Polarization and Free Speech

At RealClearPolitics, Carl Cannon reports on a new survey:

Traditionally, opposing censorship — whether imposed by government or corporations — was a bedrock principle of liberalism in this country. The American Civil Liberties Union was founded in 1920 to promote and defend free expression. And this ideal was at the heart of liberal thought, liberal lawmaking, and liberal jurisprudence during most of the 20^th century. But times change. And notwithstanding the controversial current push by social conservatives to denude public school libraries of content they dislike, the new RealClear Opinion Research poll is the latest to document the gradual change that has taken place on the left when it comes to this free expression. Here are some of its findings:

• Republican voters (74%) and independents (61%) believe speech should be legal “under any circumstances, while Democrats are almost evenly divided. A bare majority of Democrats (53%) say speech should be legal under any circumstances, while 47% say it should be legal “only under certain circumstances.”

• Nearly one-third of Democratic voters (34%) say Americans have “too much freedom.” This compared to 14.6% of Republicans. Republicans were most likely to say Americans have too little freedom (46%), while only 22% of Democrats feel that way. Independents were in the middle in both categories.

• Although majorities of Democrats, Republicans, and independents agree the news media should be able to report stories they believe are in the national interest, this consensus shifts when it comes to social media censorship. A majority of Democrats (52%) approve of the government censoring social media content under the rubric of protecting national security. Among Republicans and independents, this percentage is only one-third.

• Poll respondents were read this statement: “I disapprove of what you say, but I will defend to the death your right to say it.” Only 31% of Democratic voters “strongly agreed” with that sentiment, compared to 51% of Republicans.

• Fully three-fourths of Democrats believe government has a responsibility to limit “hateful” social media posts, while Republicans are more split, with 50% believing the government has a responsibility to restrict hateful posts. (Independents, once again, are in the middle.)

• Democrats are significantly more likely than Republicans to favor stifling the free speech rights of political extremists. Also, Republicans don’t vary by the group: Only about half of GOP voters favor censorship — whether asked about the Ku Klux Klan, Nazis, or the Communist Party.

Democgraphics of Self-Censorship on Campus

 Samuel Abrams at AEI:

A common refrain on campuses today is that students are likely to self-censor their views and ideas. Looking at the data, this is an experience shared by nearly all students and amongst almost all races.

In 2016, when students were asked about the security of their freedom of speech, almost three-quarters (73%) felt secure in their First Amendment right, according to a Knight Foundation study. In 2021, that number declined to 47%. During that time, nearly two-thirds (65%) of students felt their school stifles free expression, up from 54% in 2016.

There is a rampant culture of self-censorship. As a professor, I see this all the time in class and during campus events; students anxiously want to ask questions or make particular points but opt to say nothing instead.

Data from the Foundation for Individual Rights and Expression (FIRE)’s new study of almost 45,000 currently enrolled students at more than 200 colleges and universities around the nation provides a deeper look at how students think about self-censorship. Disturbingly, the desire to silence dissent is not only widespread, but also far too common across all racial and ethnic groups.

Some claim that speech codes and other restrictions on free expression on campus are necessary because free speech, as currently defined, effectively silences minority groups. They say as a corrective, it’s important to be far more sensitive to the harm that words can do — creating safe spaces and, in some cases, silencing controversial speakers.

But data from FIRE shows that the racial differences between how young people perceive campus climates is minimal. Fifty-six percent of Black students report that they limit what they say out of concern for reactions — a number far too high. Fifty percent of Hispanic students, 56% of Asian students, and 54% of white students report doing the exact same thing.

Self-Censorship on Campus

 Samuel Abrams at AEI:

Fire’s 2022-23 College Free Speech Rankings samples the views of almost 45,000 currently enrolled students at more than 200 American colleges and universities, the largest study of its kind to date. Like earlier iterations, it shows that conservatives are far more likely to self-censor than their liberal counterparts. For instance, when presented with the question of how often students have felt that they could not express their opinions on a subject because of how students, a professor or the administration would respond, 44 per cent of Democrats report self-censoring. This figure is notably lower than the 58 per cent of independents and 73 per cent of Republicans who do so.

