Concentric circles of free speech, via Colin Kaepernick.

(copied from a months-old Facebook post)

1) If someone calls Colin Kaepernick unpatriotic for kneeling during the national anthem, there’s no free speech issue. It may be a violation of some other values – civil discourse, reasoned debate – but definitely not free speech. Of course, it’s a bit disingenuous of me to pick Kaepernick as an example, because this fallacy is currently far more common on the right – the Kaepernick incident is one of the few recent cases when I’ve seen columnists invoke it from the left.

2) If the 49ers, a private organization, punishes Colin Kaepernick for kneeling at the national anthem before a game he’s about to play in (i.e. while he’s on the job), that’s not an issue of free speech rights, but I’d say it’s an issue of free speech as a value – that is, you’d be justified in saying “The 49ers don’t care about free speech!” if they did that.

3) If the 49ers, a private organization, punishes Colin Kaepernick for kneeling during the national anthem somewhere else, when he’s not on the job, that would probably be illegal under California law, which protects employees against political viewpoint discrimination (not all states do this.) It would be a violation of his legal rights, and the rights in question protect his ability to speak freely, but the right in question is not granted by the First Amendment; I suppose there’s some pedantry to be had about whether this is in fact a violation of his “right to free speech.”

If you don’t support this right and you are a conservative or a libertarian, you are free to go about your business. If you don’t support it and you are a liberal, then you might want to think about turning in your card; liberalism has a long tradition of asserting that employees have rights vis-a-vis their employers, and surely the right to speak freely about political issues when not on the job would be one of the most crucial such rights.

4) If private individuals send death threats to Colin Kaepernick for kneeling during the national anthem, that violates his legal rights in basically all jurisidictions, but not his First Amendment rights. Again, we could get pedantic about whether the rights that protect his his ability to speak freely are in fact his “free speech rights.”

5) If the government punishes Colin Kaepernick for kneeling during the national anthem (or punishes the 49ers for letting him do so), that violates his First Amendment rights.  Obviously.

Unfortunately, the widespread misuse of the phrase “free speech” in regards to (1) by right-wing morons has led some liberals, especially those who spend a lot of time on Twitter, to insist that “free speech” should only be used in case (5). Which is bizarre from a historical standpoint; the term has been routinely used with regards to (4), (3), and sometimes even (2), by respected organizations like Reporters Without Borders, the National Coalition Against Censorship, hundreds of private universities that promise free speech to their students and faculty, not to mention a smattering of state and federal laws to protect free speech against non-government entities in some cases. In general, liberals have historically been the ones arguing for wider definitions of “free speech”, and conservatives the ones arguing for narrower.

A side note that doesn’t fit comfortably in the concentric model: Someone who demands that the government punish Colin Kaepernick isn’t violating his free speech rights; in fact, demanding that the government do that is itself protected speech. That does, however, make it fair to call that person an enemy of free speech.

~

I reposted the above in response to recent discussions of free speech norms.  I think the framework I described above evades the problematic “Doctrine of the Preferred First Speaker” – the answer is not to focus on what kinds of speech are protected, but rather, what kinds of punishment and prior restraint speech is protected from.  Protection from governmental coercion is especially important and protection from criticism by individuals is incoherent; but intermediate protections – protection from getting fired, protection from getting banned from monopolistic social media services, protection from getting mobbed and harassed on Twitter, and the like – should be areas of live debate.

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