U.S. Supreme Court justices are not supposed to say anything interesting outside of the Court, but in 2010 Justice Stephen Breyer was asked in a rare TV appearance if he thought a Florida pastor had a First Amendment right to burn a Quran.
First, Breyer cited the late Justice Oliver Wendell Holmes’ old line about not having the right to cry fire in a crowded theater. Then, he asked some interesting questions: What does that proverbial theater look like in our hyperlinked world? And what is our era’s equivalent of being trampled to death in that theater? As if remembering himself, he quickly added that the answers to such questions get defined in actual cases before the Court, over time (as opposed to on Good Morning America).
At the time, Breyer’s TV provocation was roundly denounced by all right-minded free speech absolutists (a club I frequent). But I have found myself thinking about his questions in the aftermath of two major events involving the cross-border repercussions of speech: the horrible attack on satirical French magazine Charlie Hebdo, and the hacking of Sony Pictures before the release of the sophomoric comedy The Interview.
If I am being honest, these are times when I find myself rethinking my free speech absolutism. (Wait, am I really free to say that?!).
The crowded theater is a meme in First Amendment law that is often invoked out of context and has been overtaken by subsequent, more expansive free speech rulings. Another First Amendment meme is the “marketplace of ideas”: Us absolutists like to say that all speech should be permitted so that truths can prevail in that aforementioned ideas market. A third important meme—the current constitutional test for whether the state can restrict speech—is that of “imminent lawless action.” In a case involving hateful Ku Klux Klan speech in the 1960s, the Court held that the government can only forbid speech that is intended to trigger imminent lawless action, and is likely to do so.
All of this would be easier to judge if speech could be contained within tidy territorial boundaries. But the Paris tragedy and Sony hack beg not only the Breyer question of what constitutes the “crowded theater” in this age of instant global communication, but also a redefinition of the marketplace of ideas, and of “imminent lawless action.” Should the expanding boundaries of our so-called theater or marketplace make us rethink what’s acceptable speech, because more lawless action can be more imminent in a more interconnected world?
Of course, there is nothing new about taking offense across borders at the speech of others, and taking action to stifle it. Think of Catholics across Europe seeking to silence early Protestant propagandists in the German states during the Reformation, Stalin hunting down Trotsky in Mexico City to silence his chief critic, or the theocracy of Ayatollah Khomeini issuing a fatwa to silence Salman Rushdie after the publication of The Satanic Verses. More recently, Denmark found itself in the crosshairs after a Danish newspaper published cartoons featuring the Prophet in 2006. And the online release of the anti-Muslim film Innocence of Muslims contributed to anti-Western riots in the Middle East. Google ultimately determined that it was prudent to block access to the film on YouTube in some countries.
What’s different in today’s world, as these recent cases illustrate, is the immediacy of all speech, no matter where it takes place. Indeed, several legal scholars argued that perhaps we should rethink the permissibility of releasing such offensive material as the Innocence of Muslims, bound as it was to trigger a violent reaction. It’s getting harder to draw distinctions, at least in terms of real-world repercussions, between uploading something onto YouTube in the privacy of your home and broadcasting that same content halfway around the world. It’s a very large crowded theater we operate in.
Back in my absolutist First Amendment club, this is an unsettling line of reasoning. As Americans we are understandably wary of watering down our liberties (including the liberty to offend one another) to conform to some international norm. If we are all going to coexist in one global market or theater that transcends borders, our traditional attitude has been that others will just have to develop thicker skins and relish the same liberties we enjoy. Deal with it, in other words.
That is a fine sentiment, but it’s easier to uphold as an abstract principle than in a context where lives are at stake. It also doesn’t account for the most pressing threats to free speech rights. While we devote a great deal of attention to the few life-and-death cases that require balance protecting speech with preventing its consequences, we fail to acknowledge just how often mundane commercial interests are already influencing content and speech across borders.
This reality comes up mostly when we talk about China, where media outlets like Bloomberg and The Wall Street Journal have been accused of pulling punches in their news coverage so as to not undermine their own corporate interests. Internet companies, for their part, are constantly wrestling with the dilemma of either playing in China under Chinese rules, or being shut out.
Hollywood studios are also intensely aware that the majority of moviegoers are now outside the United States, and that China will soon be their most important single market. Major studio productions are keen to alter plots in ways that please Chinese and other foreign audiences. In the midst of production, the 2012 thriller Red Dawn saw its menacing villains go from being Chinese to being North Korean, lest the studio poke the eye of such an important market. Who cares about the North Koreans, and what could they ever do to us anyway?
Now we know.
Speech has consequences, and we’re already seeing how more and more entertainment content is being produced with overseas consequences (or appeal) in mind. Should news and humor follow suit? And how do we feel now that, for all intents and purposes, the de facto guarantors, regulators, and potential censors of our speech are private companies like Google?
It is no longer the preserve of Justice Breyer and his robed colleagues to decide when we can offend each other, or cry fire in a theater. Indeed, like it or not, the day may soon come when it is no longer solely up to Americans to make the call of what can be said, even here in America.