However, the 2022/23 survey includes a number of new questions that offer a powerful new twist on the issue. For instance, while 53 per cent of independents and 66 per cent of Republicans feel some or more significant pressure to avoid certain topics, 43 per cent of Democratic students do so, too.

The most revealing finding emerges in response to a question about how worried students are about damaging their reputations because of a misunderstanding about something they have said or done. A significant majority of students – 63 per cent – are worried to some degree. And despite a generally liberal campus environment, fostered by progressive and woke administrators and liberal faculty who often engage in activist scholarship, there is almost no difference between how worried Democratic and Republican students are.

The 62 per cent of strong and weak Democratic Party-supporting students who report being worried about reputational damage is barely lower than the 64 per cent of those who are independents and leaners towards one party or another. For strong and weak Republicans, who already regularly self-censor at much higher rates than their Democratic counterparts, 63 per cent are worried about the social and personal consequences of their expression.

This is a remarkably unhealthy state of affairs in an educational environment that is supposed to be open, authentic and liberating. It should be no wonder that American students are anxious and that depression and other mental health issues are so prominent on campuses today.

Trevor Noah on Press Freedom

 

“Because this is America…and here, RIGHT MATTERS.” https://t.co/zm7p7hAVrP

— Rachel Vindman 🌻 (@natsechobbyist) May 1, 2022

Campus Free Speech

The Bipartisan Policy Center has a new report titled “Campus Free Expression: A New Roadmap.” From the executive summary:

• First, colleges and universities must address the perceived tension that pits academic freedom and freedom of expression against diversity, equity, and inclusion in creating a respectful learning environment for all. While not ignoring that there may be expression that is hurtful, we believe profoundly that free expression is an essential means to an inclusive campus in addition to being essential to higher education’s academic and civic missions.
• Second, colleges and universities should take steps to encourage more viewpoint diversity on campus. Exposing students to a wide range of perspectives and methods of confronting issues is essential for both a well-rounded education and as preparation for the rigors of citizenship in a diverse society.
• Third, colleges and universities should adopt strong policies for the protection of free expression for students and faculty, to forestall hasty or ad hoc responses to controversial expression, and to defend the expression of unorthodox and controversial views.
• Fourth, colleges and universities should elevate the skills and dispositions necessary to academic and civic discourse as a deliberate aim of the collegiate experience. Formal protections for free expression are necessary but insufficient to create a culture of free expression, open inquiry, and respectful, productive debate on campus and in our country. We have a national civic skills deficit, which colleges and universities have an essential role in remedying. Matriculating students typically need coaching and instruction in these skills and habits of mind, and our aim should be to graduate students who raise the bar for national discourse

Colleen Flaherty at Inside Higher Ed:

Lori S. White, president of DePauw University and a member of the task force that met for a year to write the report, said during a panel discussion Tuesday about the report's release that she recently navigated her own campus speech controversy: she said that after a professor used the N-word in a classroom context, DePauw faced calls to ban the use of the N-word on campus.

White, who is Black, responded to these calls in a campus memo at once condemning the N-word as a “despicable and hateful word that has been used throughout history to dehumanize people who look like me.” At the same time, she wrote, banning the word “raises questions as to whether books such as John Steinbeck’s ‘Of Mice and Men’ or Harper Lee’s ‘To Kill a Mockingbird,’ which I read as an English major, could still be assigned or whether a film class could watch a Dick Gregory film that I have watched many times or whether a music critique course or a student listening to music in their residence hall could listen to certain rap music artists.”

Robby Soave at Reason:

While most students think their professors adequately encourage diverse viewpoints in the classroom, don't want speakers disinvited from campus, and are comfortable sharing controversial opinions, 85 percent of liberals think professors who say something offensive should be reported to the university.

That's according to a new survey of student attitudes conducted by North Dakota State University's Sheila and Robert Challey Institute for Global Innovation and Growth. Many of the results were positive: Most students—both liberals and conservatives—said their professors create environments that allow for many different viewpoints to be shared. Large majorities also opposed the rejection of controversial speakers from campus.

