Number One

The Supreme Court has certainly received a lot of attention lately: hearings, pending decisions, leaked drafts and partisan splits.  We tend to focus a lot on partisan splits, but 9-0 unanimous decisions occur more often than 5-4 and 6-3.  And those are just announced decisions.  I suspect they are also quite common on procedural things, like which cases to hear.

Shertoff proposed flag

Last week the Court announced a 9-0 decision on an interesting case, Shertleff v Boston.  Quickly: Shertoff was a free speech case in which a citizen (Shertleff) was denied flying a Christian flag (red cross on blue patch with white background) on one of three masts at the Boston city hall.  The city had never denied such a one-day request before.  But the court considers such facts not so much as the law. [1]

Regarding the law, the court has always bent over backward to protect free speech.  And the right to have that free speech heard – or, in this case, seen.  It’s not the first time Boston and the area has been so severely spanked by SCOTUS on speech.

In 1993 the Irish Gay, Lesbian, Bisexual Group of Boston (GLIB) wanted to participate in the St Patrick’s Day parade.  They were denied (although not by the city, rather by an independent organization running the parade).  GLIB sued and Hurley v Irish-GLIB, Inc went to the highest court.  These things usually take a while to wend through the court system.  The court decided again, in 1995 and unanimously 9-0, that free speech gets pole position.  Gays et al must be allowed to march in public parades.

Another unusual 9-0 decision came in 2014 in McCullen v Coakley.  A Massachusetts law was passed in 2007 mandating an anti-protest “buffer zone” around entrances to abortion clinics – even if that buffer extended to public areas like sidewalks. Protestors sued. Free speech won unanimously, again.  The whole law was stricken.

In every case above the most progressively liberal and conservative justices united to rule in favor of the most liberal interpretations of free speech, even if it went against their personal social principles in the specific cases.

This even applies to burning the flag, see Johnson v Texas, decided in 1989.  Although narrowly decided at 5-4, it’s interesting that conservative-leaning Kennedy and most-conservative Scalia voted with the majority to permit flag burning.  [Kind off odd, as the specific flag burning incident was a protest against Ronald Reagan, done just outside the Republican convention of 1984 — and by 1989, when the case was finally decided, Reagan had recently appointed Justice Anthony Kennedy].

Not long after Johnson, above, the court heard a very similar case.  In response to Johnson Congress quickly passed the Flag Protection Act, which prohibited flag desecration and mistreatment.  They basically dared the courts to take up the issue again.

This got to SCOTUS quickly, dying a 5-4 death in 1990, in United States v. Eichman.  Again, with conservatives Scalia and Kennedy concurring: flag burning is speech.  Speech is protected.

Antonin Scalia, SCOTUS Judge 1986-2016

Years later Judge Antonin Scalia stood by his votes.  “If I were king, I would not allow people to go around burning the American flag.  However, we have a First Amendment, which says that the right of free speech shall not be abridged…”

Scalia’s reference to the First Amendment to the Constitution gives us a good chance to review this very important part of the US 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.”

One thing that’s interesting right from the start is that this Amendment, as written, is directed at “Congress” — not to the states, or to the state legislatures, or to city governments.  Yet the Supreme Court, and lower courts by precedence, have determined for a long time that these rights (religion, speech, press, assembly) are so very important that they apply to all branches of government.

These rights are indeed important.  Let’s consider Freedom of the Press.  This points to just one reason why I personally did not really react much to the great fear-stoking regarding the tenures of, let’s say, our last two presidents: Obama and Trump.  What’s that you say?  Because they were pummeled and attacked by the press, and cartoonists, daily.  None of those publications or voices were silenced, arrested, or “disappeared” by a government response.  We can extend this to the many anti-this and pro-that demonstrations that happened during each presidency.  Free press and free speech all.  [Presidential claims of “fake news” and a bible walk to St John’s notwithstanding].

Freedom of the press is so important it should cause us to consider how contemporary events would have played out if such a valuable and cherished freedom truly existed in, say, China and Russia.

Would there be an atrocity-filled war in Ukraine right now if Russia had such a court-protected freedom?  How might the Covid pandemic have played out if China had freedom of the press?  Reporters Without Borders (RSF) rates China 175th and Russia 155th (out of 180) in the world in Press Freedom.

By way of comparison, the US gets an overall top-grade score of “Good”, and “Satisfactory”, but still comes in at only 42nd, per RSF.  Saying the “US is better than most” is not anything like saying “Russia and China are better than North Korea” (dead last). They are so very low because of authoritarian government interference and censoring. Although we (the US and much of Western Europe) can do better, we are in pretty good standing regarding press freedom.

In absolute freedom of speech, the US does rank #1 in the world (World Economic Forum rankings). [2]

“I disapprove of what you have to say, but I defend your right to say it” has long been a maxim of US law and principals. [3] Recent Rasmussen polls regularly show over 80% of Americans believe free speech is more important than offending someone, and prefer it to giving government control of speech content. [Caveat, among younger Americans this number is dwindling.]

In reviewing the RSF’s Free Press evaluation criteria the US seems to lose ground for a variety of non-government reasons:  there are far fewer jobs for investigative journalism than there used to be; many writers self-censor; much media fails to fairly present alternative views. [4] It’s all related and these conditions continue to morph.  All-in-all, these topics are very large kebabs to skewer. As is Free Speech, in the context of, say, Twitter and Elon Musk. I’ll leave those for others to tackle.

Here’s to #1.  The First Amendment, that is.


