat, in an absolutely devastating post, explains where that phrase comes from, and it’s not pretty:

In her Los Angeles Times opinion piece justifying prosecution of the author of the “Innocence of Muslims” video on YouTube, Sarah Chayes opens exactly the way I’ve come to expect:

“In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. ‘The most stringent protection,’ he wrote on behalf of a unanimous court, ‘would not protect a man in falsely shouting fire in a theater and causing a panic.'”

Holmes’ famous quote is the go-to argument by appeal to authority for anyone who wants to suggest that some particular utterance is not protected by the First Amendment. Its relentless overuse is annoying and unpersuasive to most people concerned with the actual history and progress of free speech jurisprudence. People tend to cite the “fire in a crowded theater” quote for two reasons, both bolstered by Holmes’ fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying “well, some speech is protected by the First Amendment” is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment. This is dishonest at worst and unconvincing at best. If you have a pertinent case showing that particular speech falls outside the First Amendment, you don’t have to rely on a 90-year-old rhetorical flourish to support your argument.

After Holmes’ opinions in the Schenck trilogy, the law of the United States was this: you could be convicted and sentenced to prison under the Espionage Act if you criticized the war, or conscription, in a way that “obstructed” conscription, which might mean as little as convincing people to write and march and petition against it. This is the context of the “fire in a theater” quote that people so love to brandish to justify censorship.

Sarah Chayes’ L.A. Times column demonstrates how Holmes’ rhetorical dodges can be employed in support of unprincipled and broad calls for censorship. Holmes blurred the line between what the government should be able to prevent (speakers urging listeners to imminent lawbreaking, like riots) and what it would merely like to prevent (loss of support for the war). Similarly, Chayes and her ilk blur the line between what the government should be able to prevent (speech intended to incite, and likely to incite, people to imminent lawbreaking), what it would like to prevent (violence by mobs, whether actually motivated by insulting videos or whether manipulated by forces using those videos) and what it should not be able to prevent (expressions of opinion which might offend someone and be used as an excuse for violence). Holmes accepted you shouldn’t be permitted to make the populace doubt the war efforts in wartime; Chayes and her ilk accept you shouldn’t be able to say things that can be used by distant mobs as justifications for rioting.

I suspect many of the people who want “Innocence of Muslims” banned marched enthusiastically against the wars in Iraq or Afghanistan. Whether they’re ignorant of what Justice Holmes meant or whether they’ve rationalized it somehow, only God knows.

“On this site in 1989, nothing happened”

China, the colossus that’s on the verge of becoming the most powerful country the world has ever known, the industrial powerhouse star-struck useful idiots like Tom Friedman say we must emulate, is terrified of a few digits:

Each year, the Communist Party’s censors go to remarkable lengths to prevent Chinese citizens from accessing, or spreading, their memories of what happened on June 4, 1989, when an unknown number of people were killed during a military crackdown on pro-democracy protests in the centre of Beijing. Since Sunday night, even simple numbers like 6 (the month of June), 4 (the date) and 89 have been banned search terms on Chinese social-networking sites.

And so all day today users in China got bizarre replies from their search engines. “According to the relevant laws and policies, the results of your search ‘89’ cannot be displayed,” was the head-shaker I just read on my own screen. Typing “Tiananmen Square” – in English or Chinese – gets the same answer on the popular Sina Weibo site, which boasts over 300 million users. Pity the poor tourist just trying to find the plaza in the middle of the Chinese capital.

Such farces would only multiply throughout Monday’s anniversary. As the day went on, even the stock market news – as well as the online memorial for the Chinese student who was murdered in Montreal – were caught in the censors’ ever-widening nets.

Eventually even “jintian” – the Chinese word for “today” – was a banned search term on such social networking sites, as the powers and weaknesses of those who rule China were simultaneously displayed.