In general, conservative respondents were more supportive of free speech norms—and also more fearful that they would be punished for speaking up—than liberal students. But on many questions, majorities of both groups responded the way a free speech supporter would.

Probably the most concerning result was that 70 percent of students—85 percent of liberals, 41 percent of conservatives, and 65 percent of those classified as "independent/apolitical"—wanted professors reported to the administration for making offensive statements. Most students also felt this way about other students who said offensive things.

Florida v. Academic Freedom

Many posts have discussed threats to academic freedom.

Michael Wines at NYT:

Three University of Florida professors have been barred from assisting plaintiffs in a lawsuit to overturn the state’s new law restricting voting rights, lawyers said in a federal court filing on Friday. The ban is an extraordinary limit on speech that raises questions of academic freedom and First Amendment rights.

University officials told the three that because the school was a state institution, participating in a lawsuit against the state “is adverse to U.F.’s interests” and could not be permitted. In their filing, the lawyers sought to question Gov. Ron DeSantis, a Republican, on whether he was involved in the decision.

Mr. DeSantis has resisted questioning, arguing that all of his communications about the law are protected from disclosure because discussions about legislation are privileged. In their filing on Friday, lawyers for the plaintiffs said the federal questions in the case — including whether the law discriminates against minority groups — override any state protections.

Two university representatives said they could not comment on pending litigation. Mr. DeSantis’s office did not immediately reply to a request for comment.

From the Foundation for Individual Rights in Education:

FIRE is deeply concerned by a report in The New York Times that the University of Florida has barred three professors from participating as witnesses in a voting rights lawsuit against the state of Florida.

FIRE has said it before, and we’ll say it again: The profound civic importance of fair trials requires the ability of fact and expert witnesses to come forward to testify truthfully without fear that their government employer might retaliate against them. Public university faculty are no exception. We call on UF to reverse course immediately.

UF should be aware that Plymouth State University’s ill-considered decision to punish faculty who had testified in a trial ultimately cost the state of New Hampshire’s taxpayers $350,000. FIRE warned Plymouth State then, and we’re warning UF now: If you pick a fight with the First Amendment, you will lose.

 

MIT Rejects Free Speech

 Michael Powell at NYT:

The Massachusetts Institute of Technology invited the geophysicist Dorian Abbot to give a prestigious public lecture this autumn. He seemed a natural choice, a scientific star who studies climate change and whether planets in distant solar systems might harbor atmospheres conducive to life.

 Then a swell of angry resistance arose. Some faculty members and graduate students argued that Dr. Abbot, a professor at the University of Chicago, had created harm by speaking out against aspects of affirmative action and diversity programs. In videos and opinion pieces, Dr. Abbot, who is white, has asserted that such programs treat “people as members of a group rather than as individuals, repeating the mistake that made possible the atrocities of the 20th century.” He said that he favored a diverse pool of applicants selected on merit.

 He said that his planned lecture at M.I.T. would have made no mention of his views on affirmative action. But his opponents in the sciences argued he represented an “infuriating,” “inappropriate” and oppressive choice.

 On Sept. 30, M.I.T. reversed course. The head of its earth, atmospheric and planetary sciences department called off Dr. Abbot’s lecture, to be delivered to professors, graduate students and the public, including some top Black and Latino high school students.

This quote lays out what is at stake here: “This idea of intellectual debate and rigor as the pinnacle of intellectualism comes from a world in which white men dominated.” We are confronting a fundamental attack on the idea of a university.https://t.co/xUv5vuCLI7

— Dorian Schuyler Abbot (@DorianAbbot) October 20, 2021

Democratic Decline

Sarah Repucci and Amy Slipowitz at Freedom House:

As a lethal pandemic, economic and physical insecurity, and violent conflict ravaged the world in 2020, democracy’s defenders sustained heavy new losses in their struggle against authoritarian foes, shifting the international balance in favor of tyranny. Incumbent leaders increasingly used force to crush opponents and settle scores, sometimes in the name of public health, while beleaguered activists—lacking effective international support—faced heavy jail sentences, torture, or murder in many settings.

