Is it open season on free speech? Experts weigh the state of the First Amendment

(l-r) Guy Benson and Jane Kirtley (Charles Hallman/MSR News)

The First Amendment protects all kinds of free speech, including “harmful” and objectionable speech. But will the Trump administration seek to limit or stifle free speech that is not to its liking?

Fox News contributor Guy Benson and University of Minnesota Media Ethics and Law Professor Jane Kirtley last week had a one-hour “unscripted” conversation about free speech and the state of the First Amendment February 7 at the Humphrey School of Public Affairs.

“When you are trying to engage on topics that are disturbing, it is conceivable that some people will be disturbed by it,” stated Kirtley, an award-winning expert on the First Amendment and director of the school’s Silha Center. She said it is now “open season” against people who look different, most notably immigrants, and groups whose views may be in conflict with others — conservatives versus liberals, for example.

“There is a need for everybody to agree” on the importance of free speech and the importance of exchanging ideas, regardless of ideology or political belief, added Benson. “I don’t think that someone who feels physically threatened by seeing a slogan they don’t like is sufficient enough” reason to limit free speech, he said. “The test of free speech is protecting unpopular speech. I think we should take people’s feelings legitimately.”

When the subject switched to the Trump White House, both Benson and Kirtley found some common ground as well as areas of disagreement.

“I’m not an enormous fan” of President Trump, admitted Benson, a conservative talk radio personality and book author. “I was pretty outspoken about Donald Trump in the last election.” But he said now the president “is this one-man orange wrecking ball against political correctness.”

“He seems to have a hair-trigger response and doesn’t hesitate to respond when criticized, to reduce [critics] to objects,” said Kirtley, who added that the Trump White House thus far regularly employs the same divisive rhetoric used during the campaign “in speeches and also on Twitter.”

“He does not handle criticism well,” said Benson, who added he doesn’t like the Trump White House going after the press in what seems like a personal way. “The Trump people have the sense that [they] are under siege. I’m not justifying what they’ve done, but [I’m] trying to explain their mentality.”

Benson noted that the president and key staffers aren’t justified in telling lies and making up stories, but he said that some media are at blame as well: “I wonder if [journalists] had done their due diligence in the first place, would they rush to print something about [former president Barack] Obama as they are about Trump? Are they preordained to think the worst about Trump” simply because they don’t like him?

Social media is now a part of the media landscape, and Kirtley pointed out that some consider it, along with Fox News and conservative talk radio, to have greatly contributed to the divisiveness that now exists in this country. But after the FCC’s Fairness Doctrine was eliminated, “There’s no obligation by broadcasters to present opposing views,” Kirtley noted. “Commentary is absolutely protected under the First Amendment and there’s nothing we can do about it.”

“I absolutely prefer the current media environment to what it used to be with three networks and a few newspapers deciding what the news was,” stated Benson. “I [would] much rather have the diversity of voices.”

The MSR afterwards asked Benson his thoughts on Black Lives Matter protests and where they fall under the First Amendment. “I think Black Lives Matter protests are absolutely protected free speech,” he said. “I don’t always agree with every single critique [on] the premise of Black Lives Matter, but I think that’s a very valuable voice [that] is constitutionally protected.”

Benson also responded to the “conservative versus liberal” war of words: “There are some people on the right who think very poorly of people on the left and assume the worst,” he explained. “But there’s also truths…that conservatives think people on the left hate them and think they are a bunch of nasty, mean-spirited bigots who are out to get them. That is grossly unfair.

“I’m very open about my point of view,” Benson continued. “I’m right of center and I try to be fair. I ultimately am going to believe and advocate for those things and sometimes be partisan. I would just hope to offer a clarion call against demonization.”

Asked for an assessment of her and Benson’s talk last week, Kirtley said, “Guy strikes me as an extremely articulate young conservative who is pretty good at making his case without [being] flamboyant [and] bombastic. We do agree [on] freedom of speech. I am personally very concerned on trying to stifle speech and instead protecting other kinds [of speech]. But he was prepared to acknowledge some of what Trump was doing, putting out knowingly falsehoods.”


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