In 1977, American Nazi Frank Collin wished to host a political march on the streets of Skokie, Ill., near the homes of Jewish holocaust survivors and spread anti-Semitic filth.
In an effort to prevent trouble, the town council made a series of difficult roadblocks in order to avoid protests.
With the help of the American Civil Liberties Union, Collin sued, and an appeals court overturned the town's law.
The case is sometimes considered a triumph of America’s First Amendment values — that this nation is willing to tolerate free speech, even when the speech is difficult. The decision seems to be the perfect case study of the glib words falsely attributed to Voltaire, “I disapprove of what you say, but will defend to the death your right to say it.”
As is so ably pointed out by LDS scholar and author John Durham Peters and writer Jeremy Waldron, the glibness of this commonly famous phrase always deserves attention. How will death be involved exactly? Will it involve the death of people at the hands of those who were incited to violence by the strife caused by words? Will it mean death when a fight breaks out?
Few people have reminded us of the boundaries inherent in this glib assessment of free speech lately like Julian Assange and the WikiLeaks scandal. His is an example of how death — in this case the potential death of sources and soldiers because of the release of the secret military and diplomatic documents — can be involved.
It should go without saying that Latter-day Saints are and should be tireless defenders of the values of the First Amendment.
The amendment guarantees the freedom of religion that allowed Mormonism a foothold in the first place and guarantees freedom of the press that allowed for the publication of the Book of Mormon without government interference. In addition, it protects the unpopular, and that may be why we Mormons love it so.
Mormonism, as beautiful as it is, isn’t always popular. What a great blessing it is that I can find purpose in my life independent of government.
So, as Assange pushes the boundaries of free speech, I worry about an overreaction that could put some freedoms at risk.
To be sure, I find much that troubles me about Assange’s WikiLeaks. His willingness to embrace secrecy for his own ends — such as obscuring his sources of funding — seems ironic at best. It’s not ethical journalism, for sure.
His willingness to endanger the international community through releasing the details willy-nilly of secret meetings is beyond the pale. His motives seem to come from an extreme anarchy-based ideology.
His work implies a willing effort to undercut American interests with little regard to the soldiers and sources whose lives may be lost — if some haven’t been lost already.
To the degree he has violated any laws, consequences should follow.
To me, though, one of the most troubling things about Assange may be that in his seeming embrace of the fragile values of openness amid free speech, his actions could quietly lead to a temptation toward new restrictions on the very thing that he says he supports.
Anyone who studies the First Amendment for any length of time rarely believes that all speech is allowed willy-nilly in a way implied by Voltaire’s supposed philosophy. There have been rational reasons for people to limit excesses in speech, and they often involve protecting the safety of people.
Indeed, many forms of invidious speech are punished and limited. Types of obscenity can lead to imprisonment. Limitations have been placed on corporations for the types of political contributions they can make. Libel is illegal and can result in lawsuits.
You can’t yell insults at the President of the United States in a building without being taken out of a building and possibly arrested. You can’t place a burning cross on a person’s lawn. You can’t joke about bombs in the line at the airport, and you can’t plagiarize or violate copyright without consequence.
There are sensible reasons for all of these limitations on speech. But these limits can quickly become troubling as politicians and the powerful begin to get involved to push the boundaries of those limitations.
For example, in the early days of the republic, the usually wonderful John Adams punished political opponents under the Alien and Sedition Acts.
Then, just after World War I, Justice Oliver Wendall Holmes famously said that you can’t falsely yell fire in a crowded theater. This sounds sensible enough. But in so doing, Holmes was providing justification for upholding the conviction of a Socialist man for advocating opposition to the draft.
Holmes' argument had its merits, so the point here is not to debate the nuances and merits of these historic examples, but the point is to show that First Amendment freedoms, at times of crisis, can be curtailed unnecessarily — and today remains a time of crisis.
Consider the following:
• What if a crackdown on Assange led to a crackdown on journalism in general, where no whistleblower could safely leak vital government information nor a journalist print it without fear of prison? (Would you have wanted Woodward and Bernstein in prison for the leaks they received?)
• What if unnecessary secrecy grew in government, and what if this enhanced ability to keep secrets tempted some officials to distort information in ways that benefited their friends?
• What if potential Constitutional limits on hate speech were applied in aggressive ways that circumscribed other beliefs?
These are dangers worth heeding.
So, Assange has much for which he must account.
For the rest of us, including those of us who are Mormons, the task is to always show grateful respect for the First Amendment and to use it with generous care.
Free speech is no glib slogan. Its use — and abuse — will always carry powerful consequence. That is why it is so precious — and so fragile.