Archive for the ‘Freedom of speech’ Category

Spending in the New Jersey gubernatorial race

March 12, 2010

Jono has previously posted on the uncertain relationship between election spending and election outcomes (noting that other factors such as national partisan swings and candidate attributes mean that election spending is not strongly determinative of election outcomes).

Spending reports from last year’s governor’s race in New Jersey, in which the Republican challenger Chris Christie beat the incumbent Democratic governor Jon Corzine, provide an interesting data point.  Reports indicate that Corzine outspent Christie by 2-1. 

Realclearpolitics reports: 

The final tallies are in for the Gubernatorial race in New Jersey last year. Jon Corzine outspent Chris Christie two-to-one the primary and general election campaigns, $31.5 million to $15.5 million. Even those numbers are a bit misleading since Corzine was essentially unopposed in the primary while Christie had a legitimate race on his hands.

Additionally, the Republican Governor’s Association spent another $7.3 million on Christie’s behalf, which was offset by $7.1 million in spending by Democratic groups on Corzine’s behalf.

Despite the $15 million spending advantage, however, Corzine lost by four points.

So when politicians say that they need to impose restrictions on advertising to control the influence of “big money”, it’s worth asking whether there is any cogent evidence that the relationship between election spending and election outcomes is as direct as they claim or whether they are just making assumptions.

The Cost of Free Speech

March 10, 2010

This post is slightly different than the usual post here. The main difference is that I am more unsure of the full implications of my current view than usual.

It seems pretty obvious to me that one still has free speech even when the speech will cost. For example, making sexist remarks may mean others judge you and think less of you. If a businessman makes racist remarks, then perhaps fewer of the relevant race will purchase goods or services from him. I do not think anyone would claim that the businessman does not have free speech because its exercise impacts him in a negative way.

Conversely, it seems to me pretty obvious that a Government that refused to grant contracts to businesses on the basis of the political speech of a director or shareholder would be limiting her free speech. The fact that she could speak her mind is technically true, but costs imposed by the Government on those who speak their mind matter – or certainly seem to matter in my opinion. Is this merely picking up on the point that Alan Dershowitz has made that Jono referenced here?

I think the answer must be no, because the implications are much larger. It suggests that a free market is a necessary, but not sufficient, condition of genuine free speech. Am I missing anything?

Supreme Court grants cert. in funeral picketing case

March 9, 2010

Today the Supreme Court of the United States agreed to hear an appeal from the decision of the United States Court of Appeals for the Fourth Circuit in Snyder v Phelps, which raises difficult and controversial issues about the extent to which tort liability can arise from speech by funeral picketers.

Marine Lance Corporal Matthew Snyder died in the line of duty in Iraq in 2006.  He was buried in his home town of Westminster, Maryland on 10 March 2006.  A fringe religious group called the Westboro Baptist Church picketed the funeral carrying signs such as “Thank God for IEDs”, “God hates you,” and “Semper fi fags.”  The group has picketed other funerals and appears to regard the occurrence of military casualties as some type of supernatural retribution for the United States’ tolerance of homosexuality.  The group kept at a distance of 1,000 yards ordered by local police.

The marine’s father brought civil proceedings against the family who led the picket on the grounds that it constituted an intrusion into a secluded event, intentional infliction of emotional distress, and civil conspiracy.  The jury ruled in his favour and awarded $10.9 million damages, which the trial judge reduced to $5 million.  The Phelps (the family who runs the religious group) appealed to the Fourth Circuit, which reversed the judgment.

The Fourth Circuit concluded that a reasonable bystander would not interpret the group’s signs as indicating actual facts about the deceased but instead as signalling the group’s hostility towards the country and armed forces in general.  Accordingly, the court concluded that the signs constituted statements of opinion which were therefore subject to First Amendment protection and “[b]ecause the [trial court] judgment attaches tort liability to constitutionally protected speech” it should be reversed.

However, the Court made two contextual points.  First:

To paraphrase our distinguished colleague Judge Hall, judges defending the Constitution “must sometimes share [their] foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people.”

Second, the Court noted the power of local authorities to keep such protesters at a distance:

Nonetheless, the various states and localities, as well as grieving families, may yet protect the sanctity of solemn occasions such as funerals and memorials. Indeed, governmental bodies are entitled to place reasonable and content-neutral time, place, and manner restrictions on activities that are otherwise constitutionally protected.

