Posted on 06/29/2007 7:01:39 AM PDT by The Ghost of FReepers Past
(Free) Speech Disorder
By Jonah Goldberg
Friday, June 29, 2007
There are few areas where I think common sense is more sorely lacking than in our public debates over free speech, and there's no better proof than two recent Supreme Court decisions.
But before we go there, let me state plainly where I'm coming from. First and foremost: The more overtly political the speech is, the more protected it must be. The First Amendment was not intended to protect pornographers, strippers or the subsidies of avant-garde artistes who think the state should help defray the costs of homoerotica and sacrilegious art. This isn't to say that "artistic" expression doesn't deserve some protection, but come on. Our free-speech rights were enshrined in the Constitution to guarantee private citizens - rich and poor alike - the right to criticize government without fear of retribution.
Now, there are commonsense exceptions to this principle. Not only can the state ban screaming "fire!" in a crowded movie theater, it can ban screaming "Vote for Cheney in '08!" in a theater, too (or, more properly, it can help theater owners enforce their bans on such behavior).
A better example of an exception would be schools. Students can't say whatever they want in school, whenever they want to say it, because schools are special institutions designed to create citizens out of the malleable clay of youth. Children aren't grown-ups, which is one of the reasons why we call them "children."
Making citizens requires a little benign tyranny, as any teacher (or parent) will tell you. If this weren't obvious, after-school detention would be treated like imprisonment and homework like involuntary servitude.
For a long time, we concluded the best way to protect political speech was to defend other forms of expression - commercial, artistic and just plain wacky - so as to make sure that our core right to political speech was kept safe. Like establishing outposts in hostile territory, we safeguarded the outer boundaries of acceptable expression to keep the more important home fire of political speech burning freely. That's why in the 1960s and 1970s, all sorts of stuff - pornography, strip clubs, etc, - was deregulated by the Supreme Court on the grounds that this was not legitimate "expression" of some sort.
Also, in 1969, the Supreme Court ruled in Tinker v. Des Moines, that students don't "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
This always struck me as preposterous. Of course students shed some of their rights at the schoolhouse gate. That's the whole idea behind the concept of in loco parentis. Teachers and administrators get to act like your parents while you're at school. And parents are not required to respect the constitutional rights of their kids. Tell me, do hall-pass requirements restrict the First Amendment right of free assembly? Don't many of the same people who claim that you have free-speech rights in public schools also insist that you don't have the right to pray in them?
Still, such buffoonery would be pardonable if the grand bargain of defending marginal speech so as to better fortify the protective cocoon around sacrosanct political speech were still in effect. But that bargain fell apart almost from the get-go. At the same moment we were letting our freak flags fly when it came to unimportant speech, we started turning the screws on political speech. After Watergate, campaign finance laws started restricting what independent political groups could say and when they could say it, culminating in the McCain-Feingold law that barred "outside" criticism of politicians when it would matter most - i.e., around an election.
And that's why we live in a world where cutting NEA grants is called censorship, a student's "Bong Hits 4 Jesus" sign is hailed as vital political speech, and a group of citizens asking fellow citizens to petition their elected representatives to change their minds is supposedly guilty of illegal speech.
That is until this week. In one case, the Supreme Court ruled that a student attending a mandatory school event can be disciplined by the school's principal for holding up a sign saying "Bong Hits 4 Jesus," and in another it ruled that a pro-life group can, in fact, urge citizens to contact their senators even if one of the senators happens to be running for re-election. Staggeringly, these were close and controversial calls.
Many self-described liberals and reformers think it should be the other way around. Teenage students should have unfettered free-speech rights, while grown-up citizens should stay quiet, like good little boys and girls. Thank goodness at least five Supreme Court justices disagreed.
Jonah Goldberg is editor-at-large of National Review Online.
I am not sure how I ended up with a double title. Sorry.
Good discussion from Mr. Goldberg. He’s on a roll this week!
