Of Free Speech and Thick Skin

by Jackson Walker
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Jackson Walker

It was a memorable 42nd season for Saturday Night Live, bookended by oddly compelling versions of “Hallelujah” by Kate McKinnon’s Hillary Clinton and Alec Baldwin’s Donald Trump. It has not been such a good season for the First Amendment.

A number of years ago at a media lawyers gathering, there was a t-shirt going around that read “What part of ‘no law’ do you not understand?” referring of course to the operative and emphatic language of the First Amendment. It may be time to order a new batch of those t-shirts, as intolerance to opposing views rises. But the fact is that the First Amendment requires more than Congress making “no law” abridging the freedom speech or a citizenry that accepts in principle that any restrictions on free speech are unhealthy. In practice, it requires that citizenry to have thick skin.

There have been grandiose statements by the new administration about “opening up libel laws.” However, it is not the threat of altering a constitutional fabric (that is not really in danger of being altered) that is the greatest risk to truly free speech. Rather, it is the tone that is being set by our current leaders, both nationally and locally, that creates a more insidious dynamic, being the expectation that anyone can muffle speech with which they disagree, and that there is a remedy for any speech that an individual doesn’t like. You don’t like a question that a reporter has just asked you? Hit him. You don’t like the opinion that someone expressed about you or your business? Sue him. You don’t like the anticipated content of a speech that someone is about to give? Prevent that person from speaking.

This is not the way the “marketplace of ideas” is supposed to work. It is not a marketplace of only ideas with which we agree. If you don’t like what someone is offering up in the marketplace of ideas, you are welcome to walk on by – just as I walk right by the olive loaf section of the grocery market. Or better yet, counter the objectionable speech with your own speech – just as that same deli counter offers up real meat to counter the olive loaf. But if there is someone alive who actually likes olive loaf, I should not be able to prevent them from buying it.

The result of this increasingly pervasive attitude  – that comes from the right and the left – is that the skin of our society is at risk of becoming thinner. The First Amendment however, as envisioned by its framers, and free speech in general require thick skin. That thick skin should be reinforced by our leaders, not reduced. Most of our leaders, either out of purity of purpose or simple practicality, have recognized this. In fact, there has been a healthy tradition of our leaders embracing the satirists who often frame the commentary about them. President George H. W. Bush invited Saturday Night Live’s Dana Carvey, who delivered the most penetrating caricature of the 41st President, to perform at the White House in December 1992 and to stay in the Lincoln bedroom. In 2006, George W. Bush appeared at the White House Correspondents’ dinner with his leading impersonator, Steve Bridges.  By contrast, this year’s White House Correspondents’ dinner did not have the participation of the White House.

Fifty years ago, the precursor of Saturday Night Live – the Smothers Brothers Comedy Hour, debuted on CBS, and two of its most frequent comedic targets were an increasingly unpopular war and President Lyndon Johnson. Before the show went off the air in 1969, there was an exchange of letters between the Smothers brothers and LBJ that is as instructive today as it was then. I recently saw the letter that Dick and Tom Smothers wrote to LBJ in 1968 hanging on the wall of the LBJ library in Austin, Texas. It says, in part: “During the past couple of years, we have taken satirical jabs at you and more than occasionally overstepped our bounds…. Please know that we do admire what you have done for the country and particularly your dignity in accepting the abuses of so many people.”  But it is LBJ’s response that should be written in granite on the walls of the LBJ library: “It is part of the price of leadership of this great nation to be the target of clever satirists. You have given the gift of laughter to our people. May we never grow so somber or self-important that we fail to appreciate the humor in our lives.” In other words, may we never grow thin-skinned.

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Jackson Walker
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