Just Say It.

by

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Forty five simple words which have come to have sometimes vastly complex, and sometimes internally inconsistent, meanings.  It should be recalled that originally the First Amendment’s limitations on government’s power over fundamental rights of expression and beliefs applied only against the central government. It did not apply against state action until USSC rulings in the 20th century.

Here, we will discuss largely only the speech component of the First Amendment, and even at that, we will touch on only some aspects of it.  As we made clear before, we welcome all readers to chime in here with their thoughts, analyses, concerns.

Certainly, the cornerstone of our rights all flow from the “Right of Free Speech.”  Even without a guarantee of Freedom of Religion, your right to free speech would still allow you to publicly express your preference of beliefs, which is a great observation by my good friend Olin.  That right, Religion, will return a bit later.  Of course, as is often overlooked, there is no right that doesn’t come with some personal responsibility, some limitations; that is, there is a fundamental difference between “liberty” and “licentiousness.”

For example, there is the famous “yelling fire in a crowded theater” example.  Of course, it is often forgotten that Justice Holmes’s famous aphorism actually forbad “falsely” yelling “Fire,” shouting it if there were none; if there were actually a fire, one should shout it out. But there are also slander and libel laws, which prohibit, or allow damages for, oral and written speech which hurts reputational interests.  In short, your rights end where my nose begins, as the saying goes, or they should.   Certainly, spreading oral or written lies that damage reputation, business, or does damage to an individual should be restricted.

My praying in a public does none of that.  Claiming that it “offends” you or that it violates the Constitution is beyond even stupid.  As Jefferson said; “It neither injures me, nor picks my pocket, if a man believes in 50 Gods or none.”  That’s a bit paraphrased, but the essential point is there.  To demand that others must change their behavior because you don’t like it is the stuff of which tyrannies are made.

Let’s take the current Administration and the amount of time and energy they spend criticizing groups like the Tea Party or individuals like Gov. Sarah Palin.  Tied to the right to free speech is the right to redress grievances, so the Administration, even with the knowledge that verbal expression [oral or written] is a right, a natural right, sees no problem or contradiction in attempting to quiet or to demean those who disagree with them and their agenda.  Government’s attempt to silence dissent not only runs counter to the essence of the First Amendment, but it also reveals a subconscious [or maybe conscious!] realization that the government’s position is wrong.  You only attempt to crush with power what you know you cannot win over with reason.

Attempts by those in power to chill dissent is nothing new, of course.  History is replete with examples of people in power trying to curtail some person’s or some group’s right to freely express themselves, be it in dissent in policy or in expression of beliefs.  It wasn’t long from the Framing, with the Framers still around, for the Alien and Sedition Acts to be passed.  How did that not end up in the USSC at the time is a mystery, although later supreme court comments have decried the existence of the Acts and have implied its unconstitutionality.  It is interesting that the Acts were installed by the founder of American conservatism, John Adams, and were used aggressively by his administration against his enemies, and it was a major factor in the election of 1800. When Jefferson won that heated election, the Acts were soon repealed, and President Jefferson pardoned all of those who were convicted under them. Indeed, it is the enactment of the Acts by some of the Framers, with other Framers around and enforcing them, that makes the notion of “intent of the framers” and originalism less viable, clear, and helpful in freedom of expression litigation than in any other constitutional arguments.

Then we see that in 1917 Wilson signed into law the Espionage Act, which, in short, made it a federal crime to promote enemies’ causes and to issue false reports detrimental to the armed services, to obstruct recruitment or re-enlistment, and to promote insubordination, mutiny, or refusal of a call to duty.

It being wartime, the USSC employed the “clear and present danger” test to uphold that Act in three cases in 1919, which is puzzling to me, but the wartime prior restraint doctrine there announced eventually eroded, and then largely existed only in mere lipservice by the 70’s, when cap and I were in the Service.  All of the above seem to be the order of the day back then.  And even though I disliked it, especially being on the receiving end of it, it was, after all, the reason I was in the Service, to protect our regime of Natural Rights.

Would you like a two-for?  Rev. C.H. Waldron was sentenced to 15 years for putting out a paper, ostensibly against this Act, that basically said “if Christians are forbidden to fight for Christ, then they cannot fight for themselves, homes or Country.”  Baby, that’s 7.5 years for using his freedom of speech and freedom of religion.  Good deal!  🙄

And the list goes on, really.  The Government read personal mail in WW II; they called it V-mail.  You might call that an invasion of privacy, but they cut out your right to oppose the war, or to give troop movements, and any of a dozen things that the Government determined you shouldn’t say.  “National Security” and all that.  And that is often used to beat down opposition and expression within the country even now.  The irony of that is that there is one powerful school of thought promoting the notion that the speech component of the First Amendment was intended ultimately to protect political speech, and over political speech the government’s power is at a minimum. And, generally, there was no legitimate “emergency exception” [“national security” being the phrase now] for constitutional rights, because the Constitution was itself born of emergency, about which more at another time.

