The War on Free Speech
Note: This is the first of a six-part series.
In a post-9/11 climate, the right of free expression is under attack. It’s been endangered in the age of George Bush when dissent may be called a threat to national security, terrorism, or treason. But losing that most precious of all rights means losing our freedom; as 18th century French philosopher Voltaire spoke in defense of saying “I may disapprove of what you say, but I will defend to the death your right to say it.†Using it to express dissent is what noted historian Howard Zinn calls “the highest form of patriotism†exercising our constitutional right to freedom of speech, the press, to assemble, to protest publicly, and associate as we choose for any reason within the law.
Even then, there are times more forceful action is needed, and Thomas Jefferson explained under what circumstances in the Declaration of Independence he authored. When bad government destroys our freedoms, we the people have the right and duty to disobey civilly and resist. Henry David Thoreau called it “Civil Disobedience†in 1849, and men like Gandhi and Martin Luther King practiced it successfully 100 years later. That’s our challenge today at a time our constitutional rights are more compromised and threatened than at any previous time in our history. Resistance is the antidote to restoring them, and freedom-loving people have a duty and obligation to do it.
That’s what freedom is all about and what our Founders had in mind when they crafted what they called “the great experiment†that became our Constitution and Bill of Rights; imperfect as they are with omissions and ambiguities. In words first written by Thomas Jefferson, they “declared their independence†in 1776 from the British king who ruled the colonies with “repeated injuries and usurpations (by his) absolute Tyranny†using language considered audacious then or now:
“We hold these truths to be self-evident, that all men are created equal (and) endowed….with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their powers from the consent of the governed, - That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government….to effect their Safety and Happiness.†Try doing that today, and it’s called treason, a capital offense. Jefferson, Madison, Franklin and others thought otherwise saying we must act in our own defense when government won’t do it for us.
Their “experiment†was glorious, even flawed, and never before tried in the West in any form since its few decades of existence in ancient Athens under its system of “demokratia†or rule by the entire body of Athenian citizens - or at least the non-slave adult white male portion of it meaning a selective democracy for an elite minority excluding all others the way it’s always been here. It began in 1776 with our Declaration of Independence followed by our Constitution ratified in 1789 and Bill of Rights in 1791. This extraordinary document’s Preamble said what our country’s liberties are in 52 historic words even though the language belied the reality:
“WE, THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.â€
And so it was with all its flaws in a nation beholden to privileged white male property owners, doing little for others including women, nothing for black slaves who were property, and even less for “original Americans†exterminated to make way for “newer ones.†We called it democracy and Winston Churchill once said was the “worst form of government except for all those others that have been tried.†Today it’s also called “Western civilization†Gandhi thought “would be a good idea†when asked what he thought about it.
At best, our form of it is a flawed, unfinished project. At worst, it’s heading in reverse at a time of our single-minded pursuit of empire in an age of:
– Predatory capitalism and corporate dominance, incompatible with democracy;
– Sparta-like iron-fisted militarism and all its fallout: mass killing and destruction, occupation, torture and overall inhuman barbarism;
– The most secretive, intrusive, repressive and lawless government in our history;
– An unprecedented wealth disparity former US Supreme Court Justice Louis Brandeis once warned about saying: “We can either have democracy in this country or we can have great wealth concentrated in the hands of a few, but we can’t have both;â€
– The rollback of civil liberties and essential human rights and needs;
– A contempt for the rule of law;
– A deepening social decay;
– The absence of checks and balances and separation of powers and a president usurping “unitary executive†powers to claim the law is what he says it is; and
– The loss of our constitutional freedoms heading the nation toward tyranny and ruin unless reversed.
More than ever, the right to freely express dissent is crucial to surviving. Lose it, as is happening, and lose everything.
The Constitution’s First Amendment explicitly bestows that right no government can lawfully remove, but this one’s doing it anyway. It states: “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.â€
No other nation in history ever protected more of these freedoms, and few, if any, matched them in law or practice.
Nonetheless, there were numerous examples of abusive earlier laws violating various constitutionally guaranteed rights including that of free expression. The Sedition Act of 1798 (with the ink barely dry on the Bill of Rights) did it making it a crime to publish “false, scandalous, and malicious writing†against the president (John Adams) or Congress but allowed it against the vice-president and Adams rival (Thomas Jefferson). It thus illegally banned dissent the Constitution allows.
During WW I, the Espionage Act was passed (under Democrat Woodrow Wilson) in 1917 imposing a maximum 20 year sentence for anyone causing “insubordination, disloyalty, mutiny, or (encouraging) refusal of duty in the military or naval forces of the United States.†It was aimed at First Amendment speech protesting the war and US participation in it everyone lawfully has the right to do. The Sedition Act in 1918 went further criminalizing “disloyal, scurrilous (or) abusive†anti-government speech. Shamefully, the Supreme Court upheld the Espionage Act, most notably in (Eugene) Debs (five time socialist presidential candidate) v. United States resulting in his serving prison time for speaking out against militarism and the US entry into WW I.
Other High Court Rulings Affirming or Infringing on First Amendment Rights
– On war protests when the Warren Court in 1968 disallowed draft card burning claiming it would disrupt the “smooth and efficient functioning†of the draft system. But in 1969 the Court said students had free speech rights and could wear black arm bands protesting the Vietnam war. And it ruled for KKK leader Brandenburg against Ohio in 1969 holding that government cannot punish inflammatory speech unless it directly incites lawless action. Then in 1971, the Court upheld Cohen against California ruling four-letter word anti-war profanity was permissible on a jacket in Los Angeles country courthouse corridors. Don’t try it in the halls of Congress.
– On flag burning in 1989 in Texas v. Johnson when Justice William Brennan, writing for the majority, said “if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable,†and that includes the right to protest by burning the flag in public.
– On obscenity where Courts ruled against pornographic speech especially to protect children from it but held no government can prohibit its possession in the home.
– On slander and libel impermissible in cases of intentional instances of “actual malice†or speech provably false, but acceptable for opinions which cannot be held legally defamatory.
– On political speech in the famous Buckley v. Valeo 1976 ruling when the High Court held that limits on campaign contributions “serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion.†However, the Court found expenditure limits imposed “substantial restraints on the quantity of political speech.†The Court also ruled in 2003 upholding provisions barring the raising of “soft money†contributions to a political party, not a candidate.
Now the High Court is considering arguments on that restriction in the five year old McCain-Feingold campaign finance law and may soon rule to weaken it. At issue is a provision barring corporations and unions from funding campaign ads 60 days before an election and 30 days before a primary naming a candidate for federal office. In their 5 - 4 December, 2003 decision, the court upheld the provision, but its new majority may rule otherwise inviting a tsunami of paid political speech as the 2008 federal elections heat up.
– On press freedom with High Courts ruling for and against the media on matters of taxes and content issues involving political speech, religious speech, “criminal syndicalism,†defamation, obscenity, personal injury, hate or other offensive speech, and other constitutional issues affecting press freedom. Various High Courts have had differing notions of free speech and press rights with some like the current hard right sitting one unlikely to be shy ruling they’re not what the Constitution says they are.
Random Posts
Stumble it!
