Writers employ a broad variety of literary devices to tell their stories. Alfred Hitchcock, for example, often employed a device in his stories, that he called a McGuffin. McGuffins were items that were treated as quite important, papers of a secret nature in a spy thriller, or a brief case, for example. The items are only important, however, because those in the story treat them as such. Hitchcock often did not reveal what a particular McGuffin actually was. It might have been plans for a bomb or photographs of a delicate nature. His McGuffins simply served as a point of focus for plot development.
Another literary device comes to my mind today, the lost memory. Many versions of the lost memory have served writers as they tell stories. A lost memory allows a springing surprise. A lost memory can be used to teach. My two favorite uses of the lost memory device are found in an episode of Twilight Zone and an episode of the original Star Trek.
A different, and longer, lost memory is at the center of "The Omega Glory" episode of Star Trek. In the episode, the
Captain Kirk and company, beaming down to the planet, find themselves in the midst of an extended war between the Yangs and Khoms. In captivity, Kirk uses the word, "freedom." When he does, one of the Yangs objects to his profane use of a Yang worship word.
Is the lost memory tickling your mind yet? Ultimately, Kirk discovers one of the Yangs' most revered and treasured ancient documents. He reads from it, and we discover that the Yangs are some sort of parallel universe descendants of an alternate
In episodes like "The After Hours" and "The Omega Glory," Serling and Roddenberry show that they realize the danger of forgetting from whence we come and who we are. These are important concerns, although their importance may depend, substantially, on those from whom we have descended. Here in
I think Serling and Roddenberry hoped that their fascinating little tales would serve to keep us from losing something important. Unfortunately, media reporting and commentary this week on an event this past weekend leads me to be concerned that a destructive amnesia holds sway over our collective American consciousness.
Yemeni affiliates of al Qaeda claimed responsibility for the murderous rampage targeting Hebdo's Parisian office. Lest the murderous rampage of radical Islamists be forgotten, I include with this post an exterior photograph at the offices of Charlie Hebdo, showing crime scene investigators collecting evidence after the attack.
In the aftermath of the
Moving from the electronic outlets of traditional journalism to the murkier end of the Internet, the name-calling gets heavier. Gothamist carried a commentary referring to Geller as "a notorious right-wing demagogue who has made a career out of stoking the Islamaphobic fears of Archie Bunker America." The Southern Poverty Law Center calls Geller an extremist. Yes, it can get worse, and it does. Plenty worse things are being said about her. If you are surprised that at the harsh names coming from news media and journalist, perhaps you haven't followed the descent of main stream media into a sewer of liberal bias.
Geller's decision to hold an event that she knew would be a likely source of offense marks her as an ideologue. What has made her so? Simply put, she has been transformed by the terror attacks on September 11, 2001. In the aftermath, Geller has devoted herself to warning of the dangers of radical Islam.
Her efforts have been relentless. She appears in media regularly. Geller publishes blog posts. She has even written a book drawing connections between the rise of radical Islamic terror and the laissez-faire approach of the Obama administration to the Muslim Brotherhood and other militant Islamic radicals.
Geller seeks to focus the hot laser beam of public attention on what she considers to be the most dangerous threat to
In my experience, ideologues are, quite often, not terribly nice folks, not the kind of folks you invite to have tea and cakes when your elderly grandmother will be joining you for the day. If you think, though, that Geller is somehow different, more disturbing, more offensive than all the malcontents whose speech activities provide the backdrop for most of our great American doctrines on freedom of speech, then this entry is offered to dispel your delusion.
Faux Revulsion: The Limited Sensibilities of American Media to Offensive Portrayals of Religion and Religious Figures
Based on the bizarrely shocked reaction of media mavens to the Draw Mohammad event -- many of them were shocked, I tell you, shocked -- it is worth looking at the rather selective manner in which media bridles at speech offensive to religionists. It is also a good time to revisit First Amendment principles at stake in Geller's cartoon event.