These withering blows marked the 15th consecutive year of decline in global freedom. The countries experiencing deterioration outnumbered those with improvements by the largest margin recorded since the negative trend began in 2006. The long democratic recession is deepening.

The impact of the long-term democratic decline has become increasingly global in nature, broad enough to be felt by those living under the cruelest dictatorships, as well as by citizens of long-standing democracies. Nearly 75 percent of the world’s population lived in a country that faced deterioration last year. The ongoing decline has given rise to claims of democracy’s inherent inferiority. Proponents of this idea include official Chinese and Russian commentators seeking to strengthen their international influence while escaping accountability for abuses, as well as antidemocratic actors within democratic states who see an opportunity to consolidate power. They are both cheering the breakdown of democracy and exacerbating it, pitting themselves against the brave groups and individuals who have set out to reverse the damage.

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Self-Censorship

Emily Ekins at Cato:

A new Cato national survey finds that self‐​censorship is on the rise in the United States. Nearly two-thirds—62%—of Americans say the political climate these days prevents them from saying things they believe because others might find them offensive. The share of Americans who self‐​censor has risen several points since 2017 when 58% of Americans agreed with this statement.

These fears cross partisan lines. Majorities of Democrats (52%), independents (59%) and Republicans (77%) all agree they have political opinions they are afraid to share.

 Strong liberals stand out, however, as the only political group who feel they can express themselves. Nearly 6 in 10 (58%) of staunch liberals feel they can say what they believe. However, centrist liberals feel differently. A slim majority (52%) of liberals feel they have to self‐​censor, as do 64% of moderates, and 77% of conservatives. This demonstrates that political expression is an issue that divides the Democratic coalition between centrist Democrats and their left flank.

...
 Nearly a third (32%) of employed Americans say they personally are worried about missing out on career opportunities or losing their job if their political opinions became known. These results are particularly notable given that most personal campaign contributions to political candidates are public knowledge and can easily be found online.

And it’s not just one side of the political spectrum: 31% of liberals, 30% of moderates and 34% of conservatives are worried their political views could get them fired or harm their career trajectory. This suggests that it’s not necessarily just one particular set of views that has moved outside of acceptable public discourse. Instead these results are more consistent with a “walking on eggshells” thesis that people increasingly fear a wide range of political views could offend others or could negatively impact themselves.

These concerns are also cross‐​partisan, although more Republicans are worried: 28% of Democrats, 31% of independents, and 38% of Republicans are worried about how their political opinions could impact their career trajectories.

Freedom in the World

Freedom House published Freedom in the World 2019 in February. Key findings:

• Of the 195 countries assessed, 86 (44 percent) were rated Free, 59 (30 percent) Partly Free, and 50 (26 percent) Not Free.
• The United States currently receives a score of 86 out of 100 points. While this places it below other major democracies such as France, Germany, and the United Kingdom, it is still firmly in the Free category.
• In 2018, the United States suffered a decline in the rule of law, as government policies and actions improperly restricted the legal rights of asylum seekers, discrimination became evident in the acceptance of refugees for resettlement, and immigration enforcement and detention policies were excessively harsh or haphazard.
• In contrast, conditions for freedom of assembly in the country improved, with an upsurge in civic action and no repetition of the previous year’s protest-related violence.
• Ethnic cleansing and related abuses are a growing trend, leading to a large jump over the past 13 years in the number of countries (3 to 11) that receive score reductions due to egregious efforts to alter the ethnic composition of their territory.
• In many struggling democracies, antiliberal leaders’ verbal attacks on the media contributed to broader declines in press freedom and growing physical threats against journalists. At the same time, rulers elsewhere have been emboldened to take far more aggressive action in response to critical coverage.
• A growing number of governments are reaching beyond their borders to target expatriates, exiles, and diasporas. Freedom House found 24 countries around the world—including heavyweights like Russia, China, Turkey,Iran, and Saudi Arabia—that have recently targeted political dissidents abroad with practices such as harassment, extradition requests, kidnapping, and even assassination. Saudi Arabia’s murder of journalist Jamal Khashoggi in Turkey put a spotlight on authoritarian regimes’ uninhibited cross-border pursuit of their perceived enemies.
• Although the countries with net declines in this report (68) again outnumber those with net gains (50), the gap between them is smaller than in the previous year, and in 2018 more countries earned large improvements (more than 5 points) than in 2017.
• In Angola, Armenia, Ethiopia, and Malaysia, politicians unexpectedly responded or were forced to respond to public demands for democratic change, serving as a reminder that people continue to strive for freedom, accountability, and dignity, even in countries where the odds of success seem insurmountable.
• Hungary dropped from Free to Partly Free due to sustained attacks on the country’s democratic institutions by Prime Minister Viktor Orbán’s Fidesz party, affecting the media, religious groups, academia, NGOs, the courts, and the private sector. However, the year ended with vigorous dissent from thousands of protesters who took to the streets to denounce Orbán’s abuses.
• Serbia also dropped from Free to Partly Free due to election irregularities, legal harassment and smear campaigns against independent journalists, and President Aleksandar Vučić’s de facto accumulation of extraconstitutional powers.
• Nicaragua fell from Partly Free to Not Free as authorities brutally repressed an antigovernment protest movement with arrests and imprisonment of opposition figures, intimidation and attacks against religious leaders, and violence by state forces and allied armed groups that resulted in hundreds of deaths.

Blowing Out the Moral Lights Around Us

From The Economist:

A DECADE has passed since Larry Diamond, a political scientist at Stanford University, put forward the idea of a global “democratic recession”. The tenth edition of the Economist Intelligence Unit’s Democracy Indexsuggests that this unwelcome trend remains firmly in place. The index, which comprises 60 indicators across five broad categories—electoral process and pluralism, functioning of government, political participation, democratic political culture and civil liberties—concludes that less than 5% of the world’s population currently lives in a “full democracy”. Nearly a third live under authoritarian rule, with a large share of those in China. Overall, 89 of the 167 countries assessed in 2017 received lower scores than they had the year before.

Declan Walsh at NYT:

The global tide is driven by a bewildering range of factors, including the surge of populism in Europe, waves of migration, and economic inequality. And leaders of countries like Egypt, which had long been sensitive to Washington’s influence, know they run little risk of rebuke from an American president who has largely abandoned the promotion of human rights and democracy in favor of his narrow “America First” agenda.

In Cambodia, Prime Minister Hun Sen, who has ruled the country for 33 years, has led a sweeping crackdown on opponents before elections this summer. In November, Mr. Trump flashed a big thumbs-up as he posed for a photo with Mr. Hun Sen, who later praised the American president for what he called his lack of interest in human rights.
In Honduras, President Juan Orlando Hernández was inaugurated for a second term on Saturday amid uproar from opposition figures who accused him of rigging the vote, and despite calls for a new election from the Organization of American States. Washington ignored the O.A.S. findings, with the American chargé d’affaires offering only tepid statements calling on all sides to behave peacefully.

And the Russian president, Vladimir V. Putin, who was once forced to surrender power for four years to respect his Constitution, has barred the main opposition challenger in the March election, virtually assuring that he will win a fourth term. Mr. Trump has repeatedly expressed his desires for closer ties with Mr. Putin.

Limiting Free Speech on Campus

Catherine Rampell writes at The Washington Post:

For 50 years, researchers have surveyed incoming college freshmen about everything from their majors to their worldviews. On Thursday, the Higher Education Research Institute at the University of California at Los Angeles released the latest iteration of this survey, which included 141,189 full-time, first-year students attending about 200 public and private baccalaureate institutions around the country.

According to the findings, the current crop of freshmen can lay claim to multiple superlatives. Among them: most willing to shut down speech they find offensive.

About 71 percent of freshmen surveyed in the fall said they agreed with the statement that “colleges should prohibit racist/sexist speech on campus.” This question has been asked on and off for a couple of decades, and 2015 logged the highest percentage of positive responses on record. For comparison, the share in the early 1990s hovered around 60 percent; also high, but not as high as today.

