The Neutral Zone of Free Expression

The Neutral Zone of Free Expression, what is it?

A Neutral Zone is a sort of “buffer zone“, or “No Man’s Land” that lies between the boundaries of two or more territories or areas. When talking about “Our Rights”, the “Neutral Zone of Free Expression” is the “Grey Area” between the rights of two or more people or groups. This is the area where conflicting rights meet head on and interfere with each other.

In this article I would like to touch upon the subjects of “Free Speech” and “Free Expression”, I would also like to discuss some aspects concerning why ‘Free Speech isn’t always Free” and use the situation of “Removing Holocaust-deniers pages from Facebook” as a prime example. I also wish to write a little about Brian Cuban and his fight to have these ‘hate groups’ removed from Facebook. Let’s begin with Brian Cuban.

The Plight of Brian Cuban

Today I read Brian Cuban’s the latest entry in his notes on his Facebook page. The entry was entitled “A Final Word (for now) On Holocaust Denial” and is a part of the on-going issue of ‘removing holocaust-deniers pages from Facebook”.

In the opening paragraph Brian stated:

“It has never been my intention to minimize the “idea” of free speech in the Facebook realm regardless of the actual application of the 1st amendment. I value the concept of the free and open exchange with every bone in my body. I also understand that FB is attempting to shape its policies to mirror 1st amendment ideals to encourage “free speech”. This is commendable.”

I feel compelled to comment upon this comment because I have been reading Brian’s articles and commentaries for over a year now and I firmly believe that he is one man who “never intended” to “minimize the idea of Free Speech” in any way, whether the comments he made concerned Facebook or any other social site on the Internet. I believe Brian actually values the concept of “Fee and Open Exchange”, perhaps he values it even more than I do. Furthermore I believe Brian feels that FB does make the “attempt” to ”shape its policies to mirror the 1st Amendment ideals” in order to ‘encourage Free Speech” and he doesn’t intend to make it seem as if Facebook is some evil entity hell-bent on destroying ‘the rights and freedoms” of it’s membership in some on-going pursuit of some deep, dark Facebook agenda.

I have no doubt that Mr. Cuban is as concerned about our rights and freedoms as I am and it bothers him how some people out there utilize such honorable ideas as “The Freedom of Speech” and “The Freedom of Expression” as a protection to spread their own agenda of hatred, intolerance and warped sense of justice. It may also bother Brian that so many people who were born and raised in America, educated in our schools, and lived in this country their entire lives are unaware o f what our rights and freedoms truly mean.

Brian seems knowledgeable about our rights, as well as the responsibilities that goes along with our rights and freedoms. This knowledge is shown when he states:

“There however is a fundamental difference in how Mr. Zuckerberg and I view this idea. To overuse a cliche, while we have free speech in this country, not all speech is in fact free. Certainly not hate speech.”

Over the years I have heard many people “cry” and moan about their ‘rights’ being violated through censorship, but in almost every case it is never mentioned that others have rights as well. It never seems to enter the person’s mind that something they have said may conflict with the rights of another. It is evident that Brian is well aware of this fact and understands that “Free Speech” really doesn’t mean we have the right to say anything we wish at any time we want.

I am under no misconceptions here, Brian and I probably could have lengthy arguments over what the First Amendment covers and what it don’t. We could walk away from our discussions never agreeing with each other on particular issues, however I feel confident that Brian would understand the fact that a person doesn’t have the right to ‘say anything they like” without the possibility of some repercussions in return. I am positive that he would understand the fact that along with our rights and freedoms comes a responsibility.

The Problem With The First Amendment

The problem with the First Amendment to the U.S. Constitution provides “every citizen of the U.S.” with the “Right” that our founding fathers called “The Freedom of Speech”. In the years since the signing of the U.S. Constitution and the passage of our Bill of Rights, the courts widened the meaning of the term “Freedom of Speech” to include the things that became known as the “Freedom of Expression”. In addition, regardless of exactly whom our founding fathers originally felt held these rights, it has become accepted by law that “every U.S. Citizen”, at least those who are “Adults”, can and will enjoy these rights. Some argue that anyone within the borders of the U.S. enjoy these rights that the citizens of our country enjoy.

