When Crying “Fire!” Becomes a Slur

photo: lPankonin

This past week witnessed two historical decisions ("'Equal Dignity,’" NYT, 6/27/15,  “Supreme Court Allows Nationwide Heath Care Subsidies,” NYT, 6/25/15) which reaffirmed not only the impartiality of the Supreme Court (with a Conservative Justice upholding the Affordable Care Act), but its imperturbability as an institution in comparison to an increasingly rambunctious and unstable congress. However, the next big decisions facing the Supreme Court are very likely to revolve around the limits of free speech. The famous Oliver Wendell Holmes decision in Schenck v. United States brilliantly prescribed limits to First Amendment Rights. But free expression is one of the most complex matters in jurisprudence and it regularly receives challenges from all sides of the ideological spectrum. This problem is particularly acute in the case of religious expression. Is wearing the Hijab, the veil worn by some Muslim women a right, when hiding one’s face makes identification documents like driver’s licenses and passports almost meaningless? Members of Canada’s conservative government recently courted controversy when they began to question this form of expression (“Harper says majority of 'moderate Muslims' support view on hijab ban,” The Globe and Mail, 3/15/15) Do militantly anti-Muslim groups have the right to promote offensive attacks on Muhammad like the cartoon contest recently held in Texas, under the guise of defending the right of free speech against those who would stifle it (“Pamela Geller, Organizer of Muhammad Cartoon Contest, Trumpets Results,” NYT,  5/4/15).The latter might have given Oliver Wendell Holmes pause, as would have the case of the Nazis marching through the Jewish section of Skokie, Illinois (a case that never made it to the Supreme Court). At the recent PEN conference in New York, otherwise liberally inclined writers signed petitions against honoring surviving Charlie Hebdo staff members, an astonishing turn of events considering PEN’s storied history of defending writers and free expression around the world (“PEN Group Blacklists Charlie Hebdo,” The Screaming Pope, 4/29/15) Those who believe that questioning the First Amendment opens up a Pandora’s Box might ask how exactly “fire!” was cried, how crowded the theater and where the exits were. Salman Rushdie, who had a fatwah issued against him for The Satanic Verses, was incredulous and irate at the waffling some of his PEN colleagues, but the fire has now become the threat of violence and destruction. Liberal western values themselves are like crying “fire?” for fundamentalists of many stripes. In Israel the ultra Orthodox have attempted to inflict their values on a population that doesn’t always cotton to their values. In an age of increasing terrorism, there will be a tendency to constrict both the exercise of beliefs as well as the right to express opposition and outrage at those self-same beliefs. The Supreme Court will have its work cut for it.

Sigma Alpha Epsilon v. United States

photo: Harris and Ewing

What are the limits of free speech? In the famous Schenck opinion Oliver Wendell Holmes famously wrote “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But Holmes would later do a turnaround in Abrams v. United States. Both cases relate to the Espionage Act of l917, but in this instance Holmes along with Louis Brandeis dissented from the court arguing that the exercise of free expression did not pose an equally dire threat. Both cases are significant in and of themselves, Schenck involving conscription and Abrams, concerning armaments. However, the spirit of these decisions is alive and kicking today. For instance, the University of Oklahoma chapter of Sigma Alpha Epsilon fraternity was recently closed down when a racist chanting incident became an online video, “Fraternity is Closed Over Video With Slurs,” NYT, 3/9/15) In the famous case of the National Socialist Party organizing a march through the predominantly Jewish village of Skokie Illinois, the courts ruled in favor of expression. Can an academic institution be equated with a village? Could it be argued that however horrific, students with Nazi sympathies have the right to dress up in Gestapo garb and spout anti-Semitic diatribes? The first amendment is really the first cause of American life. It’s America’s raison d’etre. It was the liberal ACLU who defended the Nazis in Skokie. How free speech issues make strange bed fellows! Fundamentalist Christians, for instance, find themselves aligned with otherwise leftist feminists over the depiction of women in pornographic films. Would it actually be better to allow the fraternity brothers who had chanted the racists epithets to face opprobrium rather than allowing them to become victims who find safe havens in a racist subculture that supports their inanities? Who are we protecting with ostracism? The students or the administrators who themselves don’t want to be found guilty of violating Title VI of the Civil Rights Act of l964? As a social experiment, why not let the fraternity stand and why not encourage open dialogue with its members? Why not take the recovery movement model and look at the chanters as sick? Why not help them so that they can go on to help others rather than creating a crew of societal rejects who will become the Timothy McVeighs and Terry Nichols of tomorrow?

