Freedom of Speech and Consequences

 Freedom of speech (or assembly) does not mean freedom from consequences. At its most extreme, speech that is “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action” can lead to a conviction for incitement to violence (Brandenburg v. Ohio, 1969).

It goes beyond that, however. Just because I want to express myself does not mean that others are required to publish it; they may suspend my privileges on their site. If I comment on someone else’s post here, they are entitled to delete it. If I participate in a “block the steal” event, my employer may decide that I am are no longer desirable. If I publish lies about Dominion election software, I may be sued.

What we are seeing now is a number of people complaining that they are being unfairly penalized for what they are saying and doing. “That’s not fair!” is the common complaint of a teenager. It is not a legal standard.

There ARE classes of individuals who are federally protected against retaliatory actions. These are called suspect classifications. For example, the U.S. Supreme Court has recognized religion, race and national origin as suspect classes. Actions that discriminate against members of these classes are evaluated under a “strict scrutiny” test. Adherence to particular political ideologies are not included in this category.

I vaguely remember as a child that the defense to an action would sometimes be described as “I’m free, white and 21.” When we talk about “the good old days,” we tend to forget about that or are glad that those days are gone. Most of us do anyway. [Written on January 17, 2021]