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Free Speech Just Isn’t That Complicated

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Ban Censorship (RGBStock)

It’s hard to believe we need to have this conversation in this day and age. But if we don’t keep having it, at some point we might not be allowed to have it.

Question: What is free speech? Or, rather what is NOT free speech?

In 2017, former Vermont governor,  presidential candidate, and Democratic National Committee Chairman Howard Dean informed the American public that “[h]ate speech is not protected by the first amendment.”  That’s one variation of the “hate speech is not free speech” claim.

Yes, “hate speech” is free speech (and yes, it’s protected by the First Amendment).

On July 12, speaking at a White House “social media summit,” President Donald Trump opined that “free speech is not when you see something good and then you purposely write bad. To me, that’s a very dangerous speech, and you become angry at it. But that’s not free speech.”

Yes, calling something “bad” that Donald Trump calls “good” is free speech too (and yes, it is also protected by the First Amendment).

This  shouldn’t even be an “issue.” It’s just not that complicated, folks. But for some reason we’re still MAKING it complicated.

Ever since the framers enshrined freedom of speech in the Constitution, Americans have struggled with what, if any, limits can be legitimately placed on that freedom.

The law and the courts have carved out limited exceptions for things like speech “directed to inciting or producing imminent lawless action,” “true threats of violence,” and knowingly false speech aimed at defaming a person’s character or defrauding others in a commercial sense (e.g. “I’m selling you one ounce of gold” when it’s actually one ounce of lead with gold paint on it).

There are plenty of reasonable arguments to be had about what, if any, exceptions to unfettered freedom of speech might make sense.

But when it comes to matters of opinion,  the only reasonable position is that you’re entitled to have opinions, and to express them, period.

Even if Howard Dean thinks they’re “hateful.”

Even if Donald Trump thinks that he’s “good” and that you’re making him look “bad.”

Even if they make someone feel angry or, to use the latest non-specific catch-all complaint, “unsafe.”

We don’t have to agree with others’ opinions. We don’t have to like the manner in which others express their opinions. We don’t even have to listen to other people when they express their opinions. But we don’t get to stop them from expressing their opinions. Not even if we’re Howard Dean or Donald Trump.

In anything resembling a free society, that’s just not negotiable. And no politician who argues otherwise should ever win an election to the position of dog-catcher, let alone governor or president.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

Op-Eds

Did Jeffrey Epstein “Belong to Intelligence?”

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Free Stock Photo from MaxPixel

In 2008, billionaire asset manager Jeffrey Epstein’s lawyers negotiated a very favorable plea bargain in Florida, under which he served a mere 13 months in jail — in his own private wing, with 12 hours of daily “work release” — on a single charge of soliciting prostitution from a minor (the FBI had identified 40 alleged victims of sexual predation on his part).

Epstein’s in jail again, this time in New York, on charges of sex trafficking and conspiracy to traffic minors for sex. Again, prosecutors allege at least 40 victims.

A prospective 41st casualty of the case, perhaps not an undeserving one, is Alexander Acosta. As US Attorney for the Southern District of Florida, Acosta negotiated that sweetheart 2008 plea agreement. Now he faces calls for his resignation as US Secretary of Labor.

How did the plea agreement come about? For an easy explanation,  look to a (supposed) exchange between F. Scott Fitzgerald and Ernest Hemingway in the 1920s:

Fitzgerald: The rich are different from you and me.
Hemingway: Yes, they have more money.

More money buys more formidable lawyers (in Epstein’s case, Alan Dershowitz and Ken Starr). More money usually means friends with more money, and with the influence that goes with having more money. It’s just a fact of life that more money sometimes means getting away with — or at least getting off easier for — things would put you or me in jail for a long, long time.

But another possibility rears its ugly head. In an article for The Daily Beast, investigative journalist Vicky Ward quotes a former senior White House official, in turn quoting Acosta’s response to questions about Epstein during his interview with President Donald Trump’s transition team:

“I was told Epstein ‘belonged to intelligence’ and to leave it alone.”

Yes, we’re getting that quote at third hand. Unfortunately, yes, it sounds plausible.

Suppose you were a wealthy and influential man with wealthy and influential friends — not just celebrities, but business moguls and politicians — from around the globe.

Suppose you held wild sex parties on your private island and invited those wealthy and influential friends, even ferrying some of them to the island on your personal Boeing 727 airliner.

Suppose those wild sex parties included the presence, voluntary or coerced, of  young (perhaps illegally so) women.

That’s pretty good extortion material, isn’t it?

Now suppose a government intelligence agency offered to protect you from prosecution for your escapades — perhaps by leaning on a federal prosecutor to make the matter go away with minimal punishment —  in return for that extortion material?

Is that how things happened? Your guess is as good as mine. But if so, it would be far from the first time that innocent men, women and children have been sacrificed to the false idol of “national security.”

Since World War Two, the United States has built itself into a “national security state” which recognizes no ethical or legal constraints. It’s doesn’t exist to protect the American public. It exists to protect itself. And, too often, it protects the predators among us.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

Op-Eds

Photo ID is Obsolete and Unnecessary. Facial Recognition Technology Makes it Dangerous.

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California ID card, public domain
California ID card, public domain

In mid-May, San Francisco, California became the first American city to ban use of facial recognition surveillance technology by its police department and other city agencies. That’s a wise and ethical policy, as a July 7 piece at the Washington Post proves.

Citing documents gathered by Georgetown Law researchers, the Post reports that at least two federal agencies, the Federal Bureau of Investigation and Immigration and Customs Enforcement, have — for years — mined state photo ID databases to populate their own facial recognition databases.

To put a finer point on it, those agencies have been conducting warrantless searches, seizing private biometric data on the entire population of the United States, most of whom are neither charged with, nor suspected of committing, a crime.

They’ve conducted these fishing expeditions not just without warrants, but absent even the fig leaf of legislation from Congress or state legislatures to lend supposed legitimacy to the programs.

The Post story, intentionally or not, makes it clear that Congress must follow San Francisco’s example and ban use of facial recognition technology, as well as repeal its national photo ID (“REAL ID”) scheme, and require federal agencies to delete their facial recognition databases. The states should either lead the way or follow suit by doing away with government-issued photo identification altogether.

Photo ID has always been marginally useful at best. Anyone who’s ever worked at a bar or liquor store knows that it’s unreliable on a visual check — and that its uses have been stretched far beyond its supposed purposes.

The most common form of photo ID is the driver’s license. States imposed their licensing schemes on a seemingly justifiable pretext: A driver’s license proves that the driver whose photograph appears on it has taken and passed a test demonstrating safety and proficiency behind the wheel.

There are ways to do that without a photo.  Three that come to mind are a fingerprint, a digitized summary of an iris scan, or a similar summary of a DNA scan.

Yes, those methods are more expensive and impose a slightly higher burden on law enforcement in identifying a driver who’s been pulled over or arrested (and on anyone else who wants to confirm an individual’s identity). But they’re also far more reliable and less easily used in pulling police-state type abuses like those described in the Post story. They can’t be used for easy warrantless searches via distant cameras.

In recent decades, and especially since 9/11, the conversation over personal privacy has revolved around how much of that privacy “must” be sacrificed to make law enforcement’s job easier.

The answer to that question is “none.”

It’s not an American’s job to make law enforcement’s job easier. It’s law enforcement’s job to respect that American’s rights.

Since law enforcement has continuously  proven itself both unwilling and untrustworthy on that count, we need to deprive it of tools that enable that unwillingness and untrustworthiness.

Photo ID is obsolete and unnecessary. Facial recognition technology makes it dangerous. Let’s take those tools away from their abusers.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY