Saturday, November 2, 2019


Week 45: Free Speech

The one thing that is most precious and essential to a free people and most odious and dangerous to a despot is free speech. This is particularly true of political speech. Holding this to be true, it is an awe-inspiring thing when one witnesses the exercise of speech, particularly political speech, in a society or culture that does not recognize the importance of freedom of such speech, or more broadly, expression.

Recall the image of “Tank Man,” the person who placed himself in the path of the tanks used to suppress the demonstrations in Tiananmen Square in 1989. He was one of the brave souls protesting the brutal communist regime.

Consider Alexander Solzhenitsyn, the Soviet mathematician and dissident who was first imprisoned and later exiled for speaking out against the hypocrisy, tyranny and repression of the communist state. His first imprisonment in a forced labor camp resulted from a criticism he wrote about Stalin in a private letter to a friend. SMERSH, the counter-intelligence forces of the Soviet army, discovered what was in his letter and the rest, as they say, is history.

Eerily, I receive an email each day that includes scanned images of mail that will be delivered to my house that day. This started after I created an account with the Post Office to leave special instructions for the delivery of a package (which incidentally has yet to be delivered, three months after it was supposed to have been delivered). This may seem mundane; they can see the junk mail I receive, bills for utilities, trash service and the like. From other pieces of mail, they can see that I have been a patient in the healthcare system. They can see that I support the Vitae organization. They can see that I am a Libertarian. They can see that have a connection to the Center for Practical Bioethics. They can see that I am a gun owner. Those are just the things they could deduce from my mail in the past week.

Why do they need this information? Who sees this information? What are they doing with this information? At what point might my support for or involvement in these organizations or causes be used against me? At what point might I abandon any discussion about my beliefs out of fear instilled by the nature of the current political debate, knowing that those in power could conceivably access and use the vast amounts of information gathered each and every day, including the mail that is delivered to my home. What repression of one’s expression might come from one letter? Solzhenitsyn could opine on that.

Certainly, a federal agency would not use these and other types of information against its own citizens in order to silence them! I wonder if Martin Luther King, Jr. would agree with that, knowing Kennedy’s use of the Federal Bureau of Investigation did just that, a practice which actually began under Dwight D. Eisenhower, showing that the abuse of power is not the stock in trade of one party or another. King’s actions, and particularly his rousing speeches, threatened the established order of Jim Crow America. Imagine, for a moment, what our society would be like had the government been successful in its repression of King’s right to free speech and the free speech of countless others who dared raise their voices to injustice. I may not be permitted to dine in the same restaurant as my buddy Ben, who happens to be black. I may not be able to attend with my niece an event that supports the protection of life, while someone with an opposing viewpoint may not be able to do the same with their niece in support of abortion – all depending on which way the political winds are blowing at the time.

Before we get too deep into examples, let us return to the fundamentals at play.

Colonial rule in the eighteenth century had as its hallmarks a variety of restrictions on the rights and liberties of British subjects living in America. Among these hallmarks were restrictions on and punishments for political and religious speech. With peril to their own well-being, colonists would gather in places, such as under the Liberty Tree at the corner of Essex and Orange (now Washington) streets in Boston to speak with other citizens about the topics of the day, being forbidden to assemble freely in other locations. [It seems reasonable to assert that this may have foreshadowed the “time, place and manner” restrictions on free speech that exist today.]

After Independence and as the new Constitution was being debated in the hopes of ratification, representatives for many states demanded assurance that certain rights would be protected. The Articles of the Constitution discussed the structure and affirmative roles of the three branches of government, but it did not explicitly address those things that the government should be prohibited from doing. Enter the first 10 Amendments to the Constitution of the United States of America.

The Bill of Rights was revolutionary. It restricted the role of government and affirmed the primacy of the individual and the individual’s rights vis-à-vis society.

On June 8, 1789, James Madison, in a speech to Congress, introduced the Bill of Rights. Among these, he noted, “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

Georgia Representative James Jackson addressed the House, saying, “The gentleman [viz., Madison] endeavors to secure the liberty of the press; pray how is this in danger? There is no power given to Congress to regulate this subject as they can commerce, or peace, or war…An honorable gentleman, a member of this House, has been attacked in the public newspapers on account of sentiments delivered on this floor. Have Congress taken any notice of it? Have they ordered the writer before them, even for a breach of privilege, although the constitution provides that a member shall not be questioned in any place for any speech or debate in the House?”