 What speech counts as “racist” or “sexist” is of course in the eye of the beholder, as evidenced by recent attempts to silence public discourse on racially and sexually charged topics at Wesleyan, Yale and Northwestern universities.

A related survey question, which has been asked most years since 1967, inquired whether “colleges have the right to ban extreme speakers from campus.”

About 43 percent of freshmen said they agreed. That’s nearly twice as high as the average share saying this in the 1960s, 1970s and 1980s. It was surpassed only once, just barely, in 2004. But in general, support for banning speakers from campuses has trended upward over time.

Free Expression: Global Views

Pew reports on an international survey on free expression.  As other posts have noted, the United States tends to be an outlier in support of freedom of speech and press.

Beliefs About Freedom and Corruption

Gallup reports:

Fewer Americans are satisfied with the freedom to choose what they do with their lives compared with seven years ago -- dropping 12 percentage points from 91% in 2006 to 79% in 2013. In that same period, the percentage of Americans dissatisfied with the freedom to choose what they do with their lives more than doubled, from 9% to 21%.

Gallup asks people in more than 120 countries each year whether they are satisfied or dissatisfied with the freedom to choose what they do with their lives. In 2006, the U.S. ranked among the highest in the world for people reporting satisfaction with their level of freedom. After seven years and a 12-point decline, the U.S. no longer makes the top quartile worldwide.

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Although unclear, the decline in perceived freedom could be more than just economics.

Another possible explanation for the decline in freedom is how Americans feel about their government. Gallup asks an additional question worldwide about whether people believe corruption is widespread throughout their government. This item is related to perceptions of freedom at the national level.

Among Americans, perceptions of widespread corruption in their government have been generally increasing over the past seven years.

Perceived widespread corruption in the U.S. government could be on the rise for several reasons, including the significant media attention on issues such as the IRS targeting of conservative groups and the National Security Agency leaks. Americans not only feel that the U.S. government is performing poorly, as demonstrated by record-low congressional approval ratings, but they also report that the U.S. government itself is one of the biggest problem facing the country today.

Economic Freedom

Our chapter on economic policy looks at international ratings of economic and political freedom.

In September, Canada's Fraser Institute reported:

Hong Kong again topped the rankings of 151 countries and territories, followed by Singapore, New Zealand, and Switzerland in the Fraser Institute’s annual Economic Freedom of the World report.

The United States, once considered a bastion of economic freedom, now ranks 17th in the world.

“Unfortunately for the United States, we’ve seen overspending, weakening rule of law, and regulatory overkill on the part of the U.S. government, causing its economic freedom score to plummet in recent years. This is a stark contrast from 2000, when the U.S. was considered one of the most economically free nations and ranked second globally,” said Fred McMahon, Dr. Michael A. Walker Research Chair in Economic Freedom with the Fraser Institute.

Venezuela has the lowest level of economic freedom worldwide, with Myanmar, Republic of Congo, Zimbabwe, and Chad rounding out the bottom five countries. Some nations, like North Korea and Cuba, could not be ranked because of a lack of data.

The conservative Heritage Foundation recently reached a similar conclusion:

In a welcome turnaround, economic freedom is “once again on the rise,” according to the editors of the 20th annual Index of Economic Freedom, released today by The Heritage Foundation and The Wall Street Journal. “Much of the momentum lost during the past five years has been regained.”

The world average score of 60.3—seven-tenths of a point above the 2013 average—is the highest average in the two-decade history of the Index, the editors note. Forty-three countries, including Singapore andSweden, achieved their highest scores yet in the 2014 Index. Among the 178 countries ranked, scores improved for 114 countries and declined for 59. Four recorded no score change.

But the news was not all positive. The United States fell out of the top 10, its score declining enough to leave it in the 12th slot overall. The 2014 Index finds notable declines for the U.S. in fiscal freedom, business freedom and property rights, placing it again behind its neighbor to the north, Canada.

