BLACKFIVE: Free Speech, Free Press, And Thoughts

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Free Speech, Free Press, And Thoughts

Posted By Laughing_Wolf

Whenever comments are deleted, or the person posting them banned, there is an immediate outcry that somehow the individuals who write for this blog, or Blackfive who founded and hosts it, are somehow infringing on free speech and/or the right to a free press. The intellectual contortions that go into such accusations are amazing, astounding, and amusing.

They are two separate issues, but are indelibly intertwined here in the Great Experiment that is our Republic. At least in the minds of some.

Given the length, the rest willl be in extended entry.

First up, is the right to a free press. This is a subject discussed here by me before, or at my blog in several acts. A Free Press was not intended to create or define a specialized class of citizenry. It literally meant free access to the press, as the presses of the day were large and expensive. So much so, that a city or even region might have but one. The Government, as in the Federal Government, would not exercise prior restraint (except under very narrow exceptions subject to full checks and balances) against anyone so that they could literally go to the press and have whatever they wanted printed. The owner of a press was not required to print everything and anything, as the press was privately owned and controlled. They could, therefore, set their own rules. Free access to the press meant literally that, nothing more. First amendment law largely reflected this up until the meatpacking scandals of early last century, at which point the judiciary set the precedent (not law per se) that the media of the time could, under very specific circumstances, be set apart from common law in the pursuit of the common good. Simply put, exposing a practice or activity that jeopardized the welfare of individual citizens on a large scale (meatpacking scandal, health issues, wide-spread corporate corruption, etc.) or would undermine one or more of the fundamental operating precepts of the Constitution (i.e. governmental corruption, malfeasance, or attempt to subvert the Constitution) would trump common statute. It is important to note that this did not extend to libel.

It was and is limited, especially as it is a matter of precedent rather than statute. For that reason, newspaper, magazine, radio, and later television, were very careful about pushing the issue in an attempt to broaden it, as it would be extremely easy to have a ruling set-aside the precedent or declare limits to the precedent. It has only been since the 1960s that strong and much-more-frequent efforts to expand the precedent and have it enshrined in statute have taken place. A good place for those not of a legal bent to start is Emery and Emery's The Press and America, which is a standard journalism history text for many/most programs.

Free speech means just that. Within limits that include, but are not limited to, treason, sedition (for a while at least), incitement to crime, incitement of panic to create harm (no yelling fire in a crowded theatre), you can say pretty much whatever you want. The Federal Government, provided you did not stray into one of the limits, would do nothing to you. That did not mean, however, that you were safe from your fellow citizens. If you said something designed to provoke a response (fighting words), they were well within their rights to express their opinion -- even forcefully -- in return. While the Founding Fathers and, until recently, the Courts preferred that violence not be used, they did allow for it even as they encouraged a forceful exchange of ideas rather than fists. It is important to note that the strong effort to eliminate the concept of fighting words is an extremely recent addition to the pile. It is equally important to note that "fighting words" could not be used as a precept for prior restraint via intimidation. Just because you didn't like what someone had to say, you could not threaten or commit violence to prevent them from speaking.

One final point to consider is that the concept of a special class of citizens known as "The Press" or The Media or any other alias -- carefully nurtured by members of same -- was born of the expense of the early presses and other means of mass communication. Newspaper presses remain large and expensive, as do commercial radio and television stations. It was not until the last thirty or so years, and the reprographic revolution reduced the cost of printing and even colour printing, that small- to mid-scale printing could truly be considered to be within the reach of the average person. While this formed a crack, it was the arrival of the Internet and related software -- including blogs -- that mass communication truly came within the reach of almost every citizen. One of the reasons the Old Media, in my opinion, has been down on blogs and other forms of true citizen journalism (a concept as old as the Republic) is that it threatens the special class of citizenry since any and every citizen is not capable of meeting the basic precepts of journalism as outlined in legal precedent.

