Free Speech News Round-up 9 | June 16, 2020

This week in free speech news we have Starbucks employees getting dress coded for supporting BLM, a pretty good op-ed in the Hill, violence against reporters during the recent protests, a case involving a controversial terrorist law in England, and the Trump administration continues to try and censor John Bolton's upcoming book.

Starbucks Employees Cannot Wear Anything Supporting Black Lives Matter

In a memo released to its employees last week, Starbucks specifically told its employees that they cannot wear anything in support of Black Lives Matter.¹ The basis for this memo is a company policy explicitly forbidding anything that “advocate[s] a political, religious or personal issue,”² as while as an argument that such clothing would be a an incitement to violence. Neither argument would find purchase in the legal jurisprudence on free speech, which would not think that wearing something associated with a broad movement in which a few individuals, possibly not even considering themselves part of that movement, have, in other places, committed violent acts. Such blanket bans on political speech are common, however, in privatized, corporate spaces because companies do not have to adhere to First Amendment civil liberties. As privatization has expanded, and continues to expand, therefore, spaces in which free speech is protected continues to shrink.

Starbucks, like other companies, does not even have to make its policies consistent. Multiple employees informed Buzzfeed News that Starbucks is fine with employees wearing LGBTQ related accessories. This double-standard would not be allowed in a public place in which free expression is protected, but is completely common in the private space in which authoritarian decisions are handed down with ease from the top. In this case, the decision was promulgated by the ironically titled “vp of Inclusion and Diversity.”

The ability of a company like Starbucks to so completely privatize a space undermines its status as a “third place,” something it has aspired to become.³ A “third place” is one outside either the workplace or the home and researchers consider such places important for building community and democracy.⁴ However, there is a clear distinction between third places which are private, like Starbucks cafes or shopping malls, and those which are public, like parks and libraries. In private third places, as this example shows, censorship is common and even contradictory, while such censorship is impossible in public third places that have to adhere to the First Amendment. If third places are to fulfill their important function of building community and democracy, they have to be places that also protect the free speech of all of those of use them. Public, free third places, then, are going to be preferable to privatized, censoring ones.

Political Scientists Argues that the Second Amendment Conflicts with the First

In an interesting and largely accurate op-ed for The Hill, political scientist Katie Scofield contrasts the actions taken by anti-lockdown protests and the Black Lives Matter protests.⁵ She posits that the former group has cloaked itself in the Second Amendment to justify threatening lawmakers in Virginia and Michigan who supported gun control or public health measures. While they argue that the Second Amendment is designed to protect against government tyranny, they use the threat of violence to overturn the will of the people and intimidate. I would add that this is a massive contrast to the largely peaceful demonstrations on the part of Black Lives Matter, who have been using their First Amendment rights to freedom of speech and assembly.

Scofield continues with a description of the history of the Second Amendment, and notes the one fact that seems perpetually absent from discussions over it: the Second Amendment was designed to ensure militias, not a standing army as we have now, would protect the country. As she writes, “The use of the term “militias” in both Article 1 Section 8 and the Second Amendment is a reflection of the fact that the founders feared permanent professional standing armies would be a threat to liberty. The Second Amendment mentions militias because the framers intended military units made up of part-time citizen-soldiers to be the first line of defense.” She concludes by noting a key historical contrast between the first two amendments. While the First Amendment has largely been a tool to “to demand justice and challenge instances of government oppression” the Second Amendment “has historically been a tool of the oppressors rather than the oppressed.”

The salience of this argument is two-fold. First, the historical benefit of the First Amendment to causes of social justice (of the sort this blog is designed to point out) is largely left out of the contemporary debate on free speech. Scofield is reminding us of the importance of remembering that history. Second, the argument should make clear to that minority on the Left that is strongly pro-gun that based on historical precedent, their opposition to gun control will do more help “oppressors rather than the oppressed.”

Reporters Targeted, and Attacked, Mostly by Police, During Protests against Police Brutality

In another alarming series of incidents, reporters have been attacked or arrested in unprecedented numbers as they cover the recent protests over George Floyd.⁶ The U.S. Press Freedom Tracker put out by the Freedom of the Press Foundation has reported over 400 incidents of “aggression” between May 26th and today (June 11). These incidents include arrest, assault, destruction of equipment, and more, the vast majority of which was carried out by the police, with the remainder carried out by protesters themselves. This compares with 100-150 claims annually for the past three years (since the tracker was set up). This violence, coupled with the ongoing violence against peaceful protesters, has truly shown the depravity of police departments around the country. Apparently, the First Amendment is not part of the law that the police are charged with upholding.