"No One Has a Right to Make Fun of Anyone"

Ars Technica reports on one Georgia lawmaker's peculiar view of the First Amendment:

Infuriated by a critic who photoshopped his head onto the body of a male porn star, a Georgia legislator has proposed making such images illegal. Violators would face a $1,000 fine.

“Everyone has a right to privacy,” Rep. Earnest Smith (D-Augusta) said in an interview with FoxNews.com. “No one has a right to make fun of anyone. It’s not a First Amendment right.”

The legislation would define defamation to include cases where someone "causes an unknowing person wrongfully to be identified as the person in an obscene depiction in such a manner that a reasonable person would conclude that the image depicted was that of the person so wrongfully identified." It specifically includes "the electronic imposing of the facial image of a person onto an obscene depiction."

The Supreme Court has a different take. In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) the Court ruled 8-0 that Rev. Jerry Falwell could not collect damages for an equally offensive cartoon.  From the syllabus of the opinion:

In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a "public figure" for First Amendment purposes, and the lower courts' finding that the ad parody was not reasonably believable must be accepted. "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here. 

Criminalizing Speech

Law professors Jonathan Turley (George Washington University) and Eugene Volokh (UCLA) note recent challenges to freedom of speech.

At the Los Angeles Times, Turley writes of a Pennsylvania judge who dismissed harassment charges against a Muslim who attacked an atheist.  The latter had worn a costume mocking Muslims, and the judge criticized him for it.  Turley reflects on a broader trend:

Western countries are on a slippery slope where more and more speech is cited by citizens as insulting and thus criminal. Last year, on the Isle of Wight, musician Simon Ledger was arrested on suspicion of racially aggravated harassment after a passing person of Chinese descent was offended by Ledger's singing "Kung Fu Fighting." Although the charges were eventually dropped, the arrest sends a chilling message that such songs are voiced at one's own risk.

Some historical debates have now become hate speech. After World War II, Germany criminalized not just Nazi symbols but questioning the Holocaust. Although many have objected that the laws only force such ignorance and intolerance underground, the police have continued the quixotic fight to prevent barred utterances, such as the arrest in 2010 of a man in Hamburg caught using a Hitler speech as a ring tone.

In January, the French parliament passed a law making it a crime to question the Armenian genocide. The law was struck down by the Constitutional Council, but supporters have vowed to introduce a new law to punish deniers. When accused of pandering to Armenian voters, the bill's author responded, "That's democracy."

Perhaps, but it is not liberty. Most democratic constitutions strive not to allow the majority to simply dictate conditions and speech for everyone — the very definition of what the framers of the U.S. Constitution called tyranny of the majority. It was this tendency that led John Adams to warn: "Democracy … soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide.''

Legislators in the United States have shown the same taste for speech prosecutions. In June, Tennessee legislators passed a law making it a crime to "transmit or display an image" online that is likely to "frighten, intimidate or cause emotional distress" to someone who sees it. The law leaves free speech dependent not only on the changing attitudes of what constitutes a disturbing image but whether others believe it was sent for a "legitimate purpose." This applies even to postings on Facebook or social media.

Rush Limbaugh recently made vile and demeaning comments about a woman who sought to testify about contraception. Volokh writes:

Noted lawyer Gloria Allred, writing on the letterhead of the Women’s Equal Rights Legal Defense and Education Fund has asked the West Palm Beach County Attorney to prosecute Rush Limbaugh for violating Fla. Stat. § 836.04:

Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree ….

Readers of the blog know of my disapproval of Rush Limbaugh’s “slut”/”prostitute”; but while I condemned those remarks, they can’t be criminally punished.

1. Knowingly false statements of fact about a person are indeed constitutionally unprotected, whether they injure the person’s reputation (and are thus libel or slander) or would simply be highly offensive to a reasonable person (and are thus actionable under the false light tort). But that is so only when a reasonable listener would perceive these as factual assertions, not as hyperbole or as statements of opinion.

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 2. Beyond this, the Florida criminal statute, which explicitly applies only to accusations about women and not men, almost certainly violates the Equal Protection Clause doctrine that bans most forms of sex discrimination. (See, e.g., Mississippi Univ. for Women v. Hogan (1982).)

