Comparing Ethical Orientations: An Ethical Treatment of Free Speech
- Apr 3, 2017
- 5 min read
*Introduction
Supreme Court Justice Oliver Wendell Holmes has famously said that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” According to Holmes, “the question in every case is whether the words are used in such circumstances and are such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” To Holmes, the issues at hand center on the “question of proximity and degree” that determine whether the expression is an exception to the free speech Constitutional protection (Moore& Murray, 2012).
On March 1, 2016 at a then presidential candidate Donald Trump rally, several political protestors claim to have been assaulted by Trump supporters while Trump, caught on video, points and repeats the comment “get them out.” According to Federal Judge David J. Hale, “It is plausible that Trump's direction to ‘get ‘em out of here’ advocated the use of force. It was an order, an instruction, a command.” In a preliminary hearing, Trump lawyers touted free speech as a defense. The case was referred to a Federal Magistrate on March 31, 2017 (Associated Press, 2017). Whether Trump’s comments will be designated as an exception to the freedom of speech has yet to be ruled upon; however, this timely exercise of a free speech claim is indicative of two ethical theories relating to communication.
*Moral Rights
The freedom of speech is a well-recognized moral right protected by the First Amendment of the United States Constitution as well as Article 19 of the Universal Declaration of Human Rights (Tomkins, 2016), but it has some exceptions – in the case of this paper the issue at question is the “clear and present danger test,” which “has been frequently cited by the public and jurist alike in supporting restrictions on certain kinds of speech” (Moore& Murray, 2012), where the possibility of harm befalling other members of humanity are involved. Ethically speaking, moral rights are designed to “provide individuals significant protection from harm caused by government or other persons.” Part of these protections include one’s ability to act in such a manner of self-expression – as proclamation one’s point of view. However, another piece of this protection includes a protection of the “fundamental interests of individuals as human beings, especially in how others treat them,” which includes protection from the risk of physical harm (Tomkins, 2016). There appears to exist a collision of moral rights with the case of the March 1, 2016, political rally. It is a clash of free speech vs. physical harm – both outwardly, well-accepted fundamental moral rights. At the rally, individuals on all sides were apparently trying exercise freedom of political expression when some sort of violence broke out and was caught on video camera (Preovolos, 2016).
*virtue
Aristotle offered up the concept of “virtue” applicable to one’s character – which is based upon a “person’s disposition (emotions and personality) and their past actions.” It is important to note that “not all habits are virtuous, only those that are ethically good.” Malice, for example, is “always wrong,” according to Aristotle; however, some virtues can be viewed as some “mean or point of proportion between two vices,” which are either an “excess” or a “deficiency” of the person’s disposition. Figure 1 is offered to provide examples of Aristotle’s thinking.
These things being said, it should be noted that Aristotle “notes” that “there are exceptions to ethical practices of virtue in a specific situation” (Tomkins, 2016).
These exceptions are akin to Judge Holmes’ “question of proximity and degree” mentioned earlier which he made comment on dealing with possible exceptions to the right to free speech. As mentioned, Holmes used yelling fire in a crowded theater as an example of a situation where the proximity and degree offered a clear and present danger to harm others. Holmes’ admittance of some proximity and degree that merits an exception to free speech is countered by the point that Paula Tomkins makes in her, Practicing Communication Ethics, that “there is no complete agreement on what are fundamental moral rights” (Tomkins, 2016) – one of those rights being unfettered free speech. Considering these things, it is important to note that while we typically see the right to expression as a moral right, there are cases where ethics appear to dictate an exception.
Figure 1: (Tomkins, 2016)
Conclusion
However, if we judge what occurred by the publicly documented video (Preovolos, 2016), we can make certain assumptions of character when relating to Trump, the Trump supporters, and the protesters – granted, this is obviously open to interpretation. Never the less, I observe Trump speaking with a deficiency of “Boastfulness” (“Self-Expression,” Figure 1), Trump supporters offering up excesses of “Malicious Enjoyment” (“Indignation,” Figure 1), “Boorishness” (“Conversation,” Figure 1), and “Cantankerousness” (“Social Conduct,” Figure 1). In contrast, the protesters appear to present the virtuous means of “Courage” (“Fear and Confidence,” Figure 1), “Modesty” (“Shame,” Figure 1), and “Truthfulness” (“Self Expression,” Figure 1). And hence, from my interpretation of the video evidence, the protesters offer virtuous character while Trump and his supporters behave with deficiency and excess.
Considering these things, Tomkins points out the key to moral rights. “If you identify a moral right as part of your personal ethical standard, you have a duty or obligation to protect that right” (Tomkins, 2016). I feel that the protesters did present their right to freedom of expression, and Trump, his defenders, and supports also certainly have a right to defend their moral rights in the court cases to come. But it should be noted that at least one federal judge has already offered one preliminary opinion on Trump’s exercise of speech as being an exception to the rule – that is an judgement that the speech incited violence (Associated Press, 2017). Of course, more argument is yet to be heard. However, with the video evidence offered; we can make conclusions based upon virtue ethics and the excesses and deficiencies of Trump and his violent supporters. That conclusion is that ethically, just as Aristotle said malice is always wrong, so was the situational behavior of Trump and his supporters at the Louisville rally on March 1, 2016.
References
Associated Press (2017) . Judge to Trump: No Protection for Speech Inciting Violence: A federal judge has rejected President Donald Trump's free speech defense against a lawsuit accusing him of inciting violence against protesters during his campaign. U.S. News & World Report . April 1, 2017 . retrieved from https://www.usnews.com/news/best-states/kentucky/articles/2017-04-01/judge-denies-trumps-free-speech-defense-in-protester-case
Moore, R.; & Murray, M. (2012) . Media Law and Ethics . Ed. 4th . New York . Routledge . 2012
Preovolos, Chris (2016) . Video shows black woman being pushed out of Trump Rally in Louisville . SFGate . March 2, 2016 . retrieved from http://www.sfgate.com/politics/article/Video-shows-black-woman-being-pushed-out-of-Trump-6865900.php
Tomkins, P. (2016) . Practicing Communication Ethics . Routledge . New York .2016
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