Let's start with Charlie Hebdo. Perhaps it is unfair to pick on dead men, but Mohammad wasn't the only target of their childish, churlish lampooning of religion. I won't reproduce the cover here, but Hebdo portrayed the Trinity as a ménage a trois, an image you can see here. Oddly, during the press coverage following the massacre at Hebdo, the satire magazine's ongoing practice of revolting portrayals of Christ was never mentioned.
Poking fun at things, even religious things and religious people isn't an American thing. Probably it's a human thing. This week’s news also carried word of five Coptic teens being tried for profaning Islam because they made a video poking fun at ISIS (brave lads, since
Back here in the
Or, perhaps you'll recall when Pope John Paul II called on Catholic faithful to hunt down and kill gay men that dressed as nuns, engaged publicly in lascivious behavior, and such?
Of course you don't remember that happening. That's because, even with a fatwa being issued against Salmon Rushdie by
The truth is that attacking religion has been a long-standing staple in American media, going back to when the only picture in town was the editorial cartoon. These two samples are just lovely.
As a final offering, we should not forget the Vatican Rag, composed by comic lyrist Tom Lehrer. Here's a particularly respectful selection:
So, please, NBC, CBS, ABC, Washington Post, New York Times, CNN, MSNBC, Fox News: shut up with your pretense of sensibility. You've dragged our sensibilities through every low end of life that served your purposes. We don't buy your re-virginized delicacy.
The True Purpose of the Constitutional Protection of the Right to Freedom of Speech is to Protect Speech that is Disagreeable, Offensive, Disturbing
Now as to that First Amendment about which reporters scream but news readers don't seem to care, let's start by laying down a fundamental principle. If you do not grasp this principle, then you will miss one of the true distinctives of American polity.
The First Amendment rights to freedom of speech and freedom of the press do not exist for the protection of birth announcements and friendly street-side greetings of passersby. "Fine day?" "Beautiful weather!" "Lovely baby!" These social lubricants require no special countenance or protection. Although many Americans may have lost their grasp on such niceties, that loss does not mean that anyone is targeting pleasant people for suppression of their views.
The First Amendment, while it does protect the inconsequential exchange of pleasantries, has a core purpose of protecting strong views starkly stated against stern opposition. I can prove this point out of the cases interpreting the First Amendment, and will do so in subsequent paragraphs. For now, just take stock of this key concept: the First Amendment rights of expression exist to guarantee the expression of unpleasant, unwanted speech.
I have written about this core purpose of the right to freedom of speech in connection with the recent incident at
Subsequent to that posting, it appears that Eric Sheppard has gone on the lam after it was discovered that he brought a concealed weapon to campus. Despite the cause of his having skipped town, there is now an "internet challenge" in "his honor." The Eric Sheppard challenge invites participants to show their support of for Sheppard by filming themselves stomping on the American flag. A quick search on YouTube shows that the calls has gotten some responses, though perhaps it is a good sign that there aren't hundreds of such videos ... yet.
I have seen threats of physical harm posted in response to some of these images. Yet, the First Amendment protects these expressions of disdain and hatred of this nation from suppression by federal and state governmental actors. The Supreme Court put it this way:
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
v. Johnson, 1989. Texas
As a general matter, we have indicated that, in public debate, our own citizens must tolerate insulting, and even outrageous, speech in order to provide "adequate ‘breathing space' to the freedoms protected by the First Amendment." Hustler Magazine, Inc. v. Falwell. See also e.g., New York Times Co. v. Sullivan. A "dignity" standard, like the "outrageousness" standard that we rejected in Hustler, is so inherently subjective that it would be inconsistent with "our longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience." Hustler Magazine.
In a gentler time, the use of the word, “fuck” in public was punishable as a criminal offense. Today our culture may still frown on such language, but the Supreme Court has turned away prosecutions based on such language. In Cohen v. California, the Supreme Court overturned a conviction of a young man for “offensive conduct.” That conviction followed his arrest for wearing a jacket with the message, “Fuck the Draft” emblazoned on it. Cohen wore the jacket in a local courthouse.
