A Lesson in the First Amendment

What is freedom of speech? The Supreme Court has interpreted speech, to be not just the vibrations from our vocal cords emanating from the mouth,  but a much broader definition to include writing, printing, broadcasting, using the internet, plays, movies, and in fact any form of expression including symbolic expressions such as flags, crosses, burning crosses, or burning flags, and even artistic expressions.  That would include baking wedding cakes and also creating sculptings.  If we just go back to the basics, the answers are already there and are crystal clear.  

So what does the First Amendment say about freedom of speech (really all forms of expression)? The concern of taking down statues is really the issue of First Amendment Rights.  We are given the right to express ourselves and to think about what we want to think, even if it is objectionable and hateful.  There is no restriction who can do so regardless of their political affiliations.  The Aryan Nation can peacefully march through Jewish neighborhoods. The United Daughters of the Confederacy may erect monuments for whatever purpose they see fit, even to traitors, and even if the Southern Poverty Law Center (SPCL) says they are white supremacists. There is a civilized and legal way to deal with public memorials that are not in tune with the majority of the community. It requires all sides to be heard. It needs fairness to all stakeholders. Just because there are some people that object to the symbolism of a particular statue, others may feel just the opposite. A wise decision-maker must weigh all the pros and cons and make a fair ruling. That is how a civilized society handles it.

The government is restricted from interfering with your right of expression and affords the greatest First Amendment protection, especially for “political” commentary.  However, private individuals are not prevented from critiquing the expression, favorably, or disparagingly, but of course, no physical action to destroy or deface such monuments is legally allowed. To do so is like a poisonous gas when the wind changes, it may just come back to kill you.

There are some forms of “speech,” which the government has a duty to regulate. If expressions are false, such as defamatory statements that damage you.   This was settled by civil liability laws through cases like New York Times v. Sullivan (1964).  Threats to commit a crime are not protected (Watts v. United States 1969). Words that would by their nature provoke a fight are not allowed (Cox v. Louisiana 1965). Obscenity is not protected and can even lead to jail terms (Miller v. California 1973). Falsely announcing a fire in a theater is not allowed and does not have First Amendment protection, in fact, is punishable. Speech to incite violence, anarchy, or breaking the law is forbidden. Misleading commercial claims are not protected (Virginia Pharmacy v. Virginia Citizens Council 1976).  For visual arts, even on private property, they may have to conform to zoning regulations and may not create a hazard, such as a billboard by a freeway with distracting content that could contribute to driver inattention.

It will surprise you what forms of speech do have protections in the USA from the First Amendment.  “Hate speech” that shows animosity or disparages an individual or group based on race, color, religion, sex, disability, or sexual orientation. This should not be confused with a “hate crime” that requires some hostile or violent action. The Supreme Court has repeatedly refused to include “hate speech” as a forbidden form of speech unless it calls for imminent violence on a person or group.  Blasphemy is considered protected as well. You can take the Lord’s name in vain as much as you want.

Call me dated, but I believe that freedom of speech is sacrosanct. The Founders were indeed wise in allowing self-expression. The mob taking down a statue is a self-appointed form of violating the First Amendment. It is, in fact, illicit censorship. Censorship has had a checkered history, but overall, it has decreased in the last few decades.  Nevertheless, there is still censorship present.  It is, however, closely regulated and applied very sparingly only by authorized agencies with constant First Amendment challenges, but certainly, under no circumstances can it be tolerated by civilized society if exercised by a maniacal mob. The mob does not have the right to censor or destroy and must be stopped by the rules of law. Unfortunately, the law has been intimidated to perform their sworn duty by mob rule so far, that must be restored for a civilized society to work. That is why the government must take back control. Mob rule is not capable, qualified, or allowed to govern, as we have seen in the “free zone” of Seattle.

 You are not, however, protected from individuals exercising their right to critique your speech, your opinion, and what you believe.  If you put up monuments to Hitler or Stalin and Lenin in your front yard, or erect giant copper and tin soldiers with guns meant to intimidate people, your neighbors have a right to not talk to you, not to associate with you, not to vote for you, not to loan you money, not to hire you and your boss may even fire you from your job as you are just not a person that promotes your companies values or mission.  Your neighbors are, however, not free to throw eggs at your statues or tear them down. 

I do believe that statues that do not reflect the community’s thinking on public land must be rethought, as do public facilities that are named for individuals who may not be appropriate or relevant at this time in history.  It has to be a community decision that must make the changes of public monuments, and it is not the mob that can decide to spraypaint, decapitate, or topple them. Taking the Confederate flag off Mississippi’s State flag was done correctly.  The representative government of the state made the decision and took action to remove it, the right they possess.

Freedom of speech is often put to the test when we are faced with points of view, speech, artworks, and expressions of belief with which we do not agree.  There are segments of our society that just as soon prefer to silence diverging opinions. This is surprisingly equally exercised on the politically leaning left as the right when studied by legitimate scholars. Both use unacceptable means to silence the other side. Violence is one of those inappropriate and uncivilized means. Surprisingly it is the temples of learning, the colleges that are particularly notorious in shouting down speakers, protesting and petitioning the administration not to allow such a harmful lecturer to subvert the student body. Such options are ultimately harmful to the democratic discourse, depriving all sides of an issue to be vetted. Discussion is terminated through intimidating the dissonant individual by name-calling, ad hominem attacks, being uncivil, insulting, and even threatening. It is just like removing memorials, an act to silence.  It is not wrong to comment and critique, but it is wrong to destroy or deface. That is the moronic way, the Marxist and Nazi way, just like book burnings.  For memorials that are on private property, you may just have to live with it.  With public memorials, the public must decide if the memorial is inappropriate,  not the mob. There is an established legal process to change publicly owned works of art.   The First Amendment was written for a reason.  If the public decides to remove a memorial, it takes public input and public voice, not mob action. I am not partial to keeping Confederate tin soldiers dotting our landscape, but I am very concerned about the rule of law, due process, civility, the Bill of Rights, our Constitution, and our way of life.  If you are OK what is going on in our nation with lawlessness, self-admitted Marxists outside of government calling the shots, lack of civility, the stealth racism promoted by organizations like “Black Lives Matter”, defunding the police,  mob rule that doesn’t even know which statues are Confederate and which are not, and all the rest of it we have quite an unsettled decade ahead.

The mark of a civilized adult person is above all civility, something I have seen slip in our collective behavior recently. Skin color, for example, is not a legitimate criterion to disparage an individual, even if it is orange. Disparaging remarks like calling people stupid is not a civil or intellectually appropriate way to discuss an issue. The attempts to silence, take down and destroy the opposition even if just symbolically is both moral and intellectual bankruptcy, and we should resist the temptation to do so.  It is not a badge of honor or a sign of intellect to act or speak like a savage, a barbarian, or a child.