The marine’s father now has an opportunity to argue before the Supreme Court that the Fourth Circuit should be reversed.  I do not have a clear view on how the Supreme Court will rule (or ought to rule).  I think Professor Volokh and others raise a valid concern about the potential for the scope of tort liability for the intentional infliction of emotional distress to have a chilling effect.  While the religious group’s behaviour here is contemptible and deeply offensive, it is nonetheless important to tread carefully when the First Amendment is at stake.  As the Fourth Circuit points out, we sometimes need to uphold the rights of vile people in order to maintain important rights and freedoms.

Of course, from a New Zealand perspective, it is less clear to me that the case would directly raise freedom of expression issues.  In the United States, private tort claims can implicate the First Amendment.  New Zealand law does not generally regard private tort awards based on the content of the speech as involving any kind of state action so as to directly engage the New Zealand Bill of Rights Act (though the right to freedom of expression plays a role in the development of common law torts such as defamation).

It is relevant to note in this context, that the New Zealand Court of Appeal has recently upheld a conviction (on a charge of offensive behaviour in a public place) for burning a flag at an ANZAC memorial service (see, R v Morse, though the case raises different issues from those discussed in this post).

UPDATE: The Fourth Circuit’s decision has quite a useful footnote summarising the litigation and legislation that has arisen from this group’s activities:

The Defendants have a substantial history of protesting at venues other than soldiers’ funerals. For example, on the day of Matthew Snyder’s funeral, they also protested in Annapolis at the Maryland State House and at the Naval Academy. The Defendants have also been involved in litigation throughout the country relating to their protests. See, e.g., Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008); Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008). As a result of such activities, approximately forty states and the federal government have enacted legislation addressing funeral picketing. See Stephen R. McAllister, Funeral Picketing Laws and Free Speech, 55 U. Kan. L. Rev. 575, 576 (2007).

What is freedom of speech?

March 3, 2010

New Zealand Bus’ decision not to allow the New Zealand Atheist Bus Campaign to place these advertisements on its buses has some, including some religious folks, complaining that free speech rights are being interfered with. While I think that the advertisements would have stimulated a healthy debate (a debate which is happening already to some extent thanks to the publicity NZ Bus’ decision has generated), I don’t think this is a free speech issue (at least not one that implicates the Atheist Bus Campaign’s free speech rights).

What does the right to freedom of speech mean? It does not mean that I can compel other individuals to carry my message on their buildings or billboards or put up placards on their front lawn. It does not mean that you or I have a right force others to listen to our message. You’re free to stop reading this blog for instance, although I hope you don’t.

Freedom of speech is a restriction on government action. It is essentially a right not to be censored by the government. It is not a right that imposes positive obligations, rather it limits the way in which the government can act. Alan Dershowitz explains this point nicely in his book Rights from Wrongs:

There is no right to speak freely in all contexts. If you say something your boss does not like, he may fire you. Your spouse may leave you. Your parents may punish you. Your private school may expel you, and your friends may abandon you. Only the government may not restrict your right of free speech. (at 175)

So New Zealand Bus is free to choose whether to accept this or any other advertisement. Its right to free speech allows it to make that choice without censorship or direction from the government. That is of course not to say that we might not hope that it would carry any message to promote public debate but its refusal to do so does not interfere with the atheist campaigners’ free speech rights. Critics of New Zealand Bus’ decision are of course free to exercise their right to freedom of speech to try to convince it to change its mind (as they are doing).

I note that New Zealand Bus’ decision may raise other issues, such as whether it is discriminating against the atheist campaigners on religious grounds.  That’s an issue that I think Jesse has some thoughts on, so I will leave it for another day.

Support for the First Amendment

February 20, 2010

An interesting post over at the Cato blog about public support for free speech in the United States.  The author concludes that:

In the abstract, Americans continue to support First Amendment freedoms. In concrete cases, majorities still often oppose the exercise of such freedoms. Citizens United vindicated the First Amendment in a specific case that a majority does not support. This gulf between principle and application has been and continues to be common among Americans.

This reminds me of Noam Chomsky’s point.  If you believe in freedom of speech, you believe in freedom of speech for the views you don’t like just as much as for the views you do.