The Right to Free Speech has got to be the benchmark on which all freedoms must stand. As in the aforementioned, with rights come responsibilities, and they have some limits.  Mostly the limits should be a matter of common sense, common decency and self-restraint.

In the limits department, though, history certainly teaches us, if nothing else, that the Government always over-does it.

Think of it this way: With the Freedom of Speech we can talk about anything, without it we can talk about nothing.

We will delve into other areas of the First Amendment at another time.  What are your thoughts?

chas and cap

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14 Responses to “Just Say It.”

  1. chas Says:

    Sterling,

    Thank you. The beauty of the Founders is that they believed that the common man should be able to read and understand, not only the Constitution but the law.

    Jefferson asked what good is it to write a law for the people if the people cannot understand what is expected of them? Too bad they don’t seem to grasp that concept today.

    chas

  2. Sterling Says:

    Excellent post! Thank you both for sharing your thoughts on this very important subject. I am no constitutional scholar, but I am secure in stating that the reason freedom of speech is the first right enumerated in the Constitution is because it is the most important one. No others can be established without it. We must be ardent in our defense of it. I often say that I will not allow any friendship to be sacrificed to politics. I may not agree with you and I may even think your point ridiculous, but I consider us all to be greater than a political party or belief. We are Americans, and in honor of that, I honor your right to speak your mind. That every politician, on both sides of the political spectrum, would do the same would secure our country’s continued success. That the current administration seems hellbent to bastardize the same assures success to tyrants, present and future.

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  4. Eileen Says:

    very very nice

  5. chas Says:

    Dave,

    Thanks as always for your support.

    Yes, I knew given your circumstances you would be one to most appreciate this post more than most.

    chas

  6. Dave S Says:

    Chas,

    Another in depth, well-thought out posting. Freedom of speech! Always thought that US was one of the countries where people could express themselves freely hence the phrase land of the free. I’ve lived in places where you’ve got to be careful with what you say. It’s rather stifling to say the least. Ok that’s an understatement. People in Thailand get jailed if they say anything that can be perceived to be derogatory about the King.

  7. chas Says:

    Thank you Dog. This blog is a better place because you hang around. Thanks for your support.

    chas

  8. DogOnCrack Says:

    Gentlemen, excellent work!

    Brilliant and precise!

    It was always my understanding that freedom of speech was meant to protect one’s ability to express their thoughts, ideas, beliefs and opinions whether they pertain to politics and elected officials (this was certainly the heaviest of the framers concerns), religion or lack thereof (a close second), philosophy, morality, science, art or even trivial matters etc. without fear of reprisal or deprivation of life or liberty from a tyrannical government or just an angry neighbor. However, it was not meant to protect public obscenity (you can’t stand in front of a school and spew foul language at the kids and you can’t stand in town square and tell everyone about your deviant sexual fantasies unless you live in San Fran), or any kind of communication that would knowingly and deliberately create an imminent threat of physical danger (you can’t yell fire in a crowded theater and you can’t incite an angry mob to attack the object of their discontent.)

  9. chas Says:

    Olin,

    Well of course if you get a shout out in the post you would have nice things to say. 😆

    Seriously, Thank you, cap tends, as I always say, to make post sound like they are written by someone smarter than I actually am. His insights and legal background really do improve post here when his real life doesn’t get in the way. Of course since neither of us get paid for this, one can hardly cast any blame for that.

    One last thing, you have to be a special kind of fool to discount that School of Hard Knocks. While I know many a liberal that went there and was converted to a conservative, I know of no conservative that was converted to a liberal for that education. 😉

    chas

  10. chas Says:

    Gwen,

    The point is mostly to remind people of the actual meaning of the Constitution. This is in part of what the TEA Party wants to do, something, if cap will allow me to say so for him, we both have advocated for years.

    That you have developed and interest, which was exhibited by your interest in reading the Constitutional Debates, means that at least one person gets what we are saying.

    I’d like to claim more, but every convert is a small victory. So thanks for sticking with us.

    chas

  11. olinl Says:

    A good read and well written. What you have presented is how a somewhat clouded image has replaced what should be a very clear and focused picture. Isn’t it interesting how much politics and political correctness are pulled into the debate. And don’t forget all this from an inbred, racist, Southern Redneck with a very poor education. Of course, I received most of my formal education prior to the sixties, prior to the liberal infiltration. In fact, I don’t remember too much about the progressive viewpoint being taught, even though it had been around for years. The school of hard knocks came later.

  12. GwenFL Says:

    Excellent post guys. I am a tea bagging, racist, tea partier. This hit home to me. We got them squirming now. LOL.

    Gwen

  13. chas Says:

    Frank,

    Where have I heard that before Frank? Oh yea, the White House. Silly me.

    Always a pleasure to have you drop in my friend.

    cap makes me sound good doesn’t he?

    chas

  14. Frank C Says:

    Very well said gentlemen. The current administration feels “free speech” is a right of all to agree with its positions. But if you dare to oppose it, it is racist, misconceived, misguided, or inflamatory rhetoric.

    Frank

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