Which I suppose is better than "Goofballville" or "KooKootown." Couldn't let this go by and not comment. Check Jay Leno and his version of "free speech." I'll have to refer him to the Pat in Covedale primer on Constitutional law. I'm referring to the end of the interview when he tells his studio audience to "just be polite." Yeah, Jay, this is America and if we don't like your sorry ass, we can boo. I mean, if you want to frame the argument in terms of manners and politeness, fine. Booing may not be appropriate. But if you want to throw around the First Amendment, the Constitution and other issues apparently beyond your grasp, then your audience has the right to boo any jackal you want to trot out on stage. Don't try to shame the audience with your incorrect and biased understanding of the Constitution (here's an idea, try READING the document before you try to scare people with it). Ridiculous.
This paper is kinda funny to read. It's almost like George Costanza and Mr. Opposite. I just believe the opposite of what this reporter thinks, and I'll be cool.
But where do you draw the line at "responding to someone's 'free speech'" and being polite and well-mannered?
ReplyDeleteI understand the issue of free speech. Perhaps Leno just poorly chose his words (see what happens when you let actors speak for themselves?--haha!).
The Tonight Show is his venue. He has guests on, he gives the little interviews, etc. It is not a town hall free-for-all. I think he had a right to quell the crowd, to ask them not to boo. Moore was his guest and he was trying to give the man some respect. He wasn't asking the crowd to agree with Moore's viewpoints, he was just asking the crowd to be polite.
Let's say that I was coming over to your house for a party. Most of your friends are conservative Republicans and would be attending as well. If you told them that I didn't share many of their political views, would you allow them to boo me as soon as I walked in the door? Allow them to follow me around the party and chant, "GO HOME SQUEEZE"? I would hope not. I would think that I would be a guest in your house and be shown some type of respect.
I think that this is the same thing. Moore was a guest in Leno's "house". Leno was simply reminding people to be polite. Did he choose the wrong phrase ("free speech") to throw around? Possibly, but his intentions were true.
I don't understand why manners and politeness are thrown out at the mob level. Remember when Linda Ronstadt performed at the Aladdin Theatre in Vegas and she dedicated a song to Moore? Her audience went apesh*t. While conservatives everywhere applauded the audience's reaction, NO ONE condemned their behavior--tearing down posters, throwing their drinks, etc. Is this acceptable behavior when one doesn't agree with an individual's opinion?
Even though I'm not a fan of Leno here, I'll defend him in this situation. I think it was appropriate for him to address the crowd. I think you're wrong to attack him in this situation. I think you would agree with his intent, but not his wording.
Just like I said. If you want to frame your request as a plea for civility and manners, fine. Just say, "C'mon, let's be polite." But it's crap to try and bring pressure on the audience to conform to your view by incorrectly throwing the First Amendment at them. Especially since by doing that, Leno himself is trying to limit "free speech" (even though we know from Pat in Covedale, there's no government action, thus no infringement on the First Amendment). All he does is continue to reinforce peoples incorrect assumptions about our Constitutional rights.
ReplyDeleteBesides, let's get something straight. Leno's show is a business, not a social gathering. He's trying to get ratings and having on a controversial figure is part of the business of improving his ratings. I doubt if there's more consideration to having guests than that, otherwise, he might book you and I for several repeat appearances, "So Squeeze, tell us again about R's 'allergic' reaction to Firewater...."
"Well, Jay, I don't know if it was an allergic reaction, but he certainly went down like a sack of potatoes..."
ReplyDeleteHa!
But I'm lost. How exactly is Leno "trying to limit 'free speech'"? Are you saying that people should be able to boo, heckle, etc. if they disapprove of certain ideas/messages, no matter the venue?
Absolutely not. But step away from the forest, Mr. Hollywood. We're talking about a tv show. Audience reaction will help to drive ratings. The Tonight Show isn't oral arguments before the Supreme Court or a funeral or equally solemn moment that requires peoples opinions be moderated by the bootlicker host (just kidding, just kidding. ain't blogs grand for rants!), the audience is there to provide a reaction. Leno is trying shape audience opinion to his own and framing it in terms of the Constitution.
ReplyDeleteWell, if I could weigh in. There are two issues in play here, the First Amendment and civility. One has nothing to with the other. Certainly, the First Amendment allows, and probably encourages, heckling not amounting to fighting words as part of the fabled robust exchange of ideas. Civility obviously discourages heckling. But, one person heckling a speaker is not the equivalent of trying suppress the speaker's First Amendment rights. First Amendment rights can only be suppressed by the government. Or, to the extent that heckling could be considered suppression of speech, as I commented on an earlier occasion, that would be contemplated within the parameters of the First Amendment. Thus, I think Rob's point is well-taken - if Leno wanted to shush hecklers on the grounds of civility, he would be within his rights and I would support him. If he wants to shush hecklers because he thinks Michael Moore is great and thinks the hecklers are right wing assholes, I have no problem with that either. But if wants to shush the hecklers because they are interfering with Moore's free speech rights then he's seriously misguided because Moore doesn't have any free speech rights vis a vis the hecklers. Obviously, Jay Leno hasn't had the opportunity to attend a fine midwestern law school so that he could be educated on these nuances so I am willing to cut him a measeure of slack. Nonetheless, I have made it my mission to continue expounding on this widespread misconception for the three people who read this blog.