America today has a projected population of 306,429,890, we can assume that approximately 200 Million of those people are “Adults”, or of the age of majority, and enjoy the full and equal rights of an adult citizen of this country. This means that:

The rights and freedoms of the Christian Fundamentalist are just as important as those of the Atheist.
The rights and freedoms of women are equally important to that of men.
The rights and freedoms of the minority are equal to that of the white man.
The rights and freedoms of the Homosexual is no less than that of the heterosexual
The rights and freedoms of the young are as important as those of the elderly.

We also should bear in mind that the opposite of what is said above is true.

The rights and freedoms of the Atheist is just as important as those of the Christian Fundamentalist.
The rights and freedoms of men are equally important to that of women.
The rights and freedoms of the white man are equal to the rights of the minority.
The rights and freedoms of the Heterosexual is no less than that of the homosexual
The rights and freedoms of the elderly are as equally important as those of the young.

In short, no person’s rights in this country outweigh that of another, with a few exceptions of course. I’ll discuss that later.

So what happens when we enter the Neutral Zone of Free Expression, where the ‘rights’ of one conflicts with that of another? Whose rights outweigh whom?

I think these questions are things that people like Brian Cuban struggle with often because they know the importance of our “Rights” and “Freedoms” and they understand what is at stake if we abuse these things (or aren’t willing to stand up and protect them). So without further adieu, I discuss this issue of “Free Speech” and “Our Rights”, I welcome Brian (or anyone else for that matter) to consider the concepts that follow and analyze the ideas for whatever value they can get out of the information.

What is The Freedom of Speech?

The Freedom of Speech is a right that the majority of Americans know about, but not everyone understands. You can see their lack of understanding in the words they say. So let’s begin by discussing the First Amendment, especially the “Freedom of Speech”.

According to the First Amendment to the U.S. Constitution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The “Freedom of Speech” is the freedom (or right) to speak freely without censorship or limitation, however over the years the courts broadened the term to include verbal, non-verbal, visual and symbolic forms of “Expression” as a part of our “First Amendment” rights. This became known as the “Freedom of Expression”.

Exceptions to the First Amendment

The freedoms (or rights) granted to us by the First Amendment, in the United States, are not “all encompassing”. There are certain “Exceptions to the First Amendment” that are recognized by the courts which ‘limit” or “censor” our “Freedom of Speech”.

The justification often used by the courts is usually along the lines of “the expression in question could cause substantial harm to the public” or “the expression in question is considered as speech that the Founding Fathers could not have intended to protect”. There are also, traditions that have been a part of the old common law traditions from England, which was the basis of our American legal system, which have also been used as a part of the justifications used by the courts. These are some of the “Exceptions to the First Amendment” that the courts uphold today:

(1) Defamation: Defamation consists of a publication of a statement of alleged fact which is false and which harms the reputation of another person.
(2) Causing panic: False statements that may cause a panic, such as shouting “fire” in a crowded theater.
(3) Fighting words: “Fighting Words” are words that by their very utterance inflict injury or tend to incite an immediate breach of the peace.
(4) Incitement to crime: It is a crime to incite someone else to commit a crime, such as inciting a crowd to riot.
(5) Sedition: It is prohibited to advocate unlawful conduct against the government or the violent overthrow of the government.

Other items that may be viewed as “Exceptions to the First Amendment” includes:

(A) Obscenity: What we may consider as “Obscenity” may not always be viewed as “Obscene” in a court of law. The U.S. Supreme Court has established a three-pronged test for obscenity prohibitions that would not violate the First Amendment:

(a) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
(b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
(c) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

(B) Establishment of Religion: Some speech is restricted because it constitutes the establishment of religion, which is itself prohibited by the First Amendment to the U.S. Constitution.

Is “Offensive Speech” an exception to the First Amendment?

It has been argued that offensive speech or expressions should be an exception to the First Amendment, however the US Courts have rejected this idea. It has basically been decided by our courts that we, as mature adults, are expected to have to put up with a certain amount of things that we may not care to hear and that everything shouldn’t have to be regulated by law.

Philosophy and the Freedom of Speech

John Stuart Mill, an English Philosopher, stance concerning the freedom of expression and the government in 1859 provided a test for appropriate government interference with human liberties. This is found in his well-known “harm” principle:

. . . the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.

