Free Speech Carries Costs for Elections, Protests and Vaccines

As part of 101.9 WDET’s Book Club, we’re inviting the Detroit region to examine and discuss the text that impacts every resident of the United States: The Constitution. Whether you’re revisiting the documents or reading them for the first time, join us in reading along and engaging in civil conversations with your community. 

Perhaps none of rights granted to citizens in the U.S. Constitution is more engrained in American life than the First Amendment right to free speech. 

But experts say free speech is not a free pass to say whatever one wants whenever they want. 

It’s almost hard these days not to come across someone ostensibly exercising their right to free speech, whether it be an outlandish claim, a passionate plea or an outright falsehood.

Even if it’s all just made up it’s OK, because in the U.S. you can say what you want. 

Right? 

Not exactly.

“The simple answer’s no. There’s no right in the country or in the Constitution that is in that sense absolute,” says Jonathan Zimmerman, a professor and historian at the University of Pennsylvania. He’s also the co-author of the book “Free Speech and Why You Should Give a Damn.”

He says there are certain boundaries even the right to free speech cannot cross. 

“You can’t call up the White House and say you’re going to shoot the president. Is that a ‘restriction’ on your speech? It is,” Zimmerman says.  

Listen: Hear the full interviews with free speech experts Nancy Costello and Jonathan Zimmerman.

The Right to Question

Yet in some ways the right to free speech was specifically designed to be a threat against the status quo. 

Nancy Costello directs the First Amendment Law Clinic at Michigan State University. She says the nation’s founders wanted to freely question those in the citadels of power. 

“If you were to speak out against the government at that time, against the King of England, you could be jailed for it,” Costello says. “And the framers of the Constitution realized this is a bad thing. We should be able to criticize our government. Because in criticizing government you have a better chance of making good public policy. And the most protected speech of all is political speech.”  

Still, Zimmerman notes the U.S. has drawn lines to limit even political speech. 

“Vietnam was our first war where you had constitutional protections to and criticize the war. In every single prior war Americans were fined, jailed and punished for criticizing America’s involvement in the war,” he says.

Crossing the Verbal Line

Blink O’Fanaye/Flickr

But is it protected free speech when, for example, an outgoing U.S. president falsely claims an election was stolen from him, then tells a crowd of thousands to do something about it, an action that leads to an insurrection? 

Donald Trump’s words on Jan. 6 turned into the grist for impeachment proceedings.

“And we fight, we fight like hell. And if you don’t fight like hell you’re not gonna have a country anymore,” Trump told his supporters. “We’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue. And we’re going to the Capitol.” 

Many members of Congress said Donald Trump’s speech on Jan. 6 fell into the “incitement” category — talk that would likely cause an immediate and potentially violent reaction. 

Michigan State’s Costello agrees. 

“Can people get pretty lathered up and say awful things about people in front of a crowd? Yes,” Costello says. “It’s when they take that step of also saying things like ‘We have to fight like hell, march down there, I’m gonna lead you.’ That kind of thing. That’s different. That’s going over the line.” 

“It’s when they take that step of saying things like ‘We have to fight like hell, march down there, I’m gonna lead you.’ That’s different. That’s going over the line.” –Nancy Costello, Michigan State University First Amendment Law Clinic

Zimmerman, however, cautions that arguing Trump, in effect, caused a riot could also become a bludgeon used against those who are legally exercising their right to cry out against injustice. 

“You want to say that Trump is directly responsible for that. Then the next time there’s an unarmed African American that’s killed on the streets of America, there will be a protest. And then there may be some violence like the burning of a police car. Some protester [saying] ‘Down with police, police are murderers. Here’s what you got to get ready for. The person I’m talking about [could] be arrested for incitement as well,” he says.  

There are ways to prevent that.  

Russ McNamara / WDET

Last summer’s protests in Detroit over the death of George Floyd, for example, were remarkably peaceful compared to other cities. 

Speakers did not veer into territory that Costello says is not protected free speech, the kind heard at rallies specifically designed to provoke a crowd to respond angrily — or physically. 

“They’re saying really awful, violent and vile things right in their face. Kind of spitting in their face. And they’re saying ‘You wanna do something about it? Go ahead!’ And then that person who’s listening throws a punch at them. That’s not protected speech,” she says. 

Owning Speech

The rules can change when private companies are involved. 

U.S. Surgeon General Vivek Murthy recently blasted those in charge of social media platforms such as Facebook and Twitter for allowing what the government estimates is about a dozen people to promote the vast majority of anti-COVID-19 vaccination theories online. 

Murthy said, “We are asking them to step up. We know they have taken some steps to address misinformation. But much, much more has to be done. And we can’t wait longer for them to take aggressive action because it’s costing people their lives.” 

Zimmerman says he understands the surgeon general’s concerns.

“Who is going to be the all-knowing censor that’s going to decide which information is so horrible that we can’t hear it?” –Jonathan Zimmerman, author, “Free Speech and Why You Should Give a Damn”

But Zimmerman fears in this case the government is truly trespassing on free speech rights. 

“Who is going to be the all-knowing censor that’s going to decide which information is so horrible that we can’t hear it?” 

Costello says the court system can provide an answer. But it often takes a long time.  

“The First Amendment doesn’t protect lies,” she said. “Our remedy right now is to sue for defamation. And it’s a slow process. So, a lot of free speech experts believe that the only cure to this is more speech that basically puts as much truth out there as possible. It’s a big debate.”   

Weaponizing Words

The argument extends to public schools as well. 

Costello says the U.S. Supreme Court recently ruled a high school violated the free speech rights of a sophomore after the student posted a profanity-laden message about a cheerleading squad. 

“The U.S. Supreme Court protected that speech because it was done off campus on a weekend. If you had to constantly monitor and penalize students for swearing you would be doing that to everybody. And that was just considered too much of a reach,” she says.  

But Zimmerman wonders if universities are going too far when they try to protect some students from hate speech. He contends the arguments colleges use for prohibiting racially offensive imagery is the same rationale used by opponents of teaching critical race theory in class.  

“I’ve been warning my fellow lefties for years and years, we start weaponizing censorship in these ways and we start claiming that something should be out of bounds because it hurts people’s minds and psyches, that’s going to be weaponized against you one day. That day has arrived,” he says. 

Free speech remains a cornerstone of the U.S. Constitution and the elusive American Dream. 

But that speech has never been completely free. 

There’s always a cost, either in how it’s used or how it’s limited.