New Perspectives in Proctology

gris for a proctological giant

What does it mean to be a giant in proctology? A proctological giant? Of course there are people who have made huge contributions to disciplines which don’t have the glamour of neuroscience or law or astrophysics. Not everyone can be a Oliver Wendell Holmes whose decision in “Schenck v. United States” tested the limits of free expression or a Frankfurter who could make his mark in “Brown v. Board of Education." But there are the eminence grises who are responsible for less heralded frankfurters such as the kind which are masticated. Here is where the travails of those unsung heroes, whose plastic gloves have gone where angels fear to tread, begin. You won’t find a famous proctologist popularizing the field in the way Oliver Sacks did neurology in his contributions to The New Yorker and The New York Review of Books. You are not going to find too many readers of Conde Nast publications who want to know about the way a human being can compensate for abnormalities of the rectum. Dr. Timothy Leary became the poster child for LSD as did Jonas Salk for the vaccine that was named after him. But you are not going to find too many posters or centerfolds of proctological giants. Charmin is not seeking to get a proctologist to provide a superstar endorsement for its product. The famous heart transplant pioneer Christiaan Barnard leaped from the OR to international high society, but the anal sphincter doesn’t produce such celebrity. Like the highly secretive intelligence operatives whose existence is not even recognized by the government, proctologists work to find solutions to those kinds of problems that occur at the end of food’s journey through the body. Nobody would want that journey to wind up in a cul de sac. Would they? Yet few want to talk about much less attend to these matters. Brave proctologists like Chilean miners descend each day into darkness, sacrificing their lives for the sake of assholes.

Baby Face Nelson

When will the Supreme Court rule on whether showing pictures of infants constitutes free speech? And when will they rule that “sounds like a plan,” “we’re on the same page,” don’t fall under Oliver Wendell Holmes ruling in  Schenck about “falsely shouting fire in a theatre and causing a panic?" “Don’t litter, “ “No Expectorating.” Well, “thank you for sharing, but keep ‘em to yourself.” They're all nauseatingly the same and a reminder that birth and death however joyous and mysterious have something in common with ingestion and regurgitation. What comes in must come out and little agglomerations of cells all neatly spiked with DNA are the result in many cases of sexual congress. What’s the big deal? What’s worse is that the baby picture producers are spiking your computer with malware which allows other baby photo makers to ply you with mountains of monotonous looking cherubs who could turn into tomorrow’s Hitlers or Gaddafis. And what about original sin? The next time you hear some epigone ranting at the UN remember that he was once an adorable little child whose parents and grandparents probably carried pictures of him in their wallets. We shall bury you with baby pictures is what a whole new generation of baby boomer grandparents are saying. Not yet, nyet!

Is There a Limit to Crying “Fire?"

The publication of caricatures of Muhammed by Charlie Hebdo, the French satirical weekly, has opened up a new chapter in the unrest that is sweeping the Middle East in the light of the release of the anti-Islam video The Innocence of Muslims.  “In Egypt, where protesters last week attacked the American Embassy, the Muslim Brotherhood said the cartoons were blasphemous and hurtful, and called upon the French judiciary to condemn the newspaper,” the Times reported (“Paper in France Publishes Muhammed Caricatures,” NYT, 9/19/12). “Mahmoud Ghozlan, a spokesman, noted that French law prohibited Holocaust denial. Similar provisions might be made for comments deemed blasphemous under Islam, he suggested.” But the question is, what are the limits of free speech? In the famous Schenck ruling Oliver Wendall Holmes established that there was a limit to free speech and the limit would be if the speech created “clear and present danger." Free speech was limited when it could cause harm such as “shouting fire in a crowded theater.”  French law may prohibit the denial of the holocaust, but there is no such law here in the United States—where a Holocaust denial industry, however small, still exists. If for instance the Muslim Brotherhood wants the Charlie Hebdo caricatures suppressed, are they willing to agree that similarly anti-semitic distortions like The Protocols of the Elders of Zion, a universally discredited hoax which purported to outline a Jewish plan for the take over of the world, and which is widely available in Middle Eastern countries, should be suppressed? Is it possible to establish the truth and if so, would the line of demarcation be that untruthful statements, like that there was no holocaust should be suppressed while satires, like the Charlie Hebdo caricatures and the Protocols, which are obvious distortions, are allowable even if there intent is to stir up rage? Despite the Schenck ruling American courts have been loathe to argue for any real censorship, due to the many fine points and also due to the degree to which Americans cherish their First Amendment rights (take for example the famous Skokie case, argued before the Supreme Court as Smith v. Collin). Which brings us back to the Schenck ruling. What if there really is a fire? Is the duty of an observer to alert other theatergoers of the danger, even if the ensuing stampede results in greater deaths than if he or she had simply kept their mouths shut? It’s like the old Trolley problem in philosophy. Should the engineer divert the train so that it only hurts or kills one person, when it stayed on its original course, it would have hurt or killed many more?