L. Neil Smith's
Number 283, August 8, 2004

"Our enemies are innovative and resourceful, and so
are we. They never stop thinking about new ways to
harm our country and our people, and neither do we."
—President George W. Bush, August 5, 2004

Free Speech Isn't So Free
by Lady Liberty

Special to TLE

When I publicly endorsed Libertarian presidential candidate Michael Badnarik last week—the first time I've ever endorsed any candidate—I expected to get some feedback from readers. What I didn't anticipate was the overwhelming tone of those e-mails: gratitude. One writer even thanked me for "having the courage" to say what I thought. While I'm grateful for the notes and the kind words, I was particularly struck by the idea that it should require much courage at all to simply say publicly what I believe to be the truth.

In the First Amendment to the Constitution, it is quite specifically stated (in part) that "Congress shall make no law ... abridging the freedom of speech ... or the right of the people to peacably assemble." The Bill of Rights were demanded by the people at the time the Constitution was ratified by the states as an additional level of protection against government infringements of such unalienable rights. At the time the First Amendment of the Bill of Rights was written, both the Founders and the people in general were particularly concerned with religious matters and political speech. Many early American colonists had suffered under religious intolerance courtesy of the government "back home," and the Founders themselves risked grave danger speaking out against that government. They fully intended to learn well the lessons history taught and to ensure that their posterity should never suffer a similar fate.

The First Amendment has historically one of the more popular amendments (the First, for example, isn't spoken of in derogatory terms as is the Second on a regular basis, nor has it been suggested it is outdated as is the case with the Second, Third, and all too often the Tenth). Perhaps that's why so many are so sure that the First remains largely intact. It might also explain why the general public seems to believe its rights under the First are all but untouchable.

Yet in those rare instances where there is a First Amendment debate, far too many people are willing to see parts and pieces of the protections chipped away "for the children," or "for our own good," or even so as to supposedly better ensure the equality technically enshrined in all of the Constitution. After all, it's not really going to have much effect on what they would personally say or do, is it? This overall lack of attention and the acceptance of curtailments for politically correct or expedient reasons are the factors that, despite apparent public opinion to the contrary, find the First Amendment today in grave danger indeed.

Consider for a moment the notion of protest against the government. We seem to think that we're free to criticize and compliment, or debate and discuss as we see fit. Yet preparations for the Democratic Convention in Boston involved the establishment of a "protest zone" where demonstrators would be placed largely out of sight and behind fences, razor wire, and black netting. Some protesters sued the city, likening the "zone" to a "concentration camp." A federal judge toured the facility to get a firsthand look for himself; later, despite statements from the judge saying he found the setting even worse than a concentration camp, the suit was decided in favor of the city. The judge said in his ruling that "precautions such as those at the demonstration zone were necessary" because "protests have become increasingly violent and terrorism has grown into a new threat since Sept. 11, 2001." So citizens aren't alone in rationalizing away such abridgements. A federal judge has also swallowed the "for your own good" reasoning, at least as concerns convention attendees as opposed to the suffering and largely stifled demonstrators.

Another uncommon but often striking method of protest against the government or a government action involves the burning of an American flag. The Supreme Court ruled some years ago that flag burning was protected political speech and that, per the First Amendment, Congress couldn't abridge that freedom no matter how deplorable some might find the action. Since the measure wasn't Constitutional under the Constitution as it currently exists, a movement was started to amend the Constitution to prohibit that particular form of political speech. That movement died down for a brief while, but it's now back in the Senate with a vengeance. Such is particularly poignant when we consider that flag burning isn't illegal anywhere else in the world except in places notorious for tyrannical governments such as China.

Two hundred years ago, political speech consisted of such things as standing on a street corner and speaking out, or printing and posting handbills or newspapers. Today, while speeches are still common and printed materials abound, political speech has also broadened into forums such as radio, television, and the Internet, and the amount of money spent on such political speech is mind-boggling. As a result of such massive expenditures and the very real dangers of corruption involved, Congress passed a campaign finance reform measure that theoretically would make candidate and issue campaigns more honest. Instead, under the guise of reform, it enacted extreme abridgements of political speech.

President Bush signed the campaign finance reform bill into law in 2002 (despite ongoing protests from free speech advocates and campaign promises he wouldn't do so); the Supreme Court upheld the law in 2003, something a First Amendment Center analysis on the matter called "a drubbing" of the First Amendment. In the end, fears for the implications of the law have come to pass, and now those who actually lobbied in favor of the measure are suffering curtailments to their free speech along with those who knew all along the law was nothing but trouble where political discussion was concerned. The ACLU continues to oppose the law and is working toward modification or repeal; the National Rifle Association has worked on ways to do a legal "end run" around the provisions of the law. Despite these ongoing efforts to make changes, at the moment all of us must deal with the fact that the orgnizations and/or candidates we support are bound by a law that abrogates their former First Amendment right to say whatever was on their minds whenever it occurred to them to do so (the law tightens its restrictions even further during those time periods within 60 days of an election, and that's coming up in just about a month).