[…]

The censors subsequently decided that even some non-words pose a threat, disabling a function on Sina Weibo that allowed users to post a tiny drawing (or “emoticon”) of a candle. Activist Hu Jia was arrested in 2004 after telling reporters he planned to go to Tiananmen Square and light a candle on the 15th anniversary of the crackdown. As of Sunday night, even lighting a virtual candle was impossible.

“How About Defending Speech Because It’s Speech, Not Because You Agree With It?”

I want to print this post from Popehat, frame it and mount it on my wall.

…Say that someone sues, or threatens, or abuses someone whose ideas you despise, someone whose good faith you doubt, someone working for political or social ends you are struggling against. If that censor is successful in any measure, are you harmed? Yes. You are harmed because the next censor, the one gunning for you or someone you agree with — is emboldened. You are harmed because people, in general, are deterred from discussing controversial ideas. You are harmed because when censors are successful, censorship increasingly becomes the norm, and the populace’s already tenuous support of principles of free expression ebb a little more.

Two related stories

Canada:

A Nova Scotia teenager who made international headlines for getting suspended from school after wearing a T-shirt with a Christian message didn’t attend classes on Monday and may be leaving the school for good.

William Swinimer, a Grade 12 student at Forest Heights Community School in Chester Basin, N.S., was suspended last Monday after repeatedly wearing to class a bright yellow T-shirt with the slogan “Life is wasted without Jesus” despite a request from the principal not to.

On Friday, the suspension was reversed and he was expected to resume classes on Monday, wearing the shirt. The school had planned to hold a special talk about religious freedoms.

But instead, he arrived on campus early Monday morning with his father, who abruptly pulled him out of the school, saying he doesn’t want anything to do with the school’s planned discussions about the balance between religious freedom and students’ rights to not have their beliefs criticized. [emphasis added]

India:

CR 61/2012, Juhu Police Station, has been filed against miracle-buster Sanal Edamaruku, who is also founder-president of the Rationalist International, which has scientists such as Richard Dawkins in it.

The FIR [apparently a First Information Report -EV] has been filed under IPC Sec 295A: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs….

The whole story began on March 5, when during a TV programme in Delhi, Sanal dismissed reports that the “dripping cross” outside Vile Parle’s Velankanni church was a miracle….

Later on March 10, Sanal attributed the water dripping from the Jesus statue to capillary action of underground water near the cross. His photographs, displayed on TV-9, showed seepage on the wall behind the cross and on the ground near its base. “I removed one of the stones covering a canal for dirty water nearby, and found that water had been blocked there. Once water is blocked, it will find an outlet, if not downwards, then upwards. Every student knows that trees get water through capillary action.” [emphasis added]

There is a right to freedom of expression, or a right to not be offended. Pick one.

“Life is Wasted Without Jesus”

If you’re a Christian, you probably think that statement is just common sense.  If you aren’t a Christian, you probably rolled your eyes and moved on.  And if you’re an administrator at Forest Heights Community School in Chester Basin, you think it’s hateful speech meriting suspension from school:

William Swinimer was suspended from the Forest Heights Community School in Chester Basin for five days on Monday, after he defied the principal’s instruction not to wear a yellow T-shirt sporting the phrase “Life is wasted without Jesus” anymore.

He’d worn the shirt to school several times before he was told two weeks ago that another student had complained. That was when he was told to leave it out of his school week wardrobe.

Swinimer says he never intended to be rude or disrespectful, but he’ll keep wearing the shirt because he stands behind its message.

“That’s my opinion, but under the Canadian Charter of Rights and Freedoms I’m allowed to have my opinion and express my opinion,” the Grade 12 student told CTV’s Canada AM on Friday.

“The only reason I’m wearing the T-shirt continually now is because I’m standing up for my rights as a Canadian citizen.”

But according to South Shore Regional School Board Supt. Nancy Pynch-Worthylake, the problem is not that the shirt sports a religious message, but that this particular message appears aimed at denigrating those who don’t agree.

“We do ask that our students are expressing their views in a way that could not be interpreted by other students as a criticism of their beliefs,” Pynch-Worthylake told CTV Atlantic on Thursday.

