Free Speech, Twitter, And Obnoxious Neurosurgeons

Emily Deans just wrote about the recent Kruse kerfuffle, which prompted me to write a somewhat lengthy comment there on free speech that I'd like to expand upon. I won't go into the Kruse details, Emily mentions them and David Csonka wrote them up here.

Now, I'm no Constitutional scholar. Then again, Obama is, yet he signed NDAA into law (among other egregious assaults upon civil liberties), albeit with 'reservations' (how nice that he at least had reservations).

I don't know if the FBI or DHS or whatever considers the person who ran this parody Twitter account (@shitkrusesays) to be culpable of anything. Given the ever-increasing police state climate in the US this past decade it's easy to jump to the conclusion that they would, but hopefully this is all Kruse trying to avenge himself or stir up more publicity for himself.

What's clear to me is that whoever was running that Twitter account most definitely is not culpable of any violation of the law, ie, they are, or ought to be protected under the First Amendment. And I don't believe that the account ought to have been shut down under any sort of pressure from the government (perhaps the person running it shut it down themselves), although that seems somewhat unlikely as Twitter is being defended by the ACLU for refusing to hand over the details of one of its users.

I know it's really quaint these days to actually quote from the Bill of Rights, but I'm going to do it anyway:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Is all speech in reality protected, or ought to be protected? No. There's a gray area there, of course, which is summed up pretty well here:

[O]ver the past century the courts have carved out or tolerated dozens of “exceptions” to free speech. These exceptions include: speech used to form a criminal conspiracy or an ordinary contract; speech that disseminates an official secret; speech that defames or libels someone; speech that is obscene; speech that creates a hostile workplace; speech that violates a trademark or plagiarizes another’s words; speech that creates an immediately harmful impact or is tantamount to shouting fire in a crowded theatre; “patently offensive” speech directed at captive audiences or broadcast on the airwaves; speech that constitutes “fighting words”; speech that disrespects a judge, teacher, military officer, or other authority figure; speech used to defraud a consumer; words used to fix prices; words (“stick ’em up — hand over the money”) used to communicate a criminal threat; and untruthful or irrelevant speech given under oath or during a trial.--Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 85 Nw. U. L. Rev. 343, 377 (1991).  Quoted from Volokh.

Now I don't agree with a lot of those exceptions, for example regulating speech on the airwaves, but that's a pretty fair summary of the legal state of free speech in the US (and a pretty good baseline for many Western European countries as well).

One certainly can't consider a Twitter follower a member of a 'captive audience'. The Twitter feed was obvious parody to anyone in the paleosphere who's been following this even remotely (like me), hundreds of thousands of people at least. Was that clear to DHS or whoever was apparently grilling Kruse for hours. No, but about five minutes of research ought to have made it clear.

Next we have the person who contacted Carnival security tarring Kruse as a terrorist threat. I think that person is maybe culpable for something. Perhaps they ought to be charged the price of a plane ticket to fly Kruse back to rejoin the ship. They most definitely ought not to be face extended prison time. If Kruse suffered anything more than a mild inconvenience for all of this, then the only party to blame, the party that is really culpable for that are the authorities.

For example, if I report, out of spite, that my neighbor is beating his wife or doing illegal drugs, and the police break down his door and end up shooting the guy should I be held culpable for murder? No. This kind of stuff actually happens. But the culpable party here is the police, not the person who made the call. They are the ones who pull down a nice salary with full benefits and an early retirement. They are the ones who are supposed to be trained to deal with this sort of stuff.

These distinctions are what really matter, as far as I'm concerned, not whether or not Kruse is a blowhard or a quack.

Addendum:

More on free speech by Eugene Volokh from the same post quoted above:

But as the exceptions become more plentiful, they may begin to seem like they swallow the rule. As Justice Scalia noted in the Fourth Amendment context, once a rule (there, the warrant requirement) “become[s] so riddled with exceptions that it [is] basically unrecognizable,” it is easy to see new exceptions not “as some momentous departure, but rather as merely the continuation of an inconsistent jurisprudence that has been with us for years,” and to conclude that the rule needs to be jettisoned altogether. California v. Acevedo, 500 U.S. 565, 582-83 (1991) (Scalia, J., concurring in the judgment). We recognize that there is disagreement about whether indeed the warrant requirement should be retained, despite its exceptions; our point is simply that the multiplication of exceptions (from “only * * * a few specifically established and well-delineated exceptions,” Katz v. United States, 389 U.S. 347, 357 (1967), to a vast array of such exceptions) undermines the normative force of the rule.

For this reason, the creation of a large array of free speech exceptions ought to be avoided. Having a dozen exceptions for subcategories of knowingly false statements may seem more speech-protective than having a general exception for all knowingly false statements. But such a proliferation of exceptions may ultimately prove to be less speech-protective, because it may open the door to more exceptions that will not be limited to knowing falsehoods.

 Has free speech been jettisoned altogether? Not yet, but that's the endgame.