Freedom of Speech: Challenges with Defining and Regulation

The Supreme Court has struggled to determine what exactly constitutes protected speech. Not speaking, using offensive language to convey political messages, students wearing black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”), contributing money to campaigns, advertising commercial products and services (with some restrictions), and even engaging in symbolic speech (e.g., burning the flag in protest) are some of the specific inclusions of freedom of speech under the First Amendment. What I found more interesting are the specific cases that constitute what is not considered a right to freedom of speech. Many of the specific violations were aimed at students and their protesting styles, but the two that stood out to me after watching Denial were: to incite actions that would harm others (e.g., shouting ‘fire’ in a crowded theater) as seen in Schenck v. United States, 249 U.S. 47 (1919), and to make or distribute obscene materials as ruled in Roth v. United States, 354 U.S. 476 (1957).

Defining and Regulating Freedom of Speech: Challenges

In the movie Denial, there are many instances of how David Irving arrogantly represents himself in court. He insisted on denying the Holocaust and even ridiculed the idea of the Holocaust by offering $1000 to anyone who could prove the Nazis gassed Jews in one of Lipstadt’s classes. When Lipstadt and her legal team had to go to Auschwitz to prove gas chambers existed, there was further distress for Holocaust survivors in proving the inhumane injustices that happened to so many people. If ‘inciting action that would harm others’ or ‘making or distributing obscene materials’ are both violations, how does the court action needing proof of inhumane acts of violence serve as justice to everyone involved? It doesn’t. The validity of one’s word versus another in a court system has sadly been the pitfall of many injustices. Painful cases that involve the abuse of children or horrible homicide are prime examples of how freedom of speech cannot be regulated enough to serve justice to all those seeking it, especially those without witnesses. Recalling painful memories in court to serve as defense is in every way ‘inciting actions that would harm others’ no matter how it’s defined. Just as a defense attorney would try to blame the victim to better defend the offender, Irving boastfully denying all factual claims is absolutely the same. These instances of needing to fight to prove your case or back down breed ground for freedom of speech to be violated and unjustly utilized.

Conclusion

In conclusion, freedom of speech will never be fully defined and defended correctly. I think this movie did an excellent job portraying the instances where the court has to collect all possible details to serve justice. Irving being found as an active Holocaust denier, anti-Semitic, and racist as well as misrepresenting and manipulating historical evidence was monumental because the fact of the matter is he was denying something that happened. Just as anyone who falsely accuses another of rape, abuse, or any other offense is found guilty of false accusation, the justice of preserving accurate and factual historical content should be protected the same. I believe any case of Holocaust denial or another twist of a historical event should be thoroughly examined in court, freedom of speech inclusions and exclusions aside. Although it may come with injustices such as emotional distress or even failure to prevail the truth, there is room for these absolutely important issues to be properly addressed in court. Unbelievably, we find ourselves at a time in which it is necessary to constantly restate things that we know to be true and to constantly repeat history that we know to be true. We are reminded that the chiseling away of history that we know to be true is still an active and ongoing debate.

References

• Schenck v. United States, 249 U.S. 47 (1919).
• Roth v. United States, 354 U.S. 476 (1957).