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The Supreme Court recently announced a decision to throw out the conviction of a man who made very explicit, gory threats of bodily harm against his former wife. The threats were published on Twitter, and prosecutors held that a reasonable person would find them credible. The seven-member majority, however, threw out the conviction as a violation of freedom of speech, accepting the accused man’s argument that he hadn’t been serious: it was just a kind of therapy.

Limiting Free Speech

In central Pennsylvania, a vituperative letter to the editor was published that included specific advocacy of the overthrow and execution of the President of the United States. TheDaily Item was roundly pilloried for publishing it. The paper subsequently apologized for failing to excise the threatening language.

The well-known Supreme Court decision (Citizens United) of 2009 cites the right of free speech to justify rejecting any restrictions on expenditures in political campaigns.

These three cases raise the classic issue of the limits to free speech. “Your freedom to swing your arm ends at my nose,” is one way to put it. That is, any exercise of freedom that injures another, or interferes with the corresponding freedom of another, may legitimately be limited. Justice Oliver Wendell Holmes put it this way: “Freedom of speech does not include the right to yell ‘Fire!’ in a crowded theater.”

Each of the three cases exemplifies a tendency in today’s America to accept few, if any, limits on the right of free speech. The Court’s Citizens United decision argued that the ability of wealthy individuals or corporations to spend unlimited funds to disseminate their views does not interfere with the right of a poor person to free speech. The Court held to this position notwithstanding the obvious imbalance in the ability to be heard.

Similarly in the recent Twitter threat case, the Court virtually eliminated the ability to prosecute someone for mere threats, no matter how explicit. Again, the decision was to maximize the scope for freedom of speech, even if it meant terrorizing the intended target.

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These days one may say almost anything, and spend any amount to disseminate what one says. Those who are injured by such speech have only the remedy of their own freedom of speech.

Obviously, the case of the Pennsylvania letter would fall under the same principle, especially since the target was the President, not a private citizen.

In sum, these days one may say almost anything, and spend any amount to disseminate what one says. Those who are injured by such speech have only the remedy of their own freedom of speech.

Surely, in a society founded on the freedom of speech, we should be pleased. The government should not be allowed to control what people may say. Once we give up on that principle, the way is open to the kinds of tyranny against which our ancestors rebelled.

And freedom of speech is a two-way street: 150 readers of The Daily Item wrote to condemn the offending letter. Many said the paper should not have published it, but few would say that there ought to be a law against writing such a letter. There is the key distinction: the Item is not an agent of the government. It makes its own editorial decisions about what to publish or not publish. It’s not a question of law, but of how society maintains a viable community.

We are, each of us, unique individuals with (as the Declaration of Independence says) inalienable rights, including the right of free speech. Yet we are also, each of us, part of a community. Community cannot thrive when its members exercise their freedoms without consideration for others. Community requires forbearance. There will always be disagreements, and members of the community must be free to speak about them. But community members also have a responsibility to nurture the community by refraining from utterances that polarize and demonize one’s opponents, making no contribution to the resolution of conflicts.

No government can enforce this without being tyrannical. But no government is viable without a working community at its core. Building and cherishing that community, across the lines of conflict, is the task of each of us.

john peeler

John Peeler