ALA’s Code of Conduct, the Supreme Court, and those Guys from Duck Dynasty

Yet more on ALA’s Statement of Professional Concerns, aka the new Code of Conduct! (And a chance for me to actually use my B.A. in Political Science.)

By now, you have probably seen Will Manley’s critique about the code of conduct (EDIT: as of 2 January 2014 the original post, and Will’s entire blog, have been made private). One of Will’s arguments:

This Policy Can Have a Chilling Effect on Intellectual Freedom:The policy states: “Speakers are asked to frame discussions as openly and inclusively as possible and to be aware of how language or images may be perceived by others. ”   This is a very scary requirement.  It sounds an awful lot like…if you offend anyone you can be hauled before the Director of Conference Services and asked to recant.  Shock, satire, and hyperbole are all rhetorical strategies that speakers employ to shake an audience out of normative thinking in order to consider alternative points of view, but shock, satire, and hyperbole can also be very offensive.

In a rebuttal from Matthew Ciszek, Matthew points out the following:

I wholeheartedly agree that there is a fine line between intellectual freedom/free speech and harassment. The Statement was written not to squelch intellectual freedom and free speech, but to remind Conference attendees that intellectual freedom and free speech are never entirely free.  I cannot yell “FIRE!” in a crowded auditorium and claim free speech as a legal defense. 

What Matthew states sounds very much like common sense, but was in fact part of a ruling by the U.S. Supreme Court.

Schenck v. United States concerned the Espionage Act of 1917, and was the first time the Court defined the First Amendment.  Schenck and his colleague, Elizabeth Baer, mailed circulars to draft-eligible men encouraging them to fight the draft through peaceful means and not to join the draft – “do not submit to intimidation.”  Schenck was charged with conspiracy to violate the Espionage Act via insubordination and obstruction of recruitment.  In a unanimous decision, the Court ruled as follows:

Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done….The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.

In other words, we have the right to free speech, but we do not have the right to be immune from its consequences, and the policy is a reminder that we should be mindful of this fact.  In short – context matters, and the Supremes tell us so in this ruling.* I’d like to think that Conference Services will have a balance test in place to protect free speech but ensure that those who bring concerns to the forefront aren’t belittled or marginalized – and like the Code of Conduct, it will have many iterations as times and cultural mores changes. (In fact, the lack of specifics on how complaints are to be handled and offenses to be punished is one of the problems I have with the policy as it is.)

The Court’s decision was upheld in Whitney v. California, where Justice Oliver Wendell Holmes stated in the Court’s concurring opinion “it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature” and the Court’s majority opinion indicated “that a State. . .may punish those who abuse this freedom by utterances. . .tending to. . .endanger the foundations of organized government and threaten its overthrow by unlawful means.”

A more modern parallel would be that whole Phil Robertson/Duck Dynasty thing.  Did Phil Robertson have the right to air his beliefs on homosexualty in GQ, as much as an abomination that many thought his beliefs were? Yes. Did he have the right to be immune from consequence from his employer for that speech?  No.   Schenck and Whitney are reminders of this.  (Another example?  Justine Sacco, a PR exec who was fired over a tweet making light of AIDS in Africa. Again, she has the right to free speech, but not the right to remain immune to the consequences of that speech.)

This policy does not prohibit intellectual freedom – but reminds us that word and deed are not without consequences.  Could this lead to self-censorship (perhaps in an extreme) from speakers and others?  Yes.  What I hope it does is provide a reminder, give people pause to think about what they say before they say it – which can, in the end, lead to more open, honest dialogue.

*The future of Schenck:  Justice Oliver Wendell Holmes, who issued the opinion in Schenck, attempted to refine his thoughts in Abrams v. United States one year later to offer a narrower view of free speech that isn’t protected under the First Amendment: “speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith … substantive evils.”  The “clear and present danger” test upheld in Whitney v. California lasted until 1969, when Brandenburg v. Ohio ruled that “[f]reedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” – in layman’s terms, it’s free speech unless it’s going to cause a riot.   It broadened the argument of free speech and while it did not overrule Schenck, it did weaken its original argument. 

More on Schenck v. United States and its successors. (The PBS.org links are from a documentary on the Supreme Court and provide some interesting context on what happened to the players in these cases after the rulings were issued.) 

Schenck v. United States (1917)

Abrams v. United States (1919)

Whitney v. California (1927)

Brandenburg v. Ohio (1969)

7 thoughts on “ALA’s Code of Conduct, the Supreme Court, and those Guys from Duck Dynasty

  1. Thanks for doing this research. It moves the discussion along in a constructive way. Can you equate all offensive speech to the proverbial “fire” shout in the theater? It seems to be the fulcrum of the issue here.

    • It’s hard to say. The Court interprets it in such a broad way, even with their narrower ruling in Brandenburg v. Ohio, it’s very easy to equate all offensive speech as having the “clear and present danger” that does not equate protection. I only had one hour to do the initial research (I wrote this on my lunch hour), so I need to look into this further to see if any rulings supersede that case.

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