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Wednesday, October 11, 2017

Against unity

Unity is the enemy of the freedom of speech.

If unity is a primary value or principle, then free speech cannot exist.  If the goal is for society (or some segment of it) to be "unified," then speech that "divides"--that undermines unity or does something other than unify--cannot be tolerated. But another word for speech that "divides" is speech that anyone disagrees with, Holmes's "thought that we hate." If the goal is unity, then ideas and speech that divide-- ideas that anyone disagrees with--can be and must be suppressed or pushed out of sight. A society that values unity uber alles has no need to protect the freedom of speech and will not protect the freedom of speech. A "united" community will not seek to suppress speech that unites everyone in agreement, only speech that divides. But division undermines unity, so that society is justified in suppressing that dividing speech.

This means that "unity" is not a neutral or benign principle. A governing entity (the NFL, the President's spokesperson, whoever)  that argues about the need for unity is really arguing that it can and should be able to suppress speech. Because those who utter divisive--i.e., unpopular or dissenting--ideas divide, undermining that goal of unity.

Posted by Howard Wasserman on October 11, 2017 at 09:31 AM in First Amendment, Howard Wasserman | Permalink


"though "unity" shouldn't be used as a means of stifling debates about gun control"

I think just like after Roe it was much easier to have a rational discussion about abortion-controls once everyone knew their right was no longer going to be infringed, I think now that Heller has been decided it will be a lot easier to have a rational discussion about gun-controls.

Once Roe was decided everyone could agree that the right to an abortion is not absolute, so after Heller everyone can agree that the right to own a gun is not absolute.

And any control we put on guns, like waiting periods and bans for felons, we can put on abortions; since they're both rights, controls on one must be OK for the other.

If waiting periods on guns do not "in purpose or in effect [act] to stifle, penalize, or curb the exercise of Second Amendment rights", then they don't "in purpose or in effect [act] to stifle, penalize, or curb the exercise of [abortion] rights". Correct?

If waiting periods don't intrinsically violate the concept of a right, then they must apply to more rights than just gun rights, correct?

Posted by: Riddle me this, that, and the other | Oct 12, 2017 3:12:26 AM

I think the country can be highly "unified," so to speak, about something or another, and talk about the need for unity, while still allowing a wide berth for some distinctly minority views. The nation is unified in its horror at the shooting in Vegas, and ought to be (how else are people supposed to feel about it?), and at such times people talk about unity, and quite appropriately so, though "unity" shouldn't be used as a means of stifling debates about gun control. But I will say, I have the misfortune of having a very close relative who believes that this shooting and many other mass shootings were staged events, manufactured by "the government" to take people's guns away; he's not even sure that anyone really died. He gets these ideas, of course, from the Internet, where amateur Youtube video makers and some pretty large and profitable websites stay busy promoting this kind of nonsense. An even larger contingent of people go around posting videos of Sanders campaign events in which bearded men who look a little like Stephen Paddock appear, and say that the "fake news media" are stifling his real Sanders-ite motives for the shooting.

Now, neither he nor they seem to be at all stifled by calls for "unity" about this or other shootings, and as much as people value unity about such events and are very vocal about finding this sort of speech extremely offensive, tasteless, hurtful to the families of the victims, and asinine, that speech still very much exists. The farthest anyone's gone to suppress it is to petition Megyn Kelly to not do an interview of Alex Jones on the ground that he'd claimed the Newtown school shooting was a hoax. The petitions failed, but even if they hadn't, Jones reaches millions and will have no trouble getting his message out. So I don't know about the connection you're drawing between valuing unity and free speech not existing. You'd be right if the courts started deciding First Amendment cases on the ground of whether speech detracted from unity, but that's certainly not happening, hasn't been in any serious danger of happening since the early days of the Cold War and cases like Dennis, and social pressures against detracting from unity, as I say, don't seem to work very well. I don't think the NFL or this President's spokesman of all people are going to succeed in suppressing a lot of speech by talking about unity. They're not exactly unifying figures or entities. So I think you worry too much.

Posted by: Asher Steinberg | Oct 12, 2017 1:05:26 AM

The point of protecting the freedom of speech is to allow speakers, through their ideas and the expression of their ideas, to "cause significant division in the country." The idea that, in order to avoid that significant division we can eliminate speech, is contrary to the idea of a freedom of speech.

Posted by: Howard Wasserman | Oct 11, 2017 6:55:55 PM


58 percent of college students think it’s important to be part of a campus community where they are not exposed to intolerant or offensive ideas.

Posted by: Fire.org | Oct 11, 2017 5:38:13 PM

Wasn't unity and harmony pretty much Lincoln's argument for nationalizing the slavery issue? Issues that caused disharmony between the states and the people of the different states were, thus, national issues and could be dealt with thusly? Seems that metric applies to things like the anthem protest. It is certainly bigger than just a workplace demonstration (and was always intended to be bigger than a workplace demonstration) and has pulled in the entire country, not just NFL fans, and has caused significant division in the country.