Some of the drafters believed that it was implicit in the Articles of the Constitution that if a function was not expressed in the document, the government would not be able to perform that function. Given their experience living under British rule, many felt that implicit restrictions were not sufficient to guarantee the rights of the new nation’s citizens. The Bill of Rights was adopted and the Constitution was ratified.

As Lord Action rightly observed, “Power tends to corrupt, and absolute power corrupts absolutely.” Ours is, after all, a government composed of human beings, each of whom – each of us, being imperfect and fallible. Therefore, it may be unsurprising to reflect on the Sedition Act of 1798, the Comstock Law of 1873, and the Smith Act of 1940, to name a few; legislation with the goal of exerting government control over the individual by restricting the free exchange of ideas. The belief, as often stated expressly in these acts, is that certain ideas one might express could threaten to overthrow the existing political structure. But I put it to you, are we not called upon to do just that in the Declaration of Independence if the form of government does not advance the aims of the citizenry?

In addition to these, there have been many state and local regulations that have restricted expression and thought. Banned books are but one example. Think about the adverse impact on society had these books successfully been banned, as was the intent of those in power: The Canterbury Tales, Catch-22, The Grapes of Wrath, Naked Lunch, United States-Vietnam Relations, 1945-1967: A Study Prepared by the Department of Defense, and Lady Chatterley’s Lover, to name a few.

Perhaps most frightening is the intent of those in power to regulate news and “fake news.” In recent weeks, the founder of Facebook, to be sure a somewhat unsympathetic character, was called before Congress to discuss what his company, which provides a relatively open forum for expression, should do to eliminate speech that Congress finds threatening. How reminiscent this situation is of Representative Jackson’s comment in 1789! What Congress is doing today is the very thing he said we should not fear.

While Facebook can be viewed, in some senses, as a scourge on humanity – reducing our conception of friendship to posts about what one ate for dinner and People of Walmart twerking videos (and yes, I write this as an offending party), as opposed to deep and meaningful conversations among people – it, at the same time, can serve and does serve as an open public forum for the sharing of thoughts and ideas. Open and free: two concepts that are anathema to power brokers in the halls of Congress and legislatures in the 50 states.

Even more concerning, although only slightly more so, than the strong-arm tactics of Congress, is the call of one candidate (i.e., Kamala Harris) to have another politician’s (i.e., Donald Trump’s) Twitter account shut down. Think about that for a moment. A person who desires the Presidency is willing to publicly state – nay, demand – that another person’s free expression be curtailed, because she doesn’t like what he says or how he says it. If one politician can dare to make such a demand related to the President of the United States, perhaps the most powerful person on Earth, what qualms would she have in making such demands about your free expression or mine? How could any candidate who makes or supports such a demand be a qualified defender of the Constitution?

Are we, as an American people, so dim-witted that we cannot review, research and make conclusions about the information we consume? Those running for office seem to think this is the case. In fact, they depend on in it, and in so depending, they seek to foment fear and mistrust among the citizenry.

I reject this notion!

I can abide debates about universal healthcare, free higher education and a government nanny state from cradle to grave. Politicians who seek to advance these measures are merely harbingers of our financial ruin as a nation. What I cannot abide is ANY restriction on the freedom of thought, speech, press or expression. Politicians who seek to advance these measures are unabashed harbingers of our moral ruin as a nation. They lead us to the edge of a very slippery slope and are right behind us to push us toward that first step. At the bottom of that slope is servitude, mental and physical imprisonment, and death. Show me – anyone – an example from history in which the shackling of the minds of citizens has not resulted in such a fate. I dare say such an example is not to be found.

As you hear such restrictions being pushed, it may be easy to fall into the trap of, “Trump is bombastic and unseemly,” or “Bernie is a socialist,” or “Warren is a hypocrite in her corporation-bashing.” There’s truth to all of these statements, but should we not be the ones who weigh and judge that for ourselves? Do we really want so-called fact checkers at Twitter or CNN or (God forbid) in Congress making those decisions for us? Are they truly better at making such determinations than you and I? Are they really neutral arbiters in terms of political, moral or ethical truth? If you believe they are, I would love to understand your position. The drinks for that conversation would be on me!

As you listen to the candidates speak about what topics and beliefs should or should not be permitted in the public forum, consider the interests at stake. While I am sure there may be exceptions to this statement, the politician’s interest is in sustaining his or her power. The interest of the citizen (i.e., you and me) is the protection and promotion of individual liberty and expression. If the interest of the former wins out over the interest of the latter, are we not all doomed to subjugation? While the political winds may blow favorably for one political perspective today, it most assuredly will change in favor of another tomorrow.

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