Free Speech, At Least For Some

So, what is all this stuff about free speech all about anyway?

That sentence is a grammatical absurdity - with one awkwardly placed dependent clause which rings hollow to the ear - but it is a valid question. 

While it seems simple, the question is anything but*. It turns out to be horribly complex, and part of the reason seems a lot like that mocking question of a few years ago: it depends on what you mean, exactly, by just two things - “free” and “speech.”

You want examples? Have some:

* “I can say anything I want. I have free speech,” you say. But, you don’t.

* “You can’t stop me from talking,” you say. Sometimes, I can.

* “You can’t punish me for what I say,” you say. Well, it depends

*“Free speech is protected in the Constitution,” you say. Well, the answer depends on lots of things - protected for who, protected in what way, and - ultimately - on just what you think speech really is.

See, it’s already getting complicated.

                        Here’s How It All Started

Let’s start by looking at the heart of the matter. The First Amendment to the Constitution of the United States. It will probably be the only simple thing you will find in this blog. Here it is:

“ 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.”

Seems simple, but when our Founding Fathers wrote it, they never thought that the simple idea would get split up the way we do it today. Is commercial speech protected in the same way as political speech? Is political speech protected for everybody, or on every subject, no matter how disgusting or radical or explosive?

Is free speech the same in your house and in a public square, in a school or in a house of worship? At a political convention or in the military? You can see how things start to get a little complicated.

You can always go to the Supreme Court for guidance on the matter, but they have made literally scores of decisions on free speech issues over the years, and a lot of them are a little out of date. Some go back to a time when there was no spam, no computers, no internet. Or, go back even further, to a time when there were no telephones or telegraph lines, or even much literacy. All things that make a difference to what you may mean by free speech.

                      And, Sometimes, It Depends on What “Is” Is

It kinda makes Bill Clinton’s famous defense make some sense. Remember he said “It depends on what the meaning of the word “is” is”, and we all made fun of him. But then he explained that if “is” meant never has been, it had one meaning, while if “is” meant not currently, it meant something entirely different. And, he was right.

Let’s put that free speech in a different context. A business generally has the right to free speech in its ads. You can’t say this drink cures cancer, but you can say that Jones landscaping is the best in the state.  Ah, but when Jones workers go out on strike and wave signs outside his office saying he is unfair and doesn’t care about his workers, he calls the police and asks to have them removed. They say “free speech.” What does the cop do?

Or, let’s say your child, who is really smart, writes a biting editorial in the school paper, and the high school principal has it removed. She says that it is her paper, and she can do whatever she wants. The ACLU says that it is a public forum, and she can not. How does the Court of Appeals rule, and will the Supreme Court reverse the decision? And, what if it is a college paper? What if it is your web site, and you block opposing views? What if you demand to have equal time to rebut a commentator on Fox News, or what if you are a presidential candidate who demands to appear on a televised forum, only to be told you only got 29 percent of the vote in a primary - a run-off has been scheduled - and their cut-off for candidates is 32 per-cent.

                                Welcome to the swamp.

To clarify a point, the guarantee of Freedom of Speech in our Constitution provides freedom from the government banning your right to speak, or to ban stories before they are published. It says nothing about suffering the consequences of what you have said. In the private sector, you can be fired if you damage the reputation of your employer or cost them customers.

 There are also several contradictory rulings about the power of public schools and colleges to limit speech, and government has been given broad powers to limit where you can speak freely.

Want to protest a political party’s actions at their national convention once every four years? Then the local government has the right - to insure public safety - to move large demonstrations far away from the convention site. If no delegates see the protesters, did it really happen? If a tree falls in the forest and no one hears it, does it make a noise?

                          So, What If No One Is Listening?

Now, some of you have probably noticed that it costs a lot of money to spread a message - whatever it is - through the traditional media. It’s why hich Quang Duc - a Vietnamese Mahayana Buddhist Monk set himself on fire in June 11, 1963 on a busy Saigon road. To get people to notice his protest. His demand for free speech.

The Pulitzer Prize-winning picture of his suicide spread around the world, and John Kennedy said “no news picture in history has generated so much emotion around the world...”

But, sometimes things go wrong. And not. He was not protesting the war in Vietnam, but the persecution of Buddhists by the South Vietnamese government. President Diem promised reforms, but never implemented them. In fact, in response, ARVN special forces troops launched raids on Buddhist pagodas across South Vietnam, leading several other monks to immolate themselves in further protest.

And how did it end? A U.S.-backed coup toppled the Diem government, and Diem was assassinated in November, 1963. And you know how the war ended.

So, back to free speech. You can’t yell “fire” in a crowded theater, but you can say nasty, racist things at a Klan rally. But you can’t say those nasty, racist things about one particular person and add that “something should be done” about him (or words to that effect). That is not protected speech. The Supreme Court again.

This year, the Supreme Court had several more free speech cases on its calendar, from the right of a baker not to make a cake for a gay couple - he said it was his way of expressing his beliefs - to the right of a worker not to pay partial union dues because it was his way of protesting the union and its political choices. My favorite, however, was Minnesota Voters Alliance v. Mansky.

                           A Lawsuit Badly Named

I think it should have been titled Cilek v. Minnesota Board of Elections, but titles aren’t always clear in court cases. This one came about because, in 2010, Andrew Cilek went into his polling place in Hennepin County, Minnesota to cast his vote. He was wearing his Tea Party t-shirt with the Gadsden Flag (the one with the snake) and the “Don’t Tread On Me” motto, and an anti-voter fraud button reading “Please I.D. Me.” Because you can’t campaign in a voting place, he was not allowed to vote. (historical accuracy - after being told no several times, he eventually was allowed to. It was enough to get his case to court.)

I won’t even begin to calculate just how much it has cost in political sacrifice and lawyer’s fees to protect our right to free speech, or just how much the phrase has been expanded since the founding of our great Republic.

But, I will go back to my initial point. There is a whole lot about this Free Speech stuff. And there is a whole lot more that has to be explored. Dare I suggest that our President is currently writing a whole new chapter all by himself?

What happens a few years from now when little Johnny in eighth grade turns in a paper on Mexico and calls the people who live there “^(*&%&^&^” ? Will that be free speech, or will his Gadsden Flag t-shirt wearing teacher just give him an A+?

  * See. You can end a sentence with a conjunction. The OED says it has become more common over time, and that writers now feel free to use it for effect. You have the word of an English major.