Free speech is usually understood as a right. That means that every person in the United States is entitled to whatever they want to say about politics and religion and literature whatever they care to say subject to limitations on slander, hate speech (a dubious proposition) and only self administered good taste, as when attacking the child or wife of a politician. The government has the obligation to protect people who engage in outrageous speech, as when the police allowed Nazi demonstrators to march on Skokie, Illinois in , prevented from doing so only because the demonstrators were bought off not to engage in their right to march with Nazi flags and placards. The trial of Peter Zenger in early Eighteenth Century New York established the right for the press to say critical things of the government and that has been established up to the present when Sarah Palin’s libel that associated her and her point of view was associated with the shooting of Gabby Gifford was dismissed because there was no malice in the New York Times, just a mistake quickly rectified.
Put aside political theory, which treats free speech as a right for all people, and instead look at the sociological conditions when free speech is allowed while other speech is either constrained or protected. A clear cut example is that of comedians who ever since the middle ages have been allowed to say things that ordinary or other people would find as an affront to authority. They are licensed by their humor and so they can pique the king and the court though very careful not to go beyond good taste, depending on their own judgment on how far to go without violating good taste. Doing comedy is a risky business in that it can go too far, and many comedians have been damaged by making remarks that are just a bit further than culture will allow. But even in Stalinist USSR, comedians in circuses could criticize bureaucracies in the government, as allowable humor and not seen as criticizing the regime itself.
Celebrities in general are not subject for censor despite their controversial statements or behaviors even though it might seem otherwise, as when Whoopie Goldberg got a two month suspension for having said that the Holocaust was not a racial issue. That was a mild reprimand and just part of the risk of a comedian walking on the edge to be outrageous. In fact, celebrities are quickly forgiven. Maurice Chevalier, who had entertained German troops in occupied France was rehabilitated well enough to make a number of Hollywood musicals in later years. He was, after all, just an entertainer. Charlton Heston, very active in opposing gun control, was not kept from a very successful film career, as was John Wayne, a supporter of the Vietnam War. Exceptions were the Holywood Reds who were punished for their Thirties and early Forties communist affiliations or Zorah Leander, the major star of Nazi filmdom, who never regained her luster after the end of the Second World War. By and large, film stars are no more punished for their beliefs than are the used car salesman who is not queried whether he is a Republican or a Democrat, Only Hobby Lobby or Denny’s or Lester Manix chicken place get into trouble because they are so outspoken and that passes by as an eccentricity, not the way commerce op-erates.
In fact, there are a great many people in the United States who are entitled to say pretty much what they please about evolution or critical race theory or whether the 2020 election was legitimate. A good indication of that in the past few months have been school boards around the country where parents have complained about masking requirements or critical race theory or books not to be allowed in school curriculums or school libraries. There is, however, a peculiar quality of these discussions, many of whom are available on Youtube. Parents are allowed to say whatever they want to say for their five minutes but school board members remain mute, never responding to or summarizing their own views or justifications of their policies, school board rules requiring that, though there would be no need to short circuit discussion except that they choose not to. It is as if parents can say something and then it is over, unengaged, and that would seem to me to be an insult, reason enough to chastise the school boards. Why not provide medical advice that masks do not lead to the common cold or that “Romeo and Juliet” and not just contemporary novels have racy passages?It is as if free speech is empty speech because it does not require a response. Another way of saying that is that free speech becomes contemptible if it does not have to be answered. Moreover, that goes for both sides. A school board in Tennessee recently removed “Mauss” from its reading list because it showed a frame of the cartoon novel of the author’s mother having killed herself in the bathtub and so her cartoon breast was revealed. What is wrong with that? I would have a parent ask and answer the school board as to whether the board members were prudish or just unwilling to confront just how devastating the Golocaust was, too difficult to confront with children. That would at least be an explanationL too harsh for children to read and to be answered that such was life, as is the idea of Jesus on the Cross. That would be a conversation, not just assertions unanswered or analyzed. Free speech, in such cases, is just sloganeering by the uneducated rather than an attempt by people to enlighten one another. And so everyone has free speech in the way that it is free speech to yell at the umpire.
The real issue of free speech, then, is for the right of elites to shoot off their mouths so that they might influence the populace at large. Those people have to be protected so that they are not harassed by moving discussion forward or creating new insights or points of view. Legislative bodies protect their members from libelous actions as in the case of the United States Congress where no member can be sued for what he or she says. Lindsey Graham, for example, recently said that Ketanji Brown Jackson, who had been nominated to become an associate justice of the U. S. Supreme Court said that she was a left wing demagogue. Now, this is meaningless, in that it is to do no more than scoff, which is what Senators usually do, having no more than a toothpaste advertised as “great” and so not to be treated as an offer, let us say, to reduce tooth decay, in which case they could be challenged as unfactual, such vague and posturing remarks, after all, the level of discourse that politicians generally engage in. If the Graham remarks were treated seriously, then he could be sued as liable because there was no meaningful way in which she was anything like that, if you checked her vita or decisions or speeches. But Graham has a pass, as he should, so as to allow him to say what he wants, unaccountable for his free speech.
Which arrives us to Sarah Palin. Newspapers are pretty well guarded from libel suits because a plaintiff would have to show overt malice to find the newspaper guilty, and that is a very high standard of proof. But that is to beg the question, which is that someone who is a public figure can be libeled at all rather than opening oneself to obloquy by entering into the public spotlight. Only your reputation can protect you. Otherwise, any number of accusations would be actionable, perhaps including Hillary Clinto for some people claiming that she had been involved in the death of Vince Foster. Similarly, Lindsay Graham is free to characterize Jackson any way he pleases even if he were not protected because he is a member of the Senate. Politics is a rough and tumble business and Sarah Palin has at times been nasty enough that she shouldn't run to the courts for punishment because she was insulted.