Freedom of Speech and the First Amendment

Freedom of speech has been on my mind lately.  Maybe it’s been on yours too.  The First Amendment to the Constitution reads: “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.”  With that said, freedom of speech does have limits well established in law.  Libel for instance, or yelling fire in a crowded theater, but on the whole, freedom of speech, combined with freedom of the press, the freedom to peaceably assemble, and the freedom to petition the government are the American holy of holies.  The religion question is for another time.

What has brought it to my mind is a series of recent incidents.  Students at several universities have made it impossible for speakers they don’t like to be heard, or even appear.  The Senate’s tradition of not allowing senators to say nasty things about each other on the floor is enshrined in Rule 19, which was invoked to prohibit Senator Warren from reading unkind things about Senator Sessions from a letter written by Correta Scott King; indeed, she was prevented from saying anything at all during floor debate over his nomination to become Attorney General.  The president continues to speak and tweet outrageous untruths and fuzzy half truths, declaring his “alternative facts” without fear of contradiction in the face of a clamorous contradicting.

It troubles me that freedom of speech is used to justify shutting down the free speech of others, especially in the halls of government and education.  It troubles me that freedom of speech is used by persons in power to justify declaring in the public arena stray thoughts, ill conceived opinions, and outright lies as if they were truth.  It troubles me that the freedom of the press, thanks to radio, television, and social media, has become the playground of demagogues whose blatant abuse of “news” has demeaned and diminished the whole of the Fourth Estate by a Fifth Estate having no accountability, something of which I am a part. It troubles me that the right of the people to petition government is blockaded by a heavily armed phalanx of paid lobbyists surrounding the legislature,  a praetorian guard of staffers limiting access to those who have paid for it, and communication channels shut down to keep the pests away.  Like others, I donate to organizations employing lobbyists to represent me, but I’d like my voice to be heard as something other than a modest donation.  As much as I hate admitting it, the tea party gangs did a good job of making their voices heard, and shame on us for not doing the same.

What about the right of peaceable assembly?  Protests.  Marches.  Massing at town hall events, etc.  Sending groups of like minded persons to state capitals or D.C..  Might we now add organized forms of electronic communication?  It seems that the right of peaceable assembly is frequently dismissed as insignificant rabble rousing, influential only because of the size or emotional intensity of the crowd, or undermined by violence (opportunistic or planned).  Whatever its weaknesses, it remains a powerful tool to influence public policy, a right in need of constitutional protection.  Yet, legislation was introduced in my state of Washington to make it a felony to engage in non permitted assemblies in public places.

First Amendment freedoms are first because its authors understood that on them rested the success of their experiment in representative democracy formed by a union of quasi independent states united as a nation by a written, binding constitution.  However, ratifying them did not remove them from public debate.  We’ve always had problems with how much freedom of speech should be allowed.  The Alien and Sedition Acts of 1798 are eerily similar to executive and legislative moves in our own time.  They prefaced similar efforts limiting freedom of speech during times of war, which have been many.  Each time, the limits were overturned, eventually, but not until they had achieved their purposes couched in terms of keeping us safer, more secure, and united in effort.  Public fear, it seems, can override constitutional freedoms without much effort, and stoking public fear has become efficiently easy to do.

Social media has changed the arena of free speech by making possible and encouraging the instantaneous spread to a world wide public of unverified, unverifiable assertions on the grounds that it is protected free speech.  Consider a local example of no great importance to the world at large.  A conversation stream on a community news site included declarations that the city was paying to import homeless people to populate our homeless camp.  When challenged about veracity, the author claimed freedom of speech.  I’m not sure why, but it unleashed other assertions about why the community does not have a Costco, and several other stores some people want.  Decisions by a corrupt, incompetent city council of course: no citation required.  Other issues followed, each of them uninformed and unverified, but confidently made on the grounds of free speech, to which was added the claim that their opinions about what is true are as valid as anyone else’s.  A corollary is the claim of fake news used by a tea party friend of mine to label anything that conflicts with his liking.  The conversation stream was a little thing of local interest, but it took only seconds to be spread throughout the community, and made available as corroboration for like minded persons elsewhere about discontent in their own towns.  The template is the same for truly important issues at national and international levels.

Here’s the ‘so what?’.  It is the First Amendment, not the Second, on which rest all our other rights.  It must be protected.  The content of speech has remained much the same over the centuries.  Misinformation, intentional or otherwise, hate speech, fear mongering, and ordinary gossip compete with well verified information and informed opinion, as they always have.  What has changed is the ability of persons to efficiently, effectively manipulate the public through the tools of protected free speech, thanks in part to the combination of electronic mass communication and social media.  Unlike the NRA’s claim of the Second Amendment as an unlimited individual right, free speech has always been understood to have limits, but what they are is permeable, flexible, and uncertain.  But one thing is certain: the right and tools of free speech must be employed widely to confront unverified and unverifiable assertions whenever and wherever they appear.  Informed opinion must challenge uninformed opinion, not that it is wrong, but that it is uninformed.  Finally, liberal education from pre-school through graduate school remains the rock on which verified, informed communication among and between us can be built.  There isn’t any other.  OK, that’s not really final, but it’s as far as this essay goes.

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