No Such Thing As "Free" Speech

Hear, now, the first amendment to the Constitution of the United States regarding free speech:

"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."

These words make it clear we can speak without restraint and say what we wish.  Right?

Wrong!

The Constitution is brief, and its guarantees are broadly stated.  On the whole, the paucity of specific language is the secret of success for our paramount document of government.  The necessity of interpretation has made it possible to fit our laws to changing conditions.

However, we have to deal constantly with the mischief of a literal construction of the Constitution at the one extreme, and with willful interpretations at the other.

Nowhere is this more forcefully demonstrated than in the matter of free speech.

On the one hand we have the anarchists and pornographers who peddle their foul wares under the umbrella of free speech.  In opposition we have the alarmists who would repeal the first article of the Bill of Rights to suppress all evils of democracy.

As usual, the extreme view is distorted.  There is an adequate body of jurisprudence to make speech both free and responsible.

Our Founding Fathers expected that individual states would spell out our rights to a greater degree in their own constitutions and laws, and this was the case.

The Ohio Constitution is typical of those for all other states and has this to say about free speech:

"Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right, and no law shall be passed to restrain or abridge the liberty of speech, or of the press."

It will be noted that Ohio, and the other states without exception, have coupled RESPONSIBILITY to the RIGHT.

Both federal and state courts have said repeatedly that the First Amendment "cannot have, and obviously was not intended to give; immunity for every possible use of language."  Contrary to popular opinion, there is a large variety of statements that cannot be said in a free society.

I spoke on the subject of free speech recently to an assembly of high school economics and psychology students.  They were amazed to learn there were so many restrictions to absolutely free speech.  I was amazed to learn that my presentation was the first the students had ever heard on this topic.

In my opinion, every high school should devote at least one semester of work on the U. S. Constitution.  It intimately affects us, and an understanding of its scope is essential to good citizenship.

The most obvious bridles to free speech are the strict laws against slander (or libel, when published).  The greatest injury against a free citizen is damage to his reputation and to his means of earning a living.  Those who would defame another person, whether through malice or carelessness, do so at peril to their own liberty and pocketbook.  School-hall and bridge-club gossip is irresponsible and illegal slander, even if it is so commonly practiced that its control is impossible.

Sedition is slander of the state, and at one time was ruthlessly put down by kings and despots.  A federal sedition law - making it a crime "to conspire to oppose any measure of the government" - was one of the earliest measures adopted by the United States.  President Thomas Jefferson pardoned the four men convicted under it, while Congress refused to reinstate the law when it expired.

Limited laws prohibiting sedition were enacted during the Civil War, World War I, and World War II.  The remnant of sedition control is on the books today as the Anti-Communist Act which makes it unlawful "to advocate the overthrow of the government by force."

Espionage, or the revelation of information affecting national defense, curtails a large area of free speech.  During a war, casual remarks about the movements of friends in service or about work going on in local factories are strictly prohibited.

Most citizens would agree that slander, sedition and espionage are proper prohibitions of free speech.

Not so clear-cut are their attitudes about statements that some feel are obscene, encourage crime or disturb the peace.

State laws, and the most recent decision of the U.S. Supreme Court, seek to prevent utterances that "tend to corrupt public morals."  In this category are the measures against obscenity, profanity and blasphemy, though what is accepted by the public - and later the courts - changes constantly.

The "campus revolt" began a few years ago when officials of a California university reprimanded a student newspaper for publishing a poem containing old Anglo-Saxon four-letter words.  Though such words are still shunned by discerning people, our reaction has changed from hostility to the lower-level of disdain, and social confrontation over the subject has waned.

Statements that cause the hearer to commit a crime or illegal act are not permissible under the guise of free speech.  You cannot, for example, laud treason or suggest that government officials should be assassinated.

A well known folk singer got in trouble with the Internal Revenue Service over tunes glorifying the refusal to pay income taxes.  Anti-war protestors who urged young men to burn their draft cards were prosecuted.  Those who fled military conscription are unable to return home even though the Vietnam war is over.

All these ignored the responsibility clauses of various laws restricting uninhibited speech.

Regardless of your personal views of war, taxes, or conscription you cannot say that the laws pertaining to these matters can be disobeyed.

You may, however, condemn them in strong terms and urge their repeal through petition and ballot.

Finally, your free speech cannot disturb the peace.  You will end up in the pokey "toot sweet" if you stand up in a crowded theatre and falsely yell "fire!"  Picketing with placards to dramatize opposition is a popular form of expression.  Mass picketing that tends to create violence is outlawed in most states.

The indiscriminate use of loudspeakers to magnify speech is illegal nearly everywhere.  You cannot shout truth or lies in a public library, city hall or any other enclosed space without permission and advance notice.  You cannot make a speech while standing in a street or other public thoroughfare.

"My gosh," exclaimed one young man in my high school audience, "what CAN you say?''

Though the restrictions, when enumerated as above, seem pretty inclusive, what is left to say freely is enormous.

The most important area of free speech is that of politics.

You may criticize the government and its officials in the most outrageous language, including deliberate falsehoods, so long as you don't advocate the use of force or impute defects in personal character.

The widespread criticism of President Nixon and Vice-president Agnew is unprecedented in severity, and many observers feel the publicity went too far.  Yet, the traditions of free speech were maintained in that responsibility for remedial action was held to the Congress and to the courts.

When you stop to think about it, the great latitude allowed us by the U.S. Constitution and the various state laws permits much mischief.

But it also provides the antidote whereby men of reason and good will can overcome the careless damage of thoughtless tongues.

And therein lies the full meaning of our foremost civil right - free, and responsible speech.

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