Aw, come on, we know what free speech is. It’s the duly enshrined right of the Left to malign the Right as retrograde, regressive, reactionary, with some “o” words thrown in, like oppressive. Whereas the Right’s right to come back at the Left operates only in the imagination.
Or sometimes in a courtroom, where, strangely, in view of the times we inhabit, something like equity emerges from our never-ending national foofaraw over abortion—as happened in Texas recently, when the state Supreme Court provided a major win for free speech. Tell you the truth, Prof. Jonathan Turley of George Washington University first uttered those commendatory words, and I appropriated them as my own. My free speech, you know. Little else in the free speech world makes sense these days, but let that go.
The case in question concerned an attack on the claimed right of a pro-life advocate to call abortion “an act of murder with malice aforethought.”
Hot to the touch, that one! The taking of unborn life is . . . murder? So said Mark Lee Dickson and Right to Life East Texas. Up for debate before the city council of Waskom (bet you never heard of it: It’s on Texas’ extreme eastern boundary, evidently teeming with non-New York Times subscribers) was an ordinance voted on, pre-Dobbs decision, that conditionally outlawed most abortions.
Several pro-choice organizations became, predictably, hot under the collar, suing Dickson on grounds that he called them “criminal organizations” on social media due to their assistance in the provision of abortions. This was after he refused their demand for retractions. He wouldn’t play along. An appeals court saw in his slashing words a prima facie case for defamation of folk who, while engaging in support of abortion, had not “committed a crime generally, or murder specifically.”
Says Prof. Turley, a widely read and quoted free speech advocate: The court’s finding “would gut much of the First Amendment. Pro-life advocates believe that abortion is murder and have a right to state so. It is clearly political and religious expression protected by the Constitution. Just as Democrats have accused former President Trump of ‘mass murder’ due to his action on the pandemic, such overheated rhetoric is common in political discourse.”
Came the Texas Supreme Court’s turn at bat. Their honors, in finding for Dickson, hit the free speech ball out of the park. Wrote Justice Jane Bland, non-blandly: “A reasonable person, equipped with the national, historical, and temporal context, and informed by the overall exhortative nature of his posts, could not understand Dickson as conveying false information about the plaintiffs’ underlying conduct, as opposed to his opinion about the legality and morality of that conduct. A reasonable person would understand that Dickson is advancing longstanding arguments against legalized abortion in the context of an ongoing campaign to criminalize abortion, on public discourse sites used for such advocacy…”
Good for the court, we can agree: whatever futility or superfluity might be seen as framing Dickson’s censures in a rural, heavily forested quarter of a state lying more than a hundred miles from the nearest sure-’nuff metropolitan area and TV market. Debates—e.g., the abortion debate—don’t turn on bad or good motives imputed to various participants, defensibly or indefensibly. Debates seek the levers for moving opinion decisively. Which is one major reason the First Amendment affords wide latitude to those who debate this issue or that one, seeking in the dark the lever that begins at last to loosen the mighty machine of indifference and lassitude, of doubt and uncertainty.
Not the least irony of the abortion debate (to give it that rather scholastic name) is its moral character, brought in focus often as not by arguments having less to do with morality—ethical behavior—than personal claims to the right of saying or doing this or that just ’cause I want to, so there! Modern Americans can’t get their arms around an issue with philosophical and theological content, suggesting how the good life is rightly to be led.
Life! That word again! It keeps coming up wherever abortion is talked of, in whatever terms, censorious or approbatory. One possible development in the post-Roe era is the putting aside of lawyer-talk about abortion and the birth of opportunities to talk endlessly, passionately of what the whole thing is about in the first place.
That word again—life. Would you believe it?