Posted by: YesterdayIKilledAMammoth | Oct 11, 2017 5:11:53 PM

I am not sure when this turned into Dueling Bartletts, plus please stop.

Posted by: Howard Wasserman | Oct 11, 2017 4:33:03 PM

"I share no one's ideas; I have my own."

"Damn all authorities!" shouted Sitnikov, delighted to have an opportunity of expressing himself boldly in front of the man he slavishly admired.

-Fathers and Sons by Ivan Turgenev, translated by Richard Hare


Posted by: i've got my own | Oct 11, 2017 4:30:41 PM

James: A core level of unity, with a basic commitment to some values, is not the same as unity being the ultimate value. The latter allows all dissenting speech can be (and is) dismissed or derided as "divisive." The former could be satisfied by saying we are unified around certain ideas, such as the right to think as you will and speak as you think (now *there* is a quotation) or I hate that you kneel for the national anthem, but I will defend to the death your right to kneel for the national anthem.

Phil: Interesting idea. But I think the difference is between cause and effect. In academia, the ultimate value is the exchange of ideas and following ideas wherever they lead, and there is unity around that value. (That is the theory, anyway--I am not sure how many people believe or support this idea). That is different than a commitment to unity for its own sake, which I what I am responding to.

Note that this is not a left/right phenomenon. I was troubled by (and wrtote about) the initial efforts of the NFL and certain non-protesting players to respond to the President's comments as "divisive" and to turn the anthem displays into a display of unity, whatever that meant.

Posted by: Howard Wasserman | Oct 11, 2017 4:24:33 PM

"Write in voting can serve as an important safety mechanism in those instances where a late developing issue arises or where new information is disclosed about a candidate late in the race. In these situations, voters may become disenchanted with the available candidates when it is too late for other candidates to come forward and qualify for the ballot. The prohibition on write in voting imposes a significant burden on voters, forcing them either to vote for a candidate whom they no longer support, or to cast a blank ballot. Write in voting provides a way out of the quandary, allowing voters to switch their support to candidates who are not on the official ballot. Even if there are other mechanisms to address the problem of late breaking election developments (unsuitable candidates who win an election can be recalled), allowing write in voting is the only way to preserve the voters' right to cast a meaningful vote in the general election."
-Justice Kennedy’s dissent in Burdick v. Takushi

Posted by: When all candidates are bad | Oct 11, 2017 4:14:57 PM

". One who hears disquieting or unpleasant programs in public places, such as restaurants, can get up and leave. But the man on the streetcar has no choice but to sit and listen, or perhaps to sit and to try not to listen.
When we force people to listen to another's ideas, we give the propagandist a powerful weapon. Today it is a business enterprise working out a radio program under the auspices of government. Tomorrow it may be a dominant political or religious group. Today the purpose is benign; there is no invidious cast to the programs. But the vice is inherent in the system. Once privacy is invaded, privacy is gone. Once a man is forced to submit to one type of radio program, he can be forced to submit to another. It may be but a short step from a cultural program to a political program.
If liberty is to flourish, government should never be allowed to force people to listen to any radio program. The right of privacy should include the right to pick and choose from competing entertainments, competing propaganda, competing political philosophies. If people are let alone in those choices, the right of privacy will pay dividends in character and integrity. The strength of our system is in the dignity, the resourcefulness, and the independence of our people. Our confidence is in their ability as individuals to make the wisest choice."
-Justice Douglas’ dissent in Public Utilities Commission v. Pollak

Posted by: What happens in a police state, stays in a police state | Oct 11, 2017 4:04:57 PM

"What happens under this law is typical of what happens in a police state. Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the classrooms. There can be no real academic freedom in that environment. Where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. Supineness and dogmatism take the place of inquiry. A "party line" -- as dangerous as the "party line" of the Communists -- lays hold. It is the "party line" of the orthodox view, of the conventional thought, of the accepted approach. A problem can no longer be pursued with impunity to its edges. Fear stalks the classroom. The teacher is no longer a stimulant to adventurous thinking; she becomes instead a pipeline for safe and sound information. A deadening dogma takes the place of free inquiry. Instruction tends to become sterile; pursuit of knowledge is discouraged; discussion often leaves off where it should begin.
This, I think, is what happens when a censor looks over a teacher's shoulder. This system of spying and surveillance, with its accompanying reports and trials, cannot go hand in hand with academic freedom. It produces standardized thought, not the pursuit of truth. Yet it was the pursuit of truth which the First Amendment was designed to protect."
-Justice Douglas’ dissent in Adler v. Board of Education of City of New York

Posted by: What happens in a police state, stays in a police state | Oct 11, 2017 4:02:59 PM

