What Is Protected Speech? Call Your Doctor

During the past decade, there have been frequent stories about purported clashes between free speech and safety. In recent preceding decades, by contrast, the debate over free speech had concerned propriety. The libertarian hero had been smut-peddler Larry Flynt. The conservative villain had been Jerry Falwell. The libertarian won. The lesson we brought with us into the last decade was that the vileness and viciousness of a message -- or of its author, for that matter -- could furnish no basis for censorship. The right to spread offensive messages could be limited only by safety concerns.

It is little surprise, then, that we have seen critics of speech frame their positions in terms of safety.

Let us review how we Americans have been approaching the question of how to strike a balance between speech and safety. 

The decade beginning around 2010 brought us hundreds of examples of college speaking engagements being cancelled due to perceived safety threats. These episodes are sometimes referred to as "disinvitation season." Freedom for Individual Rights in Education has a comprehensive database. Here is a small sample.

• Polish scholar and statesman Ryszard Legutko disinvited from a speaking engagement at Middlebury College: "A few minutes after I arrived I was told by one of the professors that my lecture had been cancelled by the president of the College 'for security reasons.'"
  
• Psychologist Kenneth Zucker, whose research concerns gender-confused children, disinvited from speaking at a health conference in Los Angeles in 2017 concerning transgender issues: "'Based on what happened yesterday' (the protest [against Zucker's views]), the board would go ahead and cancel Zucker." 
  
• Stanford student council defunds, and proposes $5,000 fee upon, Anscombe Society conference in 2014 on marriage and family due to claims of "hate speech": "Bringing the speakers to Stanford would threaten the safety of campus for the queer population, according to Brianne Huntsman ’15, who started a Facebook event to organize a rally at the GSC meeting on Wednesday night."
• Berkeley cancels Ann Coulter talk after threats of violence: ""But across the country, conservatives like her are eagerly throwing themselves into volatile situations like the one in Berkeley....""
  

These speakers and messengers are academics, public officials, medical professionals, students, and popular authors and pundits. None of these speakers promote the use of violence. In some cases, their messages were censored because a critic threatened violence, though it does not appear those threats are often serious or credible. In most cases, rather, their messages were censored because one or more critics complained they were extremely discomfited by their messages, and their discomfiture arose to the level of violence, or unhealthfulness, thus rendering the speech unsafe.

Now let us come to the more recent past of early May 2020. In March 2020 jurisdictions throughout the United States imposed quarantines in efforts to slow the spread of the Covid-19 disease. In the ensuing weeks and months, however, many people had suffered serious negative effects from the economic downturn and social isolation, including not a few reports of suicide, medical neglect, and other unintended consequences, sometimes referred to as "deaths of despair." Moreover, reports from jurisdictions without quarantines showed comparable or even favorable results could be obtained by loosening restrictions. By late April and early May, protests had erupted demanding that officials lift or loosen the quarantines.

Here are a couple of examples of how journalists and public health officials reacted to this exercise of the right to speech:

• Via PBS, "In clamor to reopen, many African Americans feel their safety is ignored": "Many African Americans watching protests calling for easing restrictions meant to slow the spread of the new coronavirus see them as one more example of how their health, their safety and their rights just don’t seem to matter." "[M]any African Americans say the fact that protesters are advocating a riskier path reveals a privileged position...."
  
• Via WaPo: "White House coronavirus task force coordinator Deborah Birx said protesters’ disregard of social distancing is “devastatingly worrisome.”"
  

Only about a month later, however, we were provided with another example of a contest between speech and safety. Nationwide protests erupted following the May 25 death of George Floyd. The protests go on as of June 6. In many cases, the protests turned into riots, which have resulted in deaths, injuries, and property damage, the tallies of which are still unknown.

Here are some examples how journalists and public health officials reacted to this exercise of the right to speech:

• NY Times: Despite "arriv[ing] at a particularly anxious moment," protests have been "positively liberating": "People ... have surged to the streets -- for some, mask be damned -- to be part of something."
  
• NY Times again: "Mr. de Blasio may have the power to erect such arbitrary barriers to protest; he clearly does not have the wisdom to refrain from using it. So long as demonstrations are peaceful, the mayor and the police should stop and listen to the legitimate concerns of those they serve."
  
• Guardian editorial: "The word 'violence' is going to be used a lot ... [s]o it's going to be important to be clear about who is violence and what violence is." The way that "authorities often respond in an emergency [is] not by protecting and aiding the public but by seeking to control and repress us," referred to as "elite panic."
  
• San Francisco Chronicle: "But public health experts like Swartzberg of UC Berkeley acknowledge that in a time of national civic unrest and deplorable social injustice, the drive to speak out may supersede the desire to lie low and stay safe." "Stephen Shortell, a public health expert with UC Berkeley .... recognized that for people addressing grave social issues, public demonstrations may rightfully take priority over public and personal health."
  
• Washington Times: "Public health experts support George Floyd protests, oppose coronavirus shutdown rallies" reporting on "An open letter signed by 1,288 “public health officials, infectious disease professionals, and community stakeholders”, which states:
  

“However, as public health advocates, we do not condemn these gatherings as risky for COVID-19 transmission,” the letter continued. “We support them as vital to the national public health and to the threatened health specifically of Black people in the United States.” ....

“This should not be confused with a permissive stance on all gatherings, particularly protests against stay-home orders,” the letter said. “Those actions not only oppose public health interventions, but are also rooted in white nationalism and run contrary to respect for Black lives.”

In addition, “Protests against systemic racism, which fosters the disproportionate burden of COVID-19 on Black communities and also perpetuates police violence, must be supported.” .... 

“A public health response to these demonstrations is also warranted, but this message must be wholly different from the response to white protesters resisting stay-home orders,” the letter said. “Infectious disease and public health narratives adjacent to demonstrations against racism must be consciously anti-racist, and infectious disease experts must be clear and consistent in prioritizing an anti-racist message.”

So if you are interested in exercising your right to free speech and assembly but are unsure of the extent of your rights, here is the advice suggested by recent events in the field: Skip the lawyer, and see a doctor instead.