Speech is power: speech is to persuade, to convert, to compel
—Ralph Waldo Emerson
The second liberty in the Bill of Rights reads:
Congress shall make no law…abridging the freedom of speech, or of the press
There are two distinct issues here—freedom to speak and freedom to publish. In my previous article on religious freedom, it was the first item that was most misunderstood—here, it’s the second that is. We’ll take them in order, though.
Although it comes second in the Bill of Rights, the right to feee speech is perhaps the most cherished right of all Americans. That said, too many people forget that the right to free speech means that you are going to be offended by at least some things that are said (perhaps many things that are said), and that the fact that you are offended in no way gives you the right to limit the speaker’s words. All “speech codes” which purport to limit ‘offensive’ speech are, by their very nature, unconstitutional when promulgated by the government.
That last bit is key—a private entity may restrict your speech on their property in any way they wish. Your employer has no obligation to allow you to speak in any way that they do not wish you to. Want to organize a union? No problem-you may do so on your own time and in a private place where you are permitted to be, or in a public place. Laws which require employers to allow certain types of speech are just as unconstitutional as a law which prohibits speaking in public (see my previous post on the topic of compulsory speech).
How far does the right to free speech go? The typical response is that it is no permitted to yell “Fire!” in a crowded theatre when no fire exists. The question is, though, may the government regulate such speech? The answer is clearly “no”, Supreme Court decisions to the contrary notwithstanding. The Bill of Rights says “Congress shall may no law…”—it does not say “unless it’s really, really important” or “unless lots of people think they should”! How do we deal with miscreants who do so? There are a number of civil actions that can be taken including, but not limited to, banning the person from the venue, suing them for any damages (including economic losses or loss of reputation), and requiring restitution. Certainly, if the result of their action causes physical injury, then criminal charges may be brought for causing the injury or death.
What about pornographic or obscene material? Given that every single ruling in these areas is purely subjective, and there is no agreed objective standard, it’s hard to see how restrictions on pornographic or obscene speech may be enacted into law. On at least one occasion, the Supreme Court agreed. In the famous ruling in Cohen v. California the Court stated clearly that communities could not ban profanity, with Justice Harlan writing:
…one man’s vulgarity is another’s lyric.
Which sums up the argument I’m making—it’s all subjective, and what I find offensive will not be the same as others. If we go down that road, then eventually all speech would be banned. The very premise of “speech codes” is that certain types of speech are so offensive that they can be banned. But this limits free speech to the decision of the hearer, not the speaker. And that is seriously problematic.
The second part of this section of the Bill of Rights is improperly understood. Most people understand it to effectively say that “the Press” has freedom to collect and disseminate news and information. While this is part of the freedom, it is not all of the freedom. What the Founders were saying here is that everyone, all citizens, have the right to publish, and that the government may not restrict publication. This was in direct response to things such as the Stamp Act and other attempts by the government of Great Britain to control the use of the press to disseminate information which the King (or his ministers) did not wish to be published.
It’s important to remember that the right does not refer to a specific piece of equipment, but to any publishing equipment, including fax machines, printers, the internet, magnetic or optical media, etc. In other words, any rights to use a newspaper printing press would apply equally to a blogger on the internet. It is a complete and total misunderstanding that the Constitution envisions some kind of special privileging for ‘credentialed’ press from ‘official’ news gathering organizations. The Chicago Tribune has no more (or less) rights than NoConsent to publish without government interference. The same goes for television. It’s up to the viewer to turn off anything he or she finds objectionable.
How then do we deal with pornography, obscenity and other things which some people don’t want to see? Don’t buy it or watch it if you don’t like it. Set the voluntary controls on your TV, DVR, DVD player, iTunes, etc. This will block based on published standards (e.g. MPAA ratings, which are done by a private organization). Secondly, no proprietor is required to carry any material they find objectionable (most stores do not carry ‘adult’ materials and many others limit objectionable materials in some way). Thirdly, if a proprietor does carry such material, and you find it so objectionable, then do not give that proprietor your custom.
Bottom line—each of us is free to say or publish what we wish and those who find it objectionable have the duty to protect our rights to do so. If you think something said is wrong, you have the obligation to respond, and no right to block it. As Alan Dershowitz said:
The best answer to bad speech is good speech.
If you hear speech you don’t like, speak out. Don’t try to silence the person who is speaking.
