^ Martin Luther. Modern notions of free speech and a free press — and of how they speak and press — begin with him
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We cherish these two principles, and we should. The Constitution guarantees the first, and the history of our civilization since Martin Luther’s time teaches us the second’s importance. Yet neither axiom is absolute. Allow me to assert and to explain; the assertions first.
Free speech sets forth the principle that people may voice their opinions, publicly, on all manner of topics, without risking reprisal by any government.People acting on their own, however, are perfectly free to express disapproval, even to shame the speaker. In other words, one has a right to speak but not to force anyone to listen.
Something similar is true for a free press. Our Constitution’s free speech clause protects the written or broadcast word just as it protects the spoken. Again : every medium may broadcast, or write, but no one is required to read or hear; and disapproval of what is pressed has just as much protection as that to which it responds.
There are limits. The common law recognized libel — defamation in writing — as an actionable tort, and equally it recognized slander : defamation by spoken words. One may not — as in a famous Supreme Court case — gratuitously yell “fire !” in a crowded theater, nor may one with impunity hurl so-called “fighting words” — racial or ethnic epithets the classic example — at people: you are protected to some degree when you fight back.
I think we all recognize the examples and principles enumerated above. Let me add a few other details to them :
Invention of the printing press enabled martin Luther and his opponents to wage a religious debate as universal as it was intense. We all stand in that debate’s wake. It made the printed word a staple of public discourse, indeed it created what we call “public opinion.” The printing press enabled the first English efforts to lobby Parliament — late in the reign of Queen Elizabeth, and it enabled the catholic counter-Reformation. Printed “broadsides” marshalled the two sides, monarchist and Parliamentary, that fought the 1688 Revolution (from whose anti-monarchist Declaration of Rights we took much of our own founding documents, including the original of our Second Amendment); not long after, such printed “broadsides” became regularly issued “news” papers — ancestors of the large-sheet newspapers that we know today.
It followed from the ubiquity of printed opinions — and from the sanction given them — that speech, too, had to be protected, supported, defended. : if a man could publish a “news” paper, he could speak his “news” in a public place. In the early 1500s, publicly speaking against the King was everywhere as dangerous as to write against him; one risked prosecution and mutilation, imprisonment, even death.By 1700, England was free of it; on the Continent, not for another 100 years — or more; but eventually, everywhere. The printing press made freedom to speak or write unstoppable.
People of the 20th Century took it as given that not to enjoy freedom to speak or to publish (subject to the few important exceptions mentioned) was an intolerable grievance. We too take it as given. This in spite of recent developments that call the two basic freedom principles to defend themselves : by which I mean ( 1 ) the rise of “fake news” and its publication, unregulated, on the internet and ( 2 ) the persecution, even the murder, of journalists by many governments using latent executive powers because they can.
The first, we abhor but have difficulty responding. The second, we seem to take as normal.
Persecution of journalists takes us back to the days of Martin Luther, when the two sides in that religious struggle refused to accept their opponents’ right to publish, or to hold, opinions they considered heretical. So opposed are today’s two sides — liberal and tolerant versus nationalist and exclusionary — that neither can grant the other space to publish or argue.How can they ? Each side views the other as a mortal enemy. Unfortunately, we find that freedom of the press and of speech have an additional limitation that we seldom think of : implied in these two guarantees is that he who publishes, or speaks, does so with good will and that what he (or sh0 says or publishes may have some validation.
It is hard to grant good will to an opponent when that opponent doesn’t grant it to you, when he or she in fact goes out of his or her way to vilify you and demonize you and to damn you. It was well and good for Voltaire — exemplar of the age called “Enlightenment” — to famously say “i may not agree with what you say, but i will defend to the death your right to say it”; but when your opponent goes out of his or her way to find those ideas that you cannot tolerate — including bigotry in all its ugly, fighting word heads — and to extol them, what option do you have but to fight back ? Tolerance does have its limits, as do most moral axioms.
“Fake news” poses a different problem : is there freedom to lie ? A legally guaranteed freedom ? Libel and slander principles say “no,” there is no such freedom. But what if a significant number of people who hear a fake new item believe it : do they have a right to believe it ? Here we enter a different doorway. To me, religions are not attributively different from fake news. Is there a God ? Does a God make rules that people must worship or obey ? Many many people believe these things, despite that proof there is none (and the great theologians have never argued that there was any empirical proof); and our Constitution protects the freedom to worship a God as strongly a sit protects freedom to speak or publish opinions or news. So : how are we to craft a principle that will condemn fake news but not compromise freedom to worship a God ?
You may want to say, fake news claims veracity for events capable of empirical evaluation; religions make no such claim and so are easy to exempt from condemnation of fakery. If only it were that simple. Who of us has the time or knowledge to judge the veracity or not of a news item ? At some point we have to accord news reports belief, or disbelief, without having “all the evidence.”
Or, you may say, most of what we call “fake news” is so clearly fake, so absurd, that no one with any brains in her head would believe it. Example : the election story that Hillary Clinton was running a child sex ring out of a Washington, D.C. pizza restaurant. Who would believe such cockamamie stuff ? Fact is, many many people did believe it. In that case, the story became such big news that actual journalists investigated and proved it untrue., How many less lurid but equally fake, less visible stories sucker the credulous ? Probably a lot. Fakery is the stock in trade of talk show hosts, who say outrageous — ridiculous even — things to attract attention and thus reap big ratings and pay checks. Are talk show hosts not protected by the First Amendment ?
Because there is no practical way for our society to make good its fully justified condemnation of lying — because it is impossible to enunciate a Constitutional principle which will outlaw falsehood, people are left to their own devices trying to gauge what to believe or not. Here, evidence competes with the will to believe.
Thus the stage is set for a President to condemn our mainstream journalists as liars and to have a significant number of people believe him. After all, if reports assert events that contradict what people want to believe, belief inside one’s mind bests events from outside it. How not ? Think of the many times that you have learned things that at first hearing you found incredible.
Into this battle of mutually exclusive skepticisms comes the journalist. I am a journalist. I, like my fellows, insist that it is my duty to report what I observe, what I know at first hand, and to assert my witness of it. It is equally my duty to criticize actions taken, or opinions voiced, by powerful people that I find abhorrent, or dangerous, or mistaken, or all three. It is my duty to you my reader and to my society at large. For bearing witness to truths is as ancient a social commitment as nay of the freedoms mentioned in this column — more ancient, even. More books of the Bible that my ancestors wrote are books of witness — of prophecy, because witness is what prophets did — than of any other type, and how not ? A society needs its critics, to set it right after going a stray (in whole or in part), and journalists do for our society what the prophets (including Jesus of Nazareth) did for my ancestors 2000 years ago and more. We stand in their shoes. And we will do our duty to our society no matter who of the powerful does not like to hear or read it.
—- Mike Freedberg / Here and Sphere