UK Jails White Supremacists for Being Members of White Supremacist Group

A Judge in the U.K. has given sentences to four members of the far-right group National Action, following their trial and conviction for being members of the group.⁷

This is a rather interesting situation. The law used to arrest these four is the 2000 Terrorist Act, which grants the Home Secretary the ability to declare certain groups to be terrorist groups, at which time membership in the group is grounds for arrest. Largely, the law has been used to target Islamic terrorist groups and so its use to cover right-wing, white supremacist groups is very new (as in the last few months).⁹ The law is actually quite controversial, though, because, similar to anti-terrorist laws in the U.S., it grants the government, particularly the police, much greater powers of arrest and search/seizure. The law is also quite broadly written, banning, for instance, “possessing documents likely to be useful to a person committing or preparing an act of terrorism,” a clause used just a few days ago to arrest an alleged consumer of such documents on the left.

It is easy to see how such a law might be abused.¹⁰ Several high-profile cases involving the abuse of this same law include the arrest of two university students who were arrested under the same clause for materials they downloaded for class, and the detainment of a noted socialist and peace activist MP for shouting “nonsense” during a speech. Several of the laws sections have been invalidated as violating human rights by the European Court of Human Rights, but with Brexit, presumably, those sections could be reinstated. The law, as amended, also allows arrest and detention without being charged for 28 days. Such a law would probably violate the First and Fourth amendments if implemented in the U.S., especially given that American law enforcement is fully capable of taking down far-right terrorist groups without such power, when they are inclined to do so. This is what happened when the F.B.I. successfully raided the white supremacist group “The Base” prior to their attempt at mass slaughter during the rally opposing gun control in Richmond back in January.

Trump Continues to Censor Book Exposing his Administration

Continuing the Trump administration’s attack on free speech, the White House announced a lawsuit against former national security adviser John Bolton’s upcoming book detailing abuses of power in the administration.¹¹ The President is already responsible for the book undergoing National Security Council review, which resulted in passages being redacted on the grounds that they contain classified information. White House deputy counsel went so far as to say that passages in the book would threaten national security. I am highly skeptical of this, especially given Trump’s propensity to target anyone who disagrees with him for censorship.

• 1. You can find the article here.
• 2. The original article with a copy of the memo can be found here.
• 3. Starbucks’ “Third Place Policy,” can be found here. It is worth remembering that this policy was adopted only after the ridiculous arrest of two black men who were meeting there for business, but did not buy anything. In that incident, too, the stark problems with private places as third places is clear. Private places are only interested in building community or democracy insofar as it makes profit. Public spaces do not have this severe limitation.
• 4. For Starbucks employees, as I understand it, Starbucks is not a third place, it is their workplace. Therefore censorship of their expression is not directly censorship in a third place. However, one of the most important means by which ideas are conveyed in our society is “incidental speech.” This is speech that you hear that you did not intend to hear, or did not want to. It is the speech you hear when someone at the table next to you is loudly saying something that you think is absolutely stupid or egregious. Such speech is important because it is often the way we are exposed to new or challenging ideas, especially in our modern society in which we tend to self-sort into like ideological groups. Such “incidental speech” would include a customer coming to Starbucks and being offended by a Black Lives Matter t-shirt worn by one of the employees. However, the Starbucks policy blocks this form of speech, reducing “incidental speech” and its benefits for both the customer and the employee. Thus, it is still indirectly limiting the kinds of expression likely to occur in the space being used by customers as a “third place.” It neutralizes the air, even if it does not directly censor.
• 5. You can find the full op-ed here.
• 6. For the news article covering these numbers, please look here. For the actual tracker, please look here.
• 7. You can find the full news article here.
An earlier news article describing more background information can be found here.
• 9. For context, here is the second right-wing group, banned. This one in February. More information is also available here.
• 10 For the case of a left-winger arrested under the law recently, please look here. For general information on the Act, you can find the wiki article here. The wiki for the arrested college students is here. The wiki for the arrest of the MP is here. For an article on the right-wing rally in Richmond, please see here.
• 11. You can find the full article here.