It is precisely in the case of horrendous ideas that the right of free expression must be most vigorously defended; it is easy enough to defend free expression for those who require no such defense.
If it comes with a price, it’s not free.
“There have been battles over free speech since beginning of our nation,” says attorney Eric Foner. Following this grand-sounding generalization with a slightly closer point: “Wars are often a moment in our history when the government feels it necessary to limit our speech.” As set-up to the argument made in Shouting Fire: Stories from the Edge of Free Speech, this assessment is surprisingly unsurprising. As much as Americans like to tout free speech as a defining element in their politics and culture, fear and ignorance tend to overwhelm common sense and historical understanding. And so it is, that since 9/11, the U.S. has — legally and alarmingly — been curtailing First Amendment rights.
Liz Garbus’ documentary makes its case methodically, with examples ranging from notorious to obscure, that show the censoring of communications that lean both left and right. Each case concerns limits imposed on speaking out against prevailing notions, whether these notions be traditional or relatively new (as in, “politically correct”). And each indicates that no minority view-holder is quite safe, now, from prosecution or persecution.
Garbus, a longtime producer and director for HBO’s remarkable documentary division, brings some specific background to the project, background that she makes clear from frame one. Her father, Martin Garbus, opens Shouting Fire, by reciting the First Amendment: “Congress shall make no law abridging the freedom of speech, or of the press,” he begins. ” Identified as a First Amendment Attorney, he’s well-known as a trial lawyer and teacher (at Yale, Columbia, and in China and the Czech Republic, among other places), as well as an advocate for figures including Nelson Mandela, Vaclav Havel, and Daniel Ellsberg. The last is one of the cases Shouting Fire situates as a precedent to the current cracking down: when erstwhile Vietnam war hawk Ellsberg helped to write and then read the Pentagon Papers, which revealed at least some of the deceptions that initiated and sustained the war, he released the documents to the press, risking all manner of legal consequences in the name of free speech.
Garbus says he never had doubts about his work on that case, even when he was also threatened with legal action and possible, considerable jail time. His daughter asks from off-screen, “You had kids at the time. Were you concerned about not being there for us?” Martin Garbus explains, on beat, “I never took those two things and put them one against the other.” That is, defending free speech was a most emphatic and direct way of “being there” for his family, of ensuring their own lives as citizens of a democracy.
As much as Ellsberg and McCarthyism provide seemingly self-evident instances of good and bad First Amendment history, the post-9/11 illustrations are still in process, and so, are unresolved. One highly publicized case is that of Ward Churchill, the University of Colorado history professor who was fired after he published an article on 9/11 that includes this passage: “If there was a better, more effective, or in fact any other way of visiting some penalty befitting their participation upon the little Eichmanns inhabiting the sterile sanctuary of the Twin Towers, I’d really be interested in hearing about it.” While the language might be incendiary, the documentary suggests, it is hardly cause for persecution — perhaps especially when fears of tyranny and terrorism were raging just after the attacks.
Still, the media (primarily Fox News) frenzy that swirled around Churchill, and the university’s efforts to rid itself of the political vexation he came to be, are noted here in the interest of offering a “context.” Anne Neal, ACTA chairman, says that Churchill was in fact, “not alone” but instead “quite common,” regarding his views of the effectiveness of the attacks, and even became an instance of that effectiveness. (If the terrorists don’t “win” by shutting down capitalism, i.e., shopping, they shut down free speech.)
Here the film deploys a strategy it repeats throughout, which is to bring in a right-wing representative or two in order to seem even-handed. (Another strategy, inserting choice bits of popular cultural illustrations, like Mr. Smith Goes to Washington, the animated Animal Farm, and The Big Lebowski, is more distracting than pointed.) David Horowitz argues against Churchill and other liberal professors who reportedly dominate university campuses, saying he means to “protect conservative students” from exposure to left-wing radicalism. But the case against Churchill quickly veered into hysteria (“Can he be tried for either sedition or treason?” asks Bill O’Reilly), and his dismissal, based on a committee investigation that found him “professionally disqualified” rather than liable for this single utterance, looks especially shady, as the school was able to preserve its apparent support of free speech but eliminate the free speaker who brought such grief.
Shouting Fire looks back on several other recent cases to show the narrowing definitions of “free” when it comes to speech in the U.S., where the Patriot Act is the law of the land. Debbie Almontaser was forced to resign her position as principal of the Khalil Gibran International Academy in New York City when the school was subject to a campaign by the “Stop the Madrassa Coalition” (which essentially named the school — designed to offer classes in Arabic and English, part of a dual language education program established in many other schools in the city — a training facility for terrorists). Almontaser’s firing (under the guise of resignation) was occasioned by an interview she gave to the New York Post, in which her definition of “intifada,” in answer to the reporter’s question, became her support of same. When Liz asks her father, “They can essentially assassinate someone’s character like that and there’s no penalty no legal remedy?” he can only nod. As there was no clear case for libel, Almontaser had no recourse, and the city — shamefully, in Martin Garbus’ estimation — refused to stand by her, replacing her with an interim principal who speaks no Arabic.
The film’s own position is plain even in the case of Tyler Chase Harper’s “Homosexuality is Shameful” t-shirt, which he wore to his high school in Poway, California. Though attorney Kevin Theriot states that “no student was offended by the t-shirt, the film shows this is patently not true, with testimony by a student to the contrary. Still, the documentary submits, the First Amendment guarantees that even offensive language cannot be censored. This even though Ken Starr says, “I think schools can regulate that time and place and manner [of offensive speech] to a much greater extent than the government can.” The problem with this parsing of the Amendment is clear when Richard Posner chimes in: “These are just kids. What do they have to contribute to the marketplace of ideas and opinions?”
Indeed. Who are these kids — or these workers or these communists or these Muslims or these women — who believe they have the same right rights to speak as anyone else in the U.S.? They are, as Shouting Fire puts it, citizens of a nation that by definition holds that right dear.