A good test case: let’s get a female student at Forest Heights to wear a shirt reading “Keep Your Rosaries Off My Ovaries” and see what happens.

More here and here.  If a teacher was using his position in a public school to promote his religion, I’d understand the controversy.  (There’s also some suggestion that Swinimer has been aggressive in confronting other students about his Christian beliefs, which wouldn’t necessarily merit a suspension, but could at least be said to be imposing on other students’ rights.)  But “keeping religion out of the schools” doesn’t mean students shouldn’t be allowed to express their religious beliefs.  Unless you’re in France, at least.

At least one student has gotten the message: if you see something that offends you, whine about it until it’s removed from your sight.

Grade 11 student Niall Barkes told CTV Atlantic that interpretion is within reason.

“I’m an atheist myself and I’m kind of offended because he’s basically stating that my life is wasted without Jesus, it’s just not a fair statement at all and I think the reason for him getting suspended is reasonable,” Barkes said.

I believed a lot of obnoxious, self-righteous things when I was your age, too, Mr. Barkes.

The crazy case of Crystal Cox

Forbes on a disgusting case of internet extortion:

Crystal Cox, a Montana woman who calls herself an “investigative journalist” was slapped with a $2.5-million judgment last year for defaming an investment firm and one of its lead partners. Cox had taken control of the Google footprint of Obsidian Finance and its principal Kevin Padrick by writing hundreds of posts about them on dozens of websites she owned, inter-linking them in ways that made them rise up in Google search results; it ruined Obsidian’s business due to prospective clients being put off by the firm’s seemingly terrible online reputation. After Obsidian sued Cox, she contacted them offering her “reputation services;” for $2,500 a month, she could “fix” the firm’s reputation and help promote its business. (In some circles, we call that  ”extortion.”)

Nonetheless, when the outrageously high judgment came down, some bloggers rushed to Cox’s defense, in great part because the judge declared Cox not to be a member of the media in a poorly-written opinion that some interpreted to mean that bloggers generally couldn’t claim legal protections for members of the press. So First Amendment-loving lawyers, including Eugene Volokh of the Volokh Conspiracy and Matthew Zimmerman at the Electronic Frontier Foundation, offered Cox their services in appealing the case and attempting to get a new trial. (They were denied this week, with the judge clarifying that bloggers can be journalists, but that Cox is a serial harasser, not a journalist.) Another lawyer, Marc Randazza had also spoken with Cox about her case; after deciding not to work with him, Cox sent him an email letting him know that she “needed to make money” and was willing to offer him her reputation management services. In fact, she had already bought his domain name — marcrandazza.com. …

[…]

She bought the domain name for Marc’s wife, Jennifer Randazza (and has already started dominating her first page of Google results with her hyperbolic posts). When Randazza still wouldn’t buy her services, Cox moved on to a younger member of the family:

“When this didn’t get the desired response, Cox turned to a place where even the lowest of the low would not stoop — she focused her stalkerish attention on my three-year-old daughter and registered NataliaRandazza.com.” [emphasis added]

Via Ken at Popehat, who has been all over this story.  Randazza’s blog is here.

Is there really a bullying epidemic?

Reason‘s Nick Gillespie, writing in The Wall Street Journal, is skeptical:

But is America really in the midst of a “bullying crisis,” as so many now claim? I don’t see it. I also suspect that our fears about the ubiquity of bullying are just the latest in a long line of well-intentioned yet hyperbolic alarms about how awful it is to be a kid today.

I have no interest in defending the bullies who dominate sandboxes, extort lunch money and use Twitter to taunt their classmates. But there is no growing crisis. Childhood and adolescence in America have never been less brutal. Even as the country’s overprotective parents whip themselves up into a moral panic about kid-on-kid cruelty, the numbers don’t point to any explosion of abuse. As for the rising wave of laws and regulations designed to combat meanness among students, they are likely to lump together minor slights with major offenses. The antibullying movement is already conflating serious cases of gay-bashing and vicious harassment with things like…a kid named Cheese having a tough time in grade school.

