The Limits of Free Speech: where the absolutist position goes awry
Andy doesn’t like my "non-constitutional" readings of the Constitution. As I see it, the problem goes back to "what does the text prohibit"?
Congress shall make no law…abridging the freedom of speech
That "freedom of speech" doesn’t say much, now does it? What if something isn’t speech at all, as far as the police are concerned, but is speech to Andy? Who decides? The speaker? Or the law? On what basis? The Constitution again doesn’t say.
The problem I have with these exceptions to Free Speech is that while the interests of the government are apparent in the aims of keeping the peace, etc. the greater concern should be that the government does not become tyrannical
Actually, the greater concern is that no one becomes tyrannical, government or anti-government factions. Merely weakening the hand of the government does not, in itself, guarantee greater freedom for most people.
Take fighting words. Legally, they’re not an exception to free speech, so much as a designation for conduct that resembles speech, but actually isn’t. Wear a jacket that says "Fuck the police" into a courtroom, and you’ve a right to do so - you’re exercising your "Freedom of Speech." Say "Fuck you" to a police officer while shaking your fist and surrounded by an angry mob - and something very different has occurred. It’s a statement, so in a sense, it’s speech.
And what about "Kill the pigs!" (issued as a command to an angry mob) Is that speech? If it must be protected, then what about "Kill the Jews?" (uttered under the same circumstances)
and part of that is ensuring that citizens can protest perceived injustices in a peaceable way (yes that is in the Constitution) but also an effectual way.
I tried to start this debate over the use of Central Park for protests - which goes back to the "time, place, and manner" restrictions. The thing is, these restrictions don’t actually restrict speech - they enable it. Without these restrictions, speech becomes impossible.
While the sparse wording of the Free Speech Clause allows the States to abridge speech as they see fit,
Actually, it doesn’t. Historically, it did - but the 14th Amendment changed all that. "Due process" includes an awful lot of interesting applications….
And therein lies the secret of our government. Infocats thinks it’s fine to override process in favor of the greater good when something important might be at stake (avoiding the problem of determining whether there actually is something important at stake) - you’d do the same in favor of the iron-clad principle, which, while seeming noble, would in fact do far more damage than you realize.
The point of protesting is to get attention to one’s cause through at least a minor disturbance. It can be peaceable and still cause a traffic jam.
And part of that attention is a result of suffering the blows and overcoming them. Without the government prosecuting her, Sheehan never would have a chance to make that message - and going to prison for a message (even if for a couple of minutes) is one unquestionably sincere means of expressing it.
Also, permits smack of Donovan’s concept of privilege (which I agree with), not rights.
The categories I offered are only sound in theory - in practice, things always require a demonstration of trust at some level. I’ll hold the line at trying to wash away rights in favor of privileges (Infocat’s ill-considered offerings notwithstanding) - the actual ways and means by which rights are exercised grow far messier.
The thing about the permit requirements hangs on process - did Sheehan have a fair process? Was she denied a permit because someone wanted to silence her? Is the restriction on permits unfair?
Sheehan wasn’t entitled to speak wherever she likes - she can’t walk into my house and do it, nor can she walk into any public office and do it. She was entitled to speak - and a traditional public forum cannot be closed to her should she act to open it.
The government doesn’t permit someone to protest it, anyone can do that at any time. It’s a right, that’s the point. You don’t need a license.
Well…sometimes you do. The "right to keep and bear arms" doesn’t mean that you can bear any type of arms you wish. But again, that’s a different debate.
Let’s just say that yes, anyone can protest the government, but when, where, and how they do so can all be controlled. The "speech" portions are guaranteed by the Constitution, but every protest involves a lot more than disembodied voices floating about having their say.
Of course, I could be wrong in my interpretation of the Free Speech Clause. How would an alternative reading work?
If Sheehan is permitted to protest at the White House whenever she likes, what if a crowd of 150,000 gathered on the steps and surrounded it permanently, thereby putting it under siege? Is that permitted?
What if the Secret Service feared that an assassin planned to blow up the protestors and/or the president? Would they be permitted to break up the protest, or would the "freedom of speech" mean that the protest must continue?
What if someone tripped during the march, fell, and got stepped on. Would the police be permitted to break up the protest to access the person who was injured? Or would they have to wait for the protestors to give their permission? Keep in mind, not all marches are orderly…
What if someone organizes a counter-march. If Cindy can march without a permit, then so can the counter-march. The police can’t stop one or the other. And what happens when they walk straight into each other?
It goes on. None of my hypos are improbable; of course, none of them reflect the facts of this case either. They do, unfortunately, reflect tests of the principles at work - and if the principles don’t apply in every hypo, then they don’t exist at all. So if you want to let Cindy off the hook here because you think the First Amendment overrides any other safety concern, what reading do you offer that would prevent these cases from getting out of hand as well?
How many dead protestors are you willing to sacrifice on the altar of Free Speech purity? And make no mistake - there will be dead protestors, dying of dehydration, if nothing else, who are blocked from medical assistance.
We can’t think of our rights as they apply when the best people are exercising them, and set our expectations by their conduct. We have to think of our rights abstractly, where both the best and the worst will benefit from our view.
Is that Constitutional? Absolutely. It’s built into Articles I, II, III - and underpins the "freedom of speech" itself.
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