Free speech threats aren't new, just worsening

U.S. Attorney General Merrick Garland gave a speech last month marking the anniversary of the Jan. 6, 2021, riot at the U.S. Capitol. Vowing to prosecute that day's wrongdoers and all others who commit or threaten violence in the name of political passions, Garland also promised to respect free speech rights.

Describing the line a free society must tread between spacious tolerance for unpopular ideas and zero tolerance for violence, Garland quoted a landmark free speech ruling authored by Supreme Court Justice (and conservative icon) Antonin Scalia.

"True threats of violence," Garland quoted Scalia as declaring, lie "outside the First Amendment."

I'm aware of Garland's mentioning the 30-year-old Minnesota case this quote hails from — R.A.V. v. St. Paul — because his doing so was brought to my attention in an e-mail from Edward J. Cleary, retired chief judge of the Minnesota Court of Appeals.

Cleary was appointed as a judge by Gov. Jesse Ventura in 2002. In 2011 he was elevated to the Court of Appeals by Gov. Mark Dayton, who made him chief judge in 2013.

Back in the early 1990s, Cleary was a Ramsey County public defender. He landed the seemingly unenviable assignment of representing a teenager — dubbed R.A.V. — who had ignited a flaming cross on an African American neighbor's yard.

Cleary picked up that cross and carried it all the way to the Supreme Court. In his oral argument in 1991, Cleary reminded the justices: "The safeguards of liberty are generally forged in cases involving not very nice people."

Although it was Scalia's banishing of "true threats" from First Amendment shelter that interested Garland, a unanimous court in 1992 ruled in favor of Cleary's "not very nice" client. To be more precise, they ruled against St. Paul's municipal hate speech ordinance, which at the time made displaying alarming symbols a crime only when they expressed racial, religious or gender bias.

The court's main opinion agreed with Cleary that while R.A.V.'s conduct was "reprehensible" it could have and should have been prosecuted through a neutral law criminalizing all threats, not one that involved "picking out an opinion, a disfavored message" for punishment.

"St. Paul," Scalia memorably wrote, "has sufficient means at its disposal to prevent [cross burning] without adding the First Amendment to the fire."

In some ways this story is a reassuring reminder that there's nothing really new about free expression being easier to defend in theory than in practice, or about it's being hard to agree upon free speech boundaries. (Or, for that matter, about goofy local governments in these parts.)

But Cleary, in his e-mail, made it plain he thinks the "safeguards of liberty" are in more peril today than they were a generation ago.

"In the three decades since R.A.V. was decided," he wrote, "it appears to me that free expression is under more severe threat." He sees danger from two reckless forces.

First, "from the young, who apparently believe that you may think what you want and say what you think, as long as they agree with the opinion expressed and don't find it offensive in any way." The other threat, Cleary said, arises from "extremists who take issue with such speech restrictions and regularly cross the line into criminal conduct (Charlottesville, Washington, D.C., etc.) thereby jeopardizing free speech for all as law enforcement is forced to crack down."

Cleary worries where we might be headed: "I continue to fear that at some point we will join other countries in enacting speech restrictive legislation in response to both groups — those who do not want to be offended and those who exploit the right to express oneself freely by crossing the line into threats and criminal conduct."

Some signs of trouble are alarming. A Pew Research survey last summer showed that 65% of Democrats had come to believe "the government should take steps to restrict false information [online], even if it means limiting freedom of information" (fewer than 30% of Republicans agreed).

Doubtless those inflamed views reflect fears fueled by the pandemic and the disordered 2020 election aftermath. But it's always fear that inspires the surrender of liberty.

"Fear breeds repression, and repression breeds hate," Cleary told the Supreme Court 30 years ago, quoting Justice Louis Brandeis.

Admittedly, our era seldom seems overly soft-spoken. Many feel adrift on a sea of scalding and reckless rhetoric on the internet, social media and beyond. As this winter's controversies swirl around Joe Rogan and Whoopi Goldberg, critical race theory and book bans, Jan. 6 reckonings and street protests outside officials' homes, etc., etc., it's clear that most Americans are just about up to here with the free expression of one group of "not very nice people" or another.

But what's vital amid this obnoxious cacophony is to keep drawing the lines and making the distinctions Cleary and Garland emphasize. No one has a right to not be offended; but no cause, no message, justifies lawlessness of any kind. (Senate Republicans are lately pressing former, and likely future, U.S. Attorney Andy Luger to endorse that principle in prosecutions of left-leaning rioters.)

Meanwhile, though, much of what's decried as "censorship" or "cancellation" is in fact merely another messy form of self expression or democratic action — musicians withdrawing their work from platforms, networks or publications suspending or dismissing commentators, parents speaking up (non-threateningly) about their children's education.

Schools are not "banning" books when they simply choose to use different books, even if they do so in response to pushy parents or legislators.

In making these kinds of decisions, of course, a platform, publication, network, school, etc., is eloquently expressing how much or how little it values the free exchange of ideas. It should be, and will be, judged accordingly.

To be sure, the digital network platforms that today wield sweeping powers over access to the public square raise new risks of their own and may require new safeguards for liberty. But expanding government powers over the public debate could prove a hazardous remedy.

The coercive power of the state is a special threat to liberty — and that distinction ought not be obscured. Under any "speech restrictive legislation," Cleary says, "one can surmise that far left authorities would prosecute a different set of violations than far right authorities, leaving everyone at risk."

D.J. Tice is at doug.tice@startribune.com.