Freedom in the 50 States

We have previously discussed comparisons among the states. The Mercatus Center at George Mason University has issued a new report, Freedom in the 50 States, by Jason Sorens and William Ruger. From the executive summary:

This study comprehensively ranks the American states on their public policies that affect individual freedoms in the economic, social, and personal spheres. It updates, expands, and improves upon our inaugural 2009 Freedom in the 50 States study. For this new edition, we have added more policy variables (such as bans on trans fats and the audio recording of police, Massachusetts’s individual health-insurance mandate, and mandated family leave), improved existing measures (such as those for fiscal policies, workers’ compensation regulations, and asset-forfeiture rules), and developed specific policy prescriptions for each of the 50 states based on our data and a survey of state policy experts. With a consistent time series, we are also able to discover for the first time which states have improved and worsened in regard to freedom recently.

More detail on video:

A report in The Huffington Post:

New York isn't North Korea, but it's the closest thing you'll find in the U.S. -- at least according to a new report from a libertarian think tank.

A Mercatus Center study has pegged New York as the country's "least free" state, 49 slots behind "Live Free or Die" New Hampshire. Its authors gave the state particular abuse for its taxes, "by far the highest" in the country, according to their methodology.

True to their libertarian ways, however, they also said that New York would have scored higher if it had legalized gay marriage.

New York's low ranking in the study hasn't stopped co-author Jason Sorens from living in the state -- he's an assistant professor at SUNY Buffalo. And for the many New Yorkers who might associate freedom with being able to actually enjoy themselves, Sorens acknowledged that there are a few more nightlife options in the Empire State than in, say, South Dakota (#2 in the index).

The Writing on the Wall

Our first chapter deals with the concepts of freedom and democracy, which are easy to take for granted -- unless they are absent. The Los Angeles Times reports:

On walls across Libya's second-largest city are the same scrawled graffiti: Game Over.

Days after protesters took control of Benghazi after fierce attacks by Libyan leader Moammar Kadafi's militia and alleged mercenaries left many dead and injured, demonstrations continued at the courthouse where they began a week ago. People called for Kadafi's resignation and expressed support for anti-government efforts in the capital, Tripoli, and other cities.

"From the first day, from the 17th, there was no more fear. We fought fear; the revolution's youth taught us courage," said Abdulmutalib Bashir, 51. "We are a people who won't surrender; either victory or death."

The idea that "the writing on the wall" can spell doom for a regime is an ancient one. From Daniel 5: 25-28 (King James Version):

And this is the writing that was written, MENE, MENE, TEKEL, UPHARSIN.

This is the interpretation of the thing: MENE; God hath numbered thy kingdom, and finished it.

TEKEL; Thou art weighed in the balances, and art found wanting.

PERES; Thy kingdom is divided, and given to the Medes and Persians.

Governing By Fear

In our first chapter, we take a comparative look and note that some rulers suppress freedom simply to stay in power. As Jeffrey Fleishman of the Los Angeles Times writes, Libya is a case study:

Moammar Kadafi's many vanities led the Libyan leader and his intelligence network into miscalculating the breadth of outrage against him in his own land. Long one of the Arab world's most perplexing personalities, Kadafi has traveled the globe with a tent, warning against foreign intervention while polishing his image at home as the country's "Brotherly Leader."

But the unrest sweeping the tribal nation is a sign that after four decades in power, Kadafi has lost the support of key clans and loyalists, and has steadily relied on repression to stay in power. It is as if he failed to grasp the dynamic of change emanating from Tunisia to his west and Egypt to his east.

"Kadafi's biggest mistake was that he built his whole regime on pure fear," said Omar Amer, a member of the Libyan Youth Movement, a protest group that spreads its message through Facebook. "He totally abandoned civilizing Libya. He neglected education and development projects. He left the majority of his people in the dark ages and built his might on fear through torturing and killing political dissidents in public.

"But the fear that Kadafi built his empire with is gone, and that was his last shelter," Amer added.