Joe Girard © 2022

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Footnotes below.  Acknowledgements to recent articles by Jeff Jacoby (Boston Globe) and The Economist for stimulating the thoughts that led to this essay.

[1] More on recent Shetleff Case:

[2] This is supported by a 2015 Pew Research poll, here.  By 2021, the US has dropped into a virtual tie with Norway and Denmark for #1 [link], which apparently has more to do with Americans’ perception of free speech than actual government or private censoring.

[3] This quote is often attributed to Voltaire, 18th century French philosopher and strong proponent of civil liberties.  It’s actually probably best attributed Evelyn Beatrice Hall, an early 20th century biographer of Voltaire, trying to capture Voltaire’s philosophy.

[4] Figure and scoring, ref: Reporters without Borders site:
Reporters Without Borders site

Reporters without Borders 2021 World Map, hard to believe Russia is red, not black.  But this was before Ukraine.

White (score 0-15) relates to a Good Situation.
Yellow (score 15-25) reflects a Satisfactory Situation.
Orange (score 25-35) represents a Problematic Situation.
Red (score 35-55) represents a Difficult Situation
Black (score 55-100) represents a Very Serious Situation



11 thoughts on “Number One”

  1. Hugh Cook

    Yes, Russia is now Black. I’d like to see this mapped to population. I’m pretty sure most people live in problematic or worse.

    Freedom of press and speech is an effective guard rail if the people educate themselves and are engaged in politics. Apathy leads to tyranny of the influential minority.

    Love your writing!

    1. Joe Post Author

      I am certain that the majority of human population lies in dark shades. 🙁

    2. Joe Post Author

      With China also black, and with India dark red, I presume that a vast majority of humanity now lives in places with nowhere near a free press.

  2. Steve Rolfe

    Joe, thoughtful and timely.

    Freedom of speech means that opinions that you don’t like must be allowed.

    This may be up for debate, but the original intent of the First Amendment was political speech. I would argue that it applies to opinions and ideas, but not necessarily to lies and distortions. See my comments below.

    I think you could have taken your essay further. There are elements of our political class that are working to destroy our freedom of speech. Ron De Santos, Governor of Florida, and the Florida Republican controlled legislature, deliberately took away rights from the Disney Company for the Disney Company’s political position on LGBTQ rights. The action is egregious when you consider that there are over 1000 other companies that have the same rights and were not affected. We have reached a point in our polarized politics that many leaders in one party believe they have the right to take away rights of others for political reasons, clearly in violation of the principal of the First Amendment.

    There is a second part of the issue of freedom of speech. The assumption that truth would overcome lies is no longer true. For a large percentage of our country lies and distortions are offered as truth and believed. In fact, for a large percentage of our country the sources of accurate reporting are believed to be liars and the sources of dishonesty are believed to be truthful.

    A society cannot stand when a significant percentage of people believe lies and act on those lies to the detriment of the truth.

    1. Joe Post Author

      It’s usually difficult for me to find a way to end an essay. I usually tend to go on too long. Lots of potential tangents here, and I opted to follow few. Re:FLA-Santis. At this point I will wait and see. Both had many benefits w.r.t. status quo. And I think that — long term — truth does overcome lies … in a society reasonably trained to think logically.

    2. Joe Post Author

      Regarding Disney, was their right to speak out taken away? Or was their speaking out singled out? How and why did Disney have its tax and municipality district? Re truth and lies. Who decides? Lies have always have the upper hand on truth. “A lie gets halfway around the world before the truth has a chance to get its pants on.” — Winston Churchill

  3. Chris Cronk

    “In reviewing the RSF’s Free Press evaluation criteria the US seems to lose ground for a variety of non-government reasons: there are far fewer jobs for investigative journalism than there used to be; many writers self-censor; much media fails to fairly present alternative views.” – I think this is the most concerning (and true) statement in your article. This behavior is pervasive across major media sources. They react to news events as though they were die-hard representatives of one political party or the other. I am turning more and more to smaller online sources that make a genuine effort to show both sides of an issue. Additionally, where possible, I seek credible data sources (those that report data without editorializing) that I can analyze for myself to validate/discredit what is being reported. Unfortunately, this takes time and a bit of critical thinking that the general population isn’t able to muster or devote. The tricky part of trying to regulate non-factual speech (aka lies) while protecting free speech (facts and plausible opinion), lies in the trustworthiness of the arbiter. Sooner or later this kind of regulation becomes corrupted, and if it is the government that we give the controls to, we are screwed, because they will always be influenced by the prevailing political power. I still think the best policy is to combat false speech with true free speech, rather than with suppression. Imperfect, but far better than the alternative.

    1. Joe Post Author

      Roger that. Good comment. My news sources are drifting away from standard media; my news net is expanding as well. There is some good stuff on substack. Standard sources must be cross checked, if you use them at all. As you note, this takes a lot of time. Internationally I use the Economist a lot (I gave them some credit in the footnotes), the BBC (definitely a bit left leaning, but ok), Calgary Herald, and Deutsche Welle. I consume standard sources with great care and a critical mind: even NPR is flawed, despite the depth of their stories. I feel like our US news is far too parochial with an excess of inflammatory words.

  4. John Beach

    Excellent essay! Brings up lots of thoughts, including ‘fake’ news. Even if it’s fake, we’re still allowed to say it. We can state falsehoods; we can state truth. Many writers don’t know what’s true, but they write anyway. They do their best.
    Then some know they’re lying, but the right of free speech protects them. I guess if that aspect were prevented or punished, it would be worse than them knowingly writing falsehoods.

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