And this is all important because:

• When someone deletes your comments or blocks you from posting on a blog, online journal, etc., they are NOT the government blocking you from the press. They are the owner of the particular press in question, exercising their just, legal, and due rights as owner to publish whatever they choose to publish. You are not a customer who has paid for the privilege of use and therefore has a contractual beef. You are a private citizen who has been denied the use of the property owned by another private citizen. Just as you don't have to loan a hammer, lawnmower, or other piece of property to a neighbor or stranger, the owner of a press has no legal requirement to loan it to you. Freedom of the Press is not an issue.

• Freedom of Speech is not abridged. Again, the government has not exercised prior restraint, nor has the government taken any action against you. You have the right to say what you want, and have the means and ability to say it. The private owner of the blog is not, however, required to publish, disseminate, or otherwise spread your speech anymore than a newspaper is required to run your full and unedited letter to the editor, article or other screed. Simply put, it is private property. If you want to spread your word, you have the same means as the blog owner -- start your own blog. This, btw, is the same precept/precedent behind the letters to the editor issue: you have the means and opportunity to get your message out through advertising, mass mailing, mass reproduction, a competing media outlet, etc.

• Speech has consequences. If I make a mistake in the post, I hear about it. Believe me, I hear about it. If I post something offensive, I hear about it and Blackfive says he has a bar of soap with my name on it if I violate his language guidelines. This is his blog, his rules. He can fire me right now, no explanation, and it sticks. If someone posts something that violates his language guidelines, crosses other lines, or -- to be blunt -- if he just gets a wild hair, he can modify or delete the comment and even ban the poster. Because he has paid a blood price in support of our Freedoms, he is actually far more tolerant and patient than I in this regard. Nor does free speech mean that you can't be subjected to counter-argument, critical analysis, opprobrium, ridicule, taunting, being laughed at, or lauded for that matter, by [sp corrected] the owner, any writer, or reader. All have the right to express their opinion of your opinion, and that may be in the form of rebuttal, rewrite, deletion, or banning.

• Free speech does not mean free to you irregardless. The owner of a press of any description is not required to print whatever you want; and, most especially they are not obligated to do so at no cost to you. In short, they are not required to bear the costs of publishing your stuff (which is actually another part of the letter-to-the-editor concept above). When you post here, that is what is happening in that Blackfive is bearing the costs. Since that is the case, Blackfive is not obligated to publish everything, he can pick and choose what he wants. The fact that most comments stand is a testimony to the large number of good comments (and readers), and his patience and desire to reach out in rational discourse.

• Yes, I have simplified some of the concepts and most especially the precedents and case law. I think it an accurate presentation of the high points, noting that as with anything involving lawyers the details are complex and subject to much debate and discussion.

Following up on consequences, let me state that the Dixie Chicks and any other "martyrs" out there -- including those deleted or banned here -- have not had their freedom of speech abridged. The government did nothing to them. Customers, fans, business associates did what they are allowed to do, which is express their opinion via the pocketbook. The owner and members of this blog did what they are allowed to do with their private property. Don't like it? Then say so. Elsewhere.

The beauty of this information revolution in which we are a part is that everyone can own their own press. Everyone can use their press to present their ideas. The most beautiful part is that the market place of ideas is enriched beyond measure, and that the marketplace will decide the value of each contribution in a truly free market fashion. If your idea or complaint has merit, it will get attention and the riches of that attention. If your idea or complaint is without merit, well, it will sink like a stone beneath the waves without a ripple.

Just remember that no press owner is required to publish dreck of any description for any reason, anymore than a home owner is required to let strangers in to rearrange, redecorate, and use their living room as a latrine; or, that a newsletter publisher is required to allow someone to publish profanity or a long article having nothing to do with the subject of the newsletter. Failing to allow such is not suppression of freedom of speech or of the press. Rather, it is defending the right of the owner of the press to their free speech, and championing the ultimate concept of freedom of the press.