So, let’s look at what kinds of offensive expression have been shielded by the First Amendment from governmental suppression or punishment. I address that in some detail below, but briefly, speech that offends others is almost always protected against suppression when the reason for suppressing it is the fact that it does, or is intended to, cause offense. So regardless of personal pain and indignity caused, the First Amendment protects things like
- burning flags,
- drawing ribald cartoons portraying a religious icon in an unflattering and comprised positions,
- casual conditional threats against the president,
- discussing the idea of communist or socialist revolutions here in America,
- speech and symbolic speech that antagonizes minorities such as Jews and blacks.
Conditional threats to shoot the President
During the Vietnam War escalation by President Johnson, Robert Watts, then 18 years old, stated that if he was drafted into military service, the first person he wanted to get into the sights of his rifle was the President. Threatening the life of the President is a federal crime. Yet, in Watts v.
agree[d] with [
Watts] that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.
Mere advocacy of criminal conduct:
Brandburg, a member and leader of an Ohio Ku Klux Klan organization, gave a speech at a Klan rally. News media covered the speech. Brandburg decried what he perceived to be the decline in American culture. He spoke of the possibility of future acts of "revenge."
Provocative speech that might breach the peace:
The Supreme Court overturned Terminello's conviction. The Court stated that a key
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, 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.
Speech supporting the Communist Party:
Under a law much like the Ohio Criminal Syndicalism statute in
As I explained in the previously mentioned blog post, "[i]n two separate decisions, Texas v. Johnson (Texas statute prohibiting flag burning) and United States v. Eichmann (federal statute prohibiting flag burning), the Court -- while recognizing that such acts are profoundly offensive to many -- concluded that the expressive elements often present in acts of protest that destroy our National standard warranted protection from GOVERNMENTAL interference in the form of a flag burning prohibition." The Court understood that vandalism of the flag was highly offensive, but still concluded, "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.  Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering."
Parading through a Jewish community dressed as Nazis:
Millions of Americans fought, and about a half million Americans died warring against the Socialists of Nazi Germany and
Targeted Hate Speech:
Although the Supreme Court affirmed the trial court's conclusion that prosecution of R.A.V. had to be dismissed, no majority of the Court joined in an opinion adopting a controlling rationale. Nonetheless, the rule from R.A.V. prohibits creating a bias based crime under the Constitution, thus leaving individuals free to burn crosses, at least in certain circumstances.
Speech that inflicts emotional distress:
There are times when individuals, even families, are particularly fragile and prone to harm. At the time of a death in the family, the funeral and burial, that fragility is unsurprisingly heightened. A virulent pustule -- the
In response to the offensiveness and hurt that such picketing inflicted on the family of one soldier, the grieving father sued Phelps, his daughters and their church under state personal injury laws. A trial jury awarded millions in compensatory and punitive damages to the grieving family. In Snyder v. Phelps, the Supreme Court overturned the jury verdict.
Relying on its own prior decisions, the Court explained “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Here, the display of signs celebrating the war death of an American soldier occurred close to the route of the Snyder funeral procession. Phelps & Co., however, conducted their demonstration on public property typically associated with the right to demonstrate and picket.
Reaching its decision overturning the damages judgment, the Court explained the danger to expression bound up in juries being invited to assess damages based on notions of offensiveness of speech:
In United States v. Alvarez, in 2012, the Supreme Court held that the Stolen Valor Act was unconstitutional. Alvarez had been convicted by a federal trial court for the Stolen Valor Act violation because he publicly misrepresented that he was a recipient of the Congressional Medal of Honor, our Nation's highest military award.
Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet fromDefending the Stolen Valor Act, and seeking to reinstate Alvarez's conviction, the federal government argued that the Court should respect the significance to the system of military service in the
Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005.
Faux Offense in the Media Might Just Be a Case of Curable Stupidity
Chris Cuomo, the CNN news reader, had barely gotten out of his last gaffe (where he demonstrated his woeful ignorance of the Declaration of Independence’s assertion that our natural rights come from God), when he felt the need to chime in on Twitter regarding the Geller event, the failed Radical Islamist attack in Garland. His tweet:
Cuomo, who graduated from law school, should have known better. The law is subtle and nuanced. If he had simply said, "sometimes, in special circumstances, hate speech might not enjoy constitutional protection," he would have been closer to truth. And, being closer to the truth, he might not have suffered such thorough vilification.