These relatively recent events are merely the latest in a series of rules, regulations, laws, and decisions that mitigate the First Amendment. For example, the notion of criminalizing hateful words has been around for several years now (although new hate speech laws are being discussed and passed all the time). The First Amendment doesn't say anything about "freedom of speech except where someone might be offended by what is said," and I have been unable to find anything else in any other segment of the Constitution that says American citizens have a right to not be offended. Yet the majority of Americans are completely acquiescent—or even supportive!—when such laws are proposed and passed.

Many colleges and universities across the country used to be famous—and justifiably so—for the public debates that occurred on campus. Protesters railed against involvement in the Viet Nam War; women rallied in favor of legalized abortion; the civil rights movement gained additional attention and adherents from students across the country. Whatever your position on any of these issues, the point wasn't whether you agreed or disagreed, but rather that the issues got a good deal of public attention.

It's always been my opinion that the more information we have on the various sides of any debate, the more intelligently we can choose and defend our own side. But even if that weren't the case, surely the First Amendment guarantees your right to your own opinion as well as the right to voice it accordingly! Yet the vast majority of college campuses today have established what are euphemistically known as "free speech zones." These zones are the only places on campus where students can freely hand out literature or give impromptu speeches expressing their position on one topic or another. If they try to do so elsewhere, university administrators fear another student's sensibilities might be offended, or that the education process might be disrupted. Such attempts have resulted in repercussions ranging from censorship to censure, and from admonishment to arrest. Frankly, the reality is that the education process can only be enhanced by alternative viewpoints on politics, policy, or the issue-of-the-day. Unfortunately, the fear of offense is outweighing any other argument no matter how weighty.

And simply because you or I may not be college students or planning to attend protests in Washington, Boston, or New York doesn't mean that our stated opinions are protected by law or safe from repercussions from employers or government authorities. Most people are well aware of the FBI's computer software to monitor the Internet (called "Carnivore," the name has since been changed and its role in investigations downplayed, but both the software and the program that runs it remain intact). They've also heard of the Defense Department's Total Information Awareness program (TIA was "killed" by Congress after vociferous complaints about privacy violations were received; only recently has it been made public that TIA still exists albeit under some other name and as a "black" budget item). And who could forget the National Security Agency's "Echelon" software, which probes the 'net as well as other electronic communications, zeroing in on certain key words that will target conversations or e-mails for investigation? (To the best of my current knowledge, Echelon remains in place and working.)

Just recently, I learned that there's now a company that will, for a price, search the Internet for whatever phrases or words an agency might like investigated, including "awareness of online discussion by hostile groups associated with planned demonstrations..." Being an equal-opportunity discriminator, the company will also search on behalf of corporations which fear "the Internet poses threats to corporations that can take many forms." After all, "activists use the Internet to plan rallies and boycotts," don't they?

Make no mistake: Despite the First Amendment, our free speech rights are not only not protected any more but are actively under attack from virtually all corners. There's also no disputing the fact that, under some law or ordinance somewhere, virtually all of us who do express opinions critical of the government—or of pretty much anything else now that I think on it—are at the very least suspects to be investigated, if not outright criminals. Saddest of all, there are more than a few citizens who are inclined to agree that some of the rest of us ought to just shut up.

If we want to make the government better and more respectful of liberty—and who among us doesn't?—we're each going to have to get better at recognizing and respecting the rights that others have. At the same time, it's crucial that we all accept that we do not have the right not to be offended, nor are we entitled to have everybody agree with us all the time, even on those issues we feel most strongly about. As we work toward a more literal understanding and respect for the First Amendment ourselves, we must also engage in the effort to get our politicians to begin the same process. If we don't, the First Amendment will be in tatters before we're able to stand up and say so; and after it is, I suspect we won't be permitted to bring up the subject at all, at least not in public.

I still don't consider myself particularly courageous for expressing my opinions in a public forum. I do know, however, that I'm taking risks that, only a few years ago, wouldn't have been risky at all. I also know that, given today's political climate and the paranoia amongst authorities toward any who love liberty, there's a possiblity I'll someday see some repercussion for something I've said. Still, it seems to me that, when the coward's way out involves silence in the face of such obvious wrongs, courage isn't really courageous. It's quite literally the only acceptable course of action for any who still value freedom.

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