How did we get here? We live in an age of helicopter parents so pushy and overbearing that Colorado Springs banned its annual Easter-egg hunt on account of adults jumping the starter’s gun and scooping up treat-filled plastic eggs on behalf of their winsome kids. The Department of Education in New York City—once known as the town too tough for Al Capone—is seeking to ban such words as “dinosaurs,” “Halloween” and “dancing” from citywide tests on the grounds that they could “evoke unpleasant emotions in the students,” it was reported this week. (Leave aside for the moment that perhaps the whole point of tests is to “evoke unpleasant emotions.”)

[…]

But is bullying—which the stopbullying.gov website of the Department of Health and Human Services defines as “teasing,” “name-calling,” “taunting,” “leaving someone out on purpose,” “telling other children not to be friends with someone,” “spreading rumors about someone,” “hitting/kicking/pinching,” “spitting” and “making mean or rude hand gestures”—really a growing problem in America?

Despite the rare and tragic cases that rightly command our attention and outrage, the data show that things are, in fact, getting better for kids. When it comes to school violence, the numbers are particularly encouraging. According to the National Center for Education Statistics, between 1995 and 2009, the percentage of students who reported “being afraid of attack or harm at school” declined to 4% from 12%. Over the same period, the victimization rate per 1,000 students declined fivefold.

When it comes to bullying numbers, long-term trends are less clear. The makers of “Bully” say that “over 13 million American kids will be bullied this year,” and estimates of the percentage of students who are bullied in a given year range from 20% to 70%. NCES changed the way it tabulated bullying incidents in 2005 and cautions against using earlier data. Its biennial reports find that 28% of students ages 12-18 reported being bullied in 2005; that percentage rose to 32% in 2007, before dropping back to 28% in 2009 (the most recent year for which data are available). Such numbers strongly suggest that there is no epidemic afoot (though one wonders if the new anti-bullying laws and media campaigns might lead to more reports going forward).

After my horrible experiences in high school, I should be right on board with the anti-bullying movement, but I find something deeply off-putting about it.  Maybe it’s the sight of so many of the people who made my junior-high life a living hell preaching about it on Facebook.

Or, it could be the fact that legislators across North America are further trying to limit our personal freedoms.  For the children, you know:

In their never-ending quest to make Connecticut a less annoying place, state legislators — apparently having solved unemployment, crime and school funding — have trained their sights on annoying speech.

bill introduced March 22 by the Senate Judiciary Committee — which is up for a hearing in that committee Thursday — would create the new misdemeanor criminal offense of “Electronic Harassment.” (Note to Dave Barry: “Electronic Harassment” would be an exceptional name for a band.)

A person would be guilty of the crime of “Electronic Harassment” under the following conditions: (1) Transmitting information over any electronic medium (anything from radio to the Web to texting), (2) that is based on a person’s “actual or perceived traits or characteristics,” (3) that causes a person “substantial embarrassment or humiliation within an academic or professional community,” and (4) is done with an intent to “annoy” or “alarm” the person.

Read that carefully, and think about how much First Amendment real estate it covers.

For example … how about this Al Franken column, [actually a Joe Conason column, about Franken’s controversial election to the Senate – DJP] “Rush Limbaugh is still a big fat idiot.” Transmitted electronically? Check. Based on traits or characteristics? Argue amongst yourselves whether they are “actual” or “perceived.” Causing substantial humiliation? If it is possible for Rush Limbaugh to feel humiliation, definitely. Done with an intent to annoy? Oh, at the very least.

Stay clear of Connecticut, Senator Franken — or bring your checkbook, since SB 456 carries up to a $2,000 fine, with the possibility of a year in jail.

For being annoying.

Via the great Ken at Popehat, whose posts about “cyberbullying” legislation are not to be missed.