Good way to start the day. Thanks for posting it.
Political speech is not necessarily of a different kind, just that you can't, without threat of punishmnet, simply shoot the mayor for his statement that you didn't pay your taxes, or you are running too many pigs in your front yard.
At the same time, the mayor is not entitled to shoot you for saying he's a corrupt SOB who should be ridden out of town on a rail.
The First Amendment is more about legal liability in dealings with the government and politics than speech, per se. Dueling is about speech!
Time to bring it back.
Keep in mind a minor child has few constitutional rights. He lives under a set of laws that he had no part in making yet he could be locked up if he violates them. He can't vote. He might be held to a curfew depending on where he lives. He has a legal guardian he must answer to. He is restricted as to which movies he can see and what products he can buy. He can't legally consent to sex under the age of 16. Nor can he drive under that age without restriction. He is required by law to go to school. On and on. To argue that the kid has the right to hold up a banner advocating illegal drug use at a school event in the name of his Constitutional rights is a bit much.
Then you have to admit, he wasn't put in jail for his speech. He wasn't fined. I believe he was suspended from school. His banner was not taken away as far as I know. He can still hold it up.
The goal of a socialist state is to end the innocence of youth as quickly as possible, then maintain everyone in a state of perpetual adolescence
This kid crossed the line. In an older time he'd been smacked with a shaving strop several times and then sent to bed without supper. And that's what'd happen BEFORE the principal got hold of him.
Because the kid is a minor, I restricted my comments entirely to the part of Jonah's piece that related to adults and their speech.
I disagree vehemently.
If the Founders had wished to protect only political speech, the First Amendment could have read: "Congress shall make no law abridging freedom of political speech."
The reason they didn't support such a First Amendment is because Congress has no business DECIDING which speech is protected and which isn't. Our Founders knew that government would over-step its bounds if exercising such power and that tyranny would result.
The First Amendment protects any and all "speech", subject to compelling reasons to make any restrictions at all. Such compelling reasons would have to deal with imminent, provable harm to the nation, and such restrictions would have to be as minimized as possible to be allowed.
Even such restrictions as described were not permitted by our Founders but were created by the courts.
He isn’t saying political speech is the only speech protected. He is saying that it is the most important speech protected. Everything else relies on it.
What the author DID say is: "Our free-speech rights were enshrined in the Constitution to guarantee private citizens - rich and poor alike - the right to criticize government without fear of retribution. "
This completely short-changes the protection of religious speech. It's simply a false and too-simplified statement of our Founder's intentions.
Our Founder's intention was to deprive Congress of the power to decide what was protected and what wasn't.
I object to such characterizations because it is the same argument used to infringe the right to keep and bear arms. The prohibition of the Second Amendment is that "the right of the people to keep and bear arms shall not be infringed". Anti-gunners are fond of suggesting that the intention of the Founders was solely to protect "well-regulated Militias" and that anything else is open to infringement by Congress.
If the Founders had wished only to protect the keeping and bearing of arms in connection with Militia service, they were completely capable of doing so. But that is not what they did.
Just because it is a foundational right doesn’t mean the others don’t exist or are not important. Religious speech is hugely important. But it is only secure if you have political speech. That makes political speech more important because it is the means of protecting religious speech, or any other right for that matter. Voting rights are meaningless without speech rights.
While what you are saying is true, it in no way limits the scope of the First Amendment. The scope of the limitation on Congress was ALL speech. The Founders DID NOT expect that political speech was to have some exalted protection over other speech. To provide LESS protection for religious speech than for political speech would have been unthinkable to them.
One can make a similar argument concerning the Second Amendment. Protection from a tyrannical central government is certainly a concern. But the right to keep and bear arms also protects one from religious bigotry which is not initiated by government. It also protects one from tyrannical state and local governments.
That's why the Second Amendment is so important ~ it guarantees religion. Once religion is protected, religious speech is protected.
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