- - Wednesday, October 25, 2017

No matter what you might believe ails our national approach to free speech today, let’s resolve to not try to take shortcuts through the First Amendment to fix the problems.

Let's resolve not to try to silence would-be Nazis and goofy white supremacists by enacting laws that close down their ability to speak freely to the other 99.99 percent of the nation. The more we see of their intellectually bankrupt ideas, the better to see how marginal and unpatriotic they are.

Let's promise that we will not support efforts to throw Donald Trump off Twitter in the name of good government or good taste or good whatever. Rarely have American voters had more insight, unfiltered and unedited, into the mind and motivations of our president — be that reassuring or terrifying.

Let's not just tolerate, but invite, controversial speakers to our public college campuses — and when they arrive and speak, let’s challenge them with questions rather than violent disruption. Hearing someone is not endorsement of their views, and getting first-hand exposure to ideas you may not like will just better prepare you to offer a counterview.

Let's not buy into a contemporary European concept that banning negative words or images or marches will somehow eliminate the ideas behind them. The American experience proves otherwise: Groups like the Ku Klux Klan embrace secrecy because it allows them to exaggerate their size and disguise their real motives.

While we’re resolving things involving the five freedoms of the First Amendment, let’s reject the lazy idea that there is “The Media,” the verbal equivalent of the Loch Ness Monster. It doesn’t exist. Doesn’t now, never did, and unless we as a nation decide to void out the “free press” part of the First Amendment, never will.

“The Media” is just a political piata that slipped into the nation’s vocabulary about the time we realized referring to “the press” no longer was appropriate. The reality is we all get the news — or can, with very little effort — from a seething, uncoordinated, competitive, local-regional-national collection of news operations ranging from small town weeklies and individual blogs to major city newspapers, broadcasting and cable news operations.

There’s just too much variety — in focus, reach, subject matter and quality — for any one collective term to apply. Is your neighborhood newsletter part of a sinister national cabal to hoodwink the nation into becoming a Republican or Democrat? Do Rush Limbaugh, Sean Hannity, Rachel Maddow and those folks over at CNN all have a secret handshake and magic decoder ring as required accessories when they meet secretly each morning over breakfast to plot nation’s brainwashing?

Do you doubt the accuracy of what you just saw or read or heard in a news report — which polls say are many of us, much of the time? Fine. Use your freedoms of speech and press to complain, but please be specific — which journalist, when on what. Whenever possible, give the rest of us the benefit of your correct information, including its source. Frankly, anything less is just more noise that “the Media sky is falling” — and just as meaningful.

Let's not gut First Amendment-related court rulings, statutes and guidelines developed over several centuries that protect our right to free expression simply as a means of gaining political advantage, retaliation or social shaping — even with the best of intentions.

Laws on certain kinds of speech — defamation, bullying and “true threats” for example — likely do need some updating to deal with the speed and pervasive nature of our relatively young, 24/7-interconnected social media world. But let’s take our time to consider less obvious and certainly potentially negative effects of making it easier to successfully pursue a defamation complaint.

Do we want to lose the useful information in restaurant reviews, or water down those web sites devoted to rating home-repair operations because operators have an increased fear of legal action over accurate information or critical opinions? Nobody likes a bully — but wouldn’t we be better off to focus on preventing the behavior through education and counseling than trying to set up a new speech framework that can only punish the violator after the human damage is done?

And let’s not mistake the spate of billionaire-funded lawsuits against news and entertainment outlets as anything more than heavy-handed attempts to chill speech (reporting) on controversial subjects or people. We cannot have robust public debate if we abandon an underlying idea set out in the 1964 Supreme Court decision in Times v. Sullivan that public figures have the means and ability to protect themselves in the public square that do not otherwise reside with ordinary folks.

Let's promise ourselves that we will keep in mind the hard-won view about free speech that our nation has developed, expressed recently by U.S. Supreme Court Justice Anthony M. Kennedy in a concurring opinion that permits a Seattle rock band to register its name for trademark protection, even though some find “The Slants” an offensive term.

“A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all,” Justice Kennedy wrote. “The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

Granted, we’ve decided as a nation that some speech does not deserve protection: blackmail, child pornography and attempts to immediately incite violence among them. But we must renew our commitment today to narrowly defining in law what is not protected, even if it means standing in defense of the rights of those who would provoke, challenge or even disgust most of us.

Finally, let’s celebrate that the nation’s Founders hard-wired into our Constitution and Bill of Rights a process of self-correction through free expression. They had experience with a simpler system — a despot, even a benevolent one, making social decisions for the rest.

Even though many of us today find fault with tweets, posted comments and some or many of today’s news outlets, let’s not lose sight that we get to talk among ourselves unimpeded by government through that system of wildly divergent, independent set of news gatherers and providers, and now through social media and online offerings.

The challenges to journalists today are more pervasive and more threatening than at any time in a lifetime and more: Daily chants of “Fake News” from politicians who know better can, over time, inure some portion of the public by simple repetition to the good work being done by journalists. Deliberately fake news reports are amplified worldwide and near-instantly by social media networks. News companies have not yet found, despite two decades of effort, a substitute for a failed system of funding.

But while the system is stressed, there are positive points as well: A renewed public debate over accuracy and fairness has produced a strong round of self-examination among journalists, the rise of the fact-checking news industry, and circulation increases and ratings bumps. Claims of “fake news” have finally pushed the social media giants to confront not just that issue, but also their growing role as news providers.

There’s also a renewed awareness among news consumers of their need for clear, factual and accurate information — both in what they consume and in what they produce.

Frankly, we’ll never have — and should not have — a system of censors or “truth verifiers” to screen out things like the fake Houston flooding “shark in the streets” images and their ilk. We just need to keep a healthy skepticism, which will be helped by the growing online fact-checking industry.

In a time when many of us are rightfully concerned about the new challenges — or perhaps simply more obvious challenges — that result from being able to speak freely, please take a moment to consider all the good that truly free expression brings — and what our lives and our nation would be with less than freedom of speech.

Gene Policinski is Chief Operating Officer of the Newseum Institute and of the Institute’s First Amendment Center. He has been researching, writing and speaking on First Amendment issues for more than 25 years.

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