Ken White on faulty speech tropes

“If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment,” argues Los Angeles litigator Ken White in an Atlantic essay. “Those tired tropes are barriers to serious discussions about free speech.” Among verbal gestures that help very little or not at all when you’re trying to establish whether particular speech is protected under current First Amendment law:

* “Not all speech is protected; there are exceptions to the First Amendment.” [true but usually not helpful]

* “This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.” [see above; also, an empty rhetorical device deployed in a case that’s no longer good law]

* “Incitement and threats are not free speech.” [true, but regularly misapplied to speech that does not meet the law’s narrow definitions of these terms]

* “Fighting words are not free speech.” [same, even assuming that Chaplinsky v. New Hampshire (1942) is still good law]

* “Hate speech is not free speech.” [no, it mostly is]

* “Stochastic terrorism is not free speech.” [same]

* “We must balance free speech with [social good].” / “There is a line between free speech and [social evil].”

* “They do it in Europe!”

* “We talked to a professor and a litigator who said this is not protected speech.”

* “This speech may be protected right now, but the law is always changing.”

Watch and (if you’re like me) cheer as Ken dispatches them all.

[cross-posted from Cato at Liberty]


  • A common, tangentially related argument that wasn’t listed was “the First Amendment doesn’t protect against actions by private corporations/universities/etc.” Which, regardless of the degree to which that is true, is usually also irrelevant, as it tends to be used as a counter to people broadly arguing against censorship as a general, societal ill. “Free speech” is both a legal doctrine and an ethical assertion, and defenders of censorship by Twitter/Youtube/private university administrations/etc. willfully conflate the two.

    • Ken White’s omission of that argument is very likely due to his disagreeing with you about it. He has repeatedly held the public/private actor distinction to be vital not just legally in setting the bounds of what the Constitution restrains, but also ethically. It is often commendable, in his view, for private organizations to refuse to let themselves be used to disseminate certain types of vicious messages. I can’t disagree with him on the principle of that, although I have more than once disagreed with his evaluation of how the principle plays out with respect to particular actors and institutions.

      All of which is good reason not to use the term “censorship” when referring to Twitter terms of service, private university rules on clubs and speakers, and other controversies when not involving government action or pressure.

      • I don’t think that “censorship” only refers to governmental action. A private university does censor, even though it is not a government actor, and how do you deal with private university speech suppression that violates law (e.g., Title IX)?

        I think you would just add “official” to “censorship”–also, there is another element–obviously, the First Amendment has a cultural element. What Joaquin Castro did, while not violative of the First Amendment, is antithetical to the spirit of the First Amendment—particularly since one of his goals is clearly pour encourager les autres.

        Joaquin Castro is a censor.

        • SPO, I agree with your assessment. Censorship doesn’t have to be governmental to be censorship. Parents censor children. Television networks employ teams of censors, for their own product. Social media platforms censor content on their sites. These are all within the normal English usage of the word censor.

  • “This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.”

    The statement is true—it’s just misapplied. Obviously, raising a a false alarm to cause immediate panic in people who have no ability to assess the validity of the alarm is actionable.

    “Fighting words are not free speech.” You can’t walk up to someone and call them the “n-word” and claim free speech.

    But when people use these narrow things to try to block speech, or worse yet, arrest people for it, it is sickening. At the end of the day, when someone is arrested for the exercise of free speech, we lawyers can say “the system worked” when the courts ultimately get it right–but that’s really not true. And we know it.

  • The most extreme danger comes when companies like Twitter or Youtube (google) decide that Republican candidates are promoting hate speech with their ads and won’t run them. Or when Mitch McConnell has a violent mob outside his home and his video of that mob is taken down. When Youtube censors fighting robots under “animal cruelty” it just further shows how idiotic the criteria are for censorship.