ReplyDeleteI don't think that he's trying to shape the audience's opinion to his own. I think he was trying to maintain a level of civility. Did he throw around the term "free speech" incorrectly? Yes, but I think he was just talking "off the cuff".
ReplyDeleteI wonder what your take is on this:
http://www.cnn.com/2004/ALLPOLITICS/09/17/bush.protester/index.html
Was the police/venue security "trying to shape the audience's opinion" by escorting out Ms. Niederer?
Looks like she was arrested for disorderly conduct, which brings in another host of issues. No question though that she might have a claim against the police for a First Amendment violation. The key is whether she was arrested for her conduct or for the content of her speech. If the former, she would not have an actionable violation.
ReplyDeleteHere is some choice instruction on the subject from the Sixth Circuit Court of appeal:
It is a well-established that "absent a more particularized and compelling reason for its actions, [a] State may not, consistently with the First and Fourteenth Amendments, make the simple public display ... of [a] four-letter expletive a criminal offense." Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1789, 29 L.Ed.2d 284 (1971). In Cohen, the words of individual expression were also "f--k you." The Cohen Court explained why such language is entitled to First Amendment protection although it appears to have little redeeming value: while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. Id. at 25, 91 S.Ct. at 1788. Thus, the use of the "f-word" in and of itself is not criminal conduct.
First Amendment protection is very expansive. The only type of language that is denied First Amendment protection is "fighting words." Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Chaplinsky defined "fighting words" as: those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.... [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value ... that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Id. at 572, 62 S.Ct. at 769. The fighting words exception is very limited because it is inconsistent with the general principle of free speech recognized in our First Amendment jurisprudence. See Texas v. Johnson, 491 U.S. 397, 408-09, 109 S.Ct. 2533, 2542, 105 L.Ed.2d 342 (1989) (quoting Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949)) ("[A] principal 'function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.' "); Knight Riders v. City of Cincinnati, 72 F.3d 43, 46 (6th Cir.1995) ("Fighting words is a small class of expressive conduct that is likely to provoke the average person to retaliate, and thereby cause a breach of the peace"). Fighting words are words that are likely to cause an average person to react thus causing a breach of the peace. Chaplinsky, 315 U.S. at 574, 62 S.Ct. at 770. They are words which an onlooker would consider a "direct personal insult or an invitation to exchange fisticuffs."
Pat:
ReplyDeleteThanks for the "First Amendment:101" crash course!
Please confirm what you are saying:
People are allowed to voice opinions in public--but is there any difference between The Tonight Show, Linda Ronstadt's concert, and Laura Bush's speech? When does voicing one's opinion turn into "disorderly conduct"? What's the difference between booing/heckling Michael Moore vs. booing/heckling Laura Bush?
The article said that the woman was charged with "defiant trespass". What is that? Is it another word for "disorderly conduct"? If different, is it a greater or lesser charge than disorderly conduct? What was so "disorderly" about her conduct? Again, how is this different than heckling someone on the Tonight Show?
What are the details of the Cohen v. California case? What were the circumstances that brought this case to trial?
Is it a fine line between an "individual expression" of "f*ck you" and "fighting words" of "f*ck you"? How does the court tell the difference?
And one last thing, R--regarding the title of this blog subject, I prefer the term "Hollyweird".
As the court opinions like to say, these are fact intensive inquiries. So it a lot of cases its hard to differentiate fighting words from legitimate speech.
ReplyDeleteThe first key is who is allegedly suppressing the speech. That's why Jay Leno in his studio can shush anyone who disagrees with him without any kind of violation. In contrast, the police or the government cannot suppress speech solely because they disagree with the content of the speech. The defiant trespass issue I'm not entirely clear about, but I think there would be no First Amendment violation by the police if, in a private setting, the host said, "Hey this guy is bugging with his rants against the President and he is no longer welcome here, will you please run him out?" On the other hand, that would not work in what are call traditional public forums, such as public parks and sidewalks. The Laura Bush speech I don't know all the details, but it may have been an invitation only thing. Still it may be a large gray area. May have to follow the subsequent litigation that's sure to ensue.
In Cohen, the plaintiff was wearing a jacket that said "F*ck the Draft" but was doing nothing else obstreperous. Protected speech said the Court.
The main points are - location of speech and identity of alleged suppressor of speech are important and these questions all have to be decided on a case by case basis. Oh, and they're not easy to decide.
Did you see that back in May this same woman posted threats against the president on the internet? Excluding all the First Amendment arguments, is it at all possible the First Lady's Secret Service detail knew who she was and wanted her removed from the rally.
ReplyDelete