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Cell Phone Privacy, "Hate Speech," and Freedom of Speech

Recent incidents involving police officers, most notably one in San Francisco and one in L.A., the latter being a high ranking L.A. Sheriff’s department official, texting racially insensitive messages have led to widespread condemnation of such texts and their presence on either department-owned or private cell phones of the officers in question. With regard to privacy, the two incidents are different, since the L.A. case involved use of a department cell phone and the S.F. case a private cell phone. The Supreme Court has ruled that messages sent on employer-owned devices are the property of the employer and not the individual using the device and thus legally subject to scrutiny by the employer. In the L.A. case, the texts were sent on the officer’s private cell phone and only uncovered “by accident” during a warranted search of that cell phone as part of an investigation of the officer on sexual assault charges. However, the messages were then made public, both by his employer, the S.F. Police Department, and the media, who obtained extensive copies of them. Neither officer was fired because of the texts, but both have resigned.

Both cases raise issues with regard to free speech. In the case of the L.A. official, most of the texts did not originate with him (though some did), but he forwarded them to other members of his then department, the Burbank Police Department. In the case of the S.F. police officer, a First Amendment lawyer has claimed that the texts were private communications of his personal views and that the issue should be whether the subject behaved in a racist manner on the job, not what his personal views are. According to the lawyer, an employer has no grounds for disciplining an employee whose on-the-job behavior does not show evidence of racial bias.

These are difficult issues to sort out and I find it disturbing that, while there has been a justifiable public outcry against these two officers and the attitudes they have expressed in their texts, there has been no similar concern over their privacy or free speech rights. Even those individuals and groups who have been most vocal with regard to privacy intrusions under the Patriot Act or violations of privacy by social media corporations, have been silent. When the issue of free speech has been raised (and it has only been raised by lawyers sympathetic to either of these defendants rights, not by the public), it has been answered by the claim that such “hate speech” as is exemplified by the two men’s texts, is not protected under the First Amendment.

The perception by much of the public that “hate speech” is not protected by the First Amendment is wrong. In the first place, there is no agreed upon legal definition of hate speech. Secondly, only speech that incites imminent violence or creates a hostile environment leading to evident discrimination when used within the workplace (a difficult issue to prove) is an exception to the First Amendment guarantee of free speech. The L.A. case could conceivably fall into this latter category. Otherwise, people are free to be as hateful as they wish to whomever they wish in the things they say.

Racism within police departments is a curse that unfortunately affects many departments across the United States and leads to horrific injustices for many African-American and Hispanic citizens. A good case can be made that speech that denigrates particular racial, ethnic or gender identity groups, made within the confines of a special workplace such as the police department, does, in fact, lead to a raised likelihood of violence toward members of those groups. While the effects may or may not be “imminent” (a crucial issue with regard to free speech definitions), the fact that police officers carry guns and wield enormous power, needs also to be taken into account. But the issues raised by these recent cases also include privacy and free speech issues, particularly with regard to outside of the workplace speech using personal communication devices. To make such communication unprotected from privacy considerations or the subject of considerations regarding the adequacy of a person’s job performance or even his or her right to hold a particular job, is to remove guarantees of liberty with regard to ideas and speech that should scare all of us. We need to defend these rights to free speech as fiercely as we condemn those who offend us when they exercise their right to engage in such speech. America is almost unique in allowing nearly unfettered freedom of expression and this has been a right that has been under attack since the Constitution was written. If we value this freedom, we need to vigilantly protect it and not join the chorus of those who would oppose it in instances in which it offends them.


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Reader Comments (2)

I couldn't agree with you more about bringing the bigger issue to light: Freedom of Speech. We have so lost our ability to have speech, even it is stupid, insensitive, or obnoxious without being punished by Big Brother/ Or Big Interests Group. We are allowed thoughts. And thoughts are just that. What we DO with our thoughts, words, speech is what sets us apart. How we go out into the world and behave should be our judgement. I am pretty sure Jesus was not all kind and loving in his thoughts about the Pharisees & Tax Collectors. But his actions rose above his thoughts. We have our experiences that cause us our worldview. Prejudices develop. (Which prejudices are unacceptable to society is a moving target.) But we are suppose to rise above and be better than our mere thoughts. That is the blessing of education, experiences, maturity, and so on. To be judged on our thoughts is dangerous. Thoughts are fleeting and also learning points for our character and development. Should we be better about what we say and how we say them? Absolutely. Hence this conversation. And it should be discussed to make us better and kinder to each other. But condemning a person for their private thoughts, even when it doesn't match yours, is NOT freedom. That is control of the worse kind. We are closer to "1984" than most know.. But thank God we still can talk about it. Great thought piece.

May 3, 2016 | Unregistered CommenterElizabeth Torphy

I appreciate your comment, Elizabeth

May 4, 2016 | Unregistered CommenterCasey Dorman

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