"But not the least of the virtues of the First Amendment is its protection of each member of the smallest and most unorthodox minority. Centuries of experience testify that laws aimed at one political or religious group, however rational these laws may be in their beginnings, generate hatreds and prejudices which rapidly spread beyond control. Too often it is fear which inspires such passions, and nothing is more reckless or contagious. In the resulting hysteria, popular indignation tars with the same brush all those who have ever been associated with any member of the group under attack or who hold a view which, though supported by reversed Americans as essential to democracy, has been adopted by that group for its own purposes.
Under such circumstances, restrictions imposed on proscribed groups are seldom static, [5] even though the rate of expansion may not move in geometric progression from discrimination to arm-band to ghetto and worse."
-Justice Black’s dissent in American Communications Association. v. Douds

Posted by: Eighth Day in May | Oct 11, 2017 3:58:31 PM

"Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within this country."
-Justice Holmes’ dissent in United States v. Schwimmer

Posted by: Oliver's Twist on 1A | Oct 11, 2017 3:55:58 PM

"We are Americans first. We're patriots first.
We all want what's best for this country. That's what I heard in Mr. Trump's remarks last night. That's what I heard when I spoke to him directly. And I was heartened by that. That's what the country needs -- a sense of unity, a sense of inclusion, a respect for our institutions, our way of life, rule of law, and respect for each other."
-Barack Obama, Nov 9, 2016

Posted by: Barack and a Hard Place | Oct 11, 2017 3:51:59 PM

"The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.
Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 315 U. S. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U. S. 252, 314 U. S. 262; Craig v. Harney, 331 U. S. 367, 331 U. S. 373. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups."
-Terminiello v. Chicago

Posted by: Sullivan's NYT | Oct 11, 2017 3:47:11 PM

"If the township may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, and resent its circulation by resorting to physical violence, there is no limit to what may be prohibited.
The danger of violent reactions becomes greater with effective organization of defiant groups resenting exposure, and if this consideration warranted legislative interference with the initial freedom of publication, the constitutional protection would be reduced to a mere form of words."
-Near v. Minnesota

Posted by: Sullivan's NYT | Oct 11, 2017 3:45:09 PM

"Johnson was convicted for engaging in expressive conduct. The State's interest in preventing breaches of the peace does not support his conviction, because Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression."

-Texas v. Johnson

Posted by: Barnette | Oct 11, 2017 3:40:04 PM

"So here, even if we believe that such compulsions will contribute to national unity, there are other ways to teach loyalty and patriotism, which are the sources of national unity, than by compelling the pupil to affirm that which he does not believe, and by commanding a form of affirmance which violates his religious convictions."

-Justice Stone’s dissent in Minersville School District v. Board of Education

Posted by: Barnette | Oct 11, 2017 3:33:25 PM

"We know now that there must be a single purpose, a single norm, a single approach, a single entity of people, a single virtue, a single morality, a single frame of reference, a single philosophy of government.
We must cut out all that is different like a cancerous filth! It is essential, in this society, that we not only have a norm but that we conform to that norm! Differences weaken us! Variations destroy us! this norm is what has ended nations and brought them to their knees! Conformity, we must worship in all interests! Conformity is the key to survival!"

-Twilight Zone: Eye of the Beholder by Rod Stirling

Posted by: The Different Ones | Oct 11, 2017 3:25:45 PM

Pledging allegiance, singing anthems, taking oaths and vows, participating in public prayers and moments of silence, like group genuflecting, are all religious activities. Participation cannot be required in a free society. To insist that someone stand, sit, place hand on heart, pray, recite god-nonsense. or keep silent is religious discrimination, pure and simple.

The First Amendment prohibits gummint from forcing such religious activity on anyone and our Public Accommodation and Employment laws prohibit the NFL from doing likewise as a condition of employment.

Posted by: Jimbino | Oct 11, 2017 1:07:05 PM

I find these rather odd thoughts coming from an academic. The academy - like many families - is a tight-knit group who constantly disagree with one another. Divisive speech, ironically, is the glue that holds the group together.

Posted by: Phil | Oct 11, 2017 12:36:50 PM

I also strongly disagree. This is really a false, slippery-slope argument. Unity as a value that trumps all others is inconsistent with free speech, but some level of unity is required for free speech to have serious value. In fact, promoting a core level of unity promotes free speech because it creates a reason to listen to others. Free speech that no one listens to doesn't accomplish anything.

Posted by: James | Oct 11, 2017 11:59:14 AM

Thanks for the post , but I do strongly disagree with all due respect . The very calling for unity , suggests or presumes division as presumption . Yet , every society has bonds in common or necessity of such unifying need . So , calling for unity , is calling also , for containing each other , containing divisions , and despite such divisions , there is a call , for sticking to the greater good . . That can happen , when they face : disasters , enemy , economic crisis etc…. In the US , many hate for example the president Trump . Yet , the call for unity is the call for containing divisions , for the greater cause and bonds uniting everybody , which is : The democracy , appropriate principles of governance . So , this is not for suppressing free speech , but , on the contrary , containing better , each other .


Posted by: El roam | Oct 11, 2017 11:47:26 AM

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