The Problem With Facebook

The problem with Facebook, as with most forums or social sites on the net today, is the fact that these places want to be ‘popular’ and in order to be ‘popular’ they have to appeal to the general public. Popularity of a site is an important thing to most site owners because the more popularity your site has, the more it can bring you things such as wealth and fame (It’s good for stroking one’s ego, but I won’t get into that for it may sound “insulting”.)

The best way for any message forum, chat room or other social site to be popular is to allow the illusion that these places are ‘democracies’ which allow the members of the sites to have such ‘rights’ as ‘the freedom of speech’. The problem is that these forums are not really democracies at all, in fact most are ‘Benevolent Dictatorships”. As Brian Cuban stated:

“The prorogation of 1st Amendment ideals in the private realm is a two way street. People have the right to express their opinions, FB as a private entity has the right to choose not to publish them. These types of decisions are made in newspapers and other media all over the world.”

Brian is absolutely right in this, “Facebook” pays for their site and they are held (by law) to do certain things… but for the most part they are a private entity that allows people to join and use the services they offer. This basically means that ‘Our First Amendment Rights” are null and void on their system and in it’s place are “Rules and Guidelines for the site”. Facebook, however, does make the attempt to provide us with some of our ‘First Amendment Rights’ and that is commendable (as Brian stated earlier in his article).

Finally…

In brief I have shown what the “Freedom of Speech” and “Freedom of Expression” are, I have also shown where there are “Exceptions to the Freedom of Speech” that are accepted by the courts. In addition it has been shown where Facebook is a private entity and isn’t obligated to provide its members with our First Amendment rights. It’s been said that the attempt to provide Facebook members with the “Freedom of Speech”, or a form of it, is commendable. Additionally it’s been stated that these “Holocaust-deniers’ are mostly interested in spreading their agenda of hate and hate speech is something frowned upon by the laws of various countries and Facebook itself.

So what’s the problem?

In any society there must be a set of rules which everyone who is a part of that society are expected to follow. These rules are set up for various reasons, most of which are for the purpose of maintaining peace and tranquility within the communities that arise within that society. If we do not set the rules and enforce those rules when required, we end up with a chaotic state where everyone is doing their own thing. This chaotic state usually ends up with disharmony and disruptions within that society that could result in simple arguments or expand into more serious trouble stemming from rage.

In what some refer to “The Real World” our words are often tempered with the fact that we are in close proximity to others who may not react well to what we say. The intelligent, reasonable person tends to pick and choose their words in order to avoid unpleasant or dangerous situations. Of course there are plenty of instances where people do not do this, however (as I said) “The intelligent, reasonable person” picks and chooses their words.

The Internet is a place that can be just as dangerous as the real world, but is often shielded by such things as the “anonymity factor” and ‘feeling safe through distance”. Many people on the net become less careful of the words they say because they simply feel that no one knows who they are, and even if they did the odds are in favor of nothing serious happening in response to the words being said. The mere fact that a single site on the Internet can reach millions of people and there is little in the way of personal danger to the person gives rise to the willingness of trolls and hate groups voicing their opinions as they wish. Spreading misconceptions about our freedom of speech and freedom of expression act as tools to protect the harassment and hate-mongering factor.

Some people on the net will ‘test’ the authority of site owners through various means, they will even go to the extent of creating blogs that do nothing but denounce the site and make claims of the staff and management of the site ‘violating our rights’. This doesn’t take away the fact that it is the site owner’s responsibility to control their site and try to keep things ‘civil’ for all of their members to enjoy.
When a site announces a policy of providing ‘the freedom of speech’ and ‘the freedom of expression’ to it’s members then the people making the decisions must either understand what these terms mean or write up their own definition for the terms and place that definition in the terms that their members agreed to follow. Site owners and those responsible for moderating the site should avoid using ‘blanket terms’ without a set definition for those terms. That only breeds confusion and chaos amongst the members of the site.

Facebook needs to take a stance on this issue and quit playing with terms of vague meanings. They need to avoid using terminology that can have different meanings to different people and say outright exactly what they mean by such terms as “The Freedom of Speech”, “The Freedom of Expression” and “Our First Amendment Rights”. Facebook would benefit greatly by not catering to ‘hate groups’ and ‘net abusers’ who wish to use our rights and freedoms as a shield for spreading their poison.

Principle Source:


Freedom of Expression at the National Endowment for the Arts

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