After a discussion last evening with friend and fellow blogger John about whether it would ever be acceptable to place certain limitations on 1st Amendment freedom of speech, and if so, under what circumstances. Now, it’s been a lot of years since my last ConLaw class, so I had to dig out some notes and texts, but let us review briefly, the history of free speech in the U.S..
The U.S. Constitution was signed and ratified in 1787, but the first ten amendments, commonly known as the Bill of Rights, was not ratified until 1791. The first real curtailment of free speech came some seven years later, with the Sedition Act of 1798. At the time, war with France seemed imminent, Congress and President John Adams feared treason by French sympathisers within the U.S., thus was born the Sedition Act of 1798, which required criminal penalties for persons who said or published anything “false, scandalous, or malicious” against the federal government, Congress or the president. The law expired three years later, but not before 25 citizens were arrested, including a Congressman who was convicted and imprisoned for calling President Adams a man who had “a continual grasp for power.” Think about this for a minute, folks. Would not every single person reading this today be in jail, for we have all said much worse than that about our current Idiot-in-Chief!
Then in 1917, Congress passed the Federal Espionage Act prohibiting false statements intending to interfere with the military forces of the country or to promote the success of its enemies. Do you begin to see where that could come under a variety of interpretations? And then in 1918, the law was expanded to prohibit any statements expressing disrespect for the U.S. government, the Constitution, the flag, or army and navy uniforms. Think Colin Kaepernick and the NFL?
The first challenge to the law brought about the Supreme Court’s first case in free speech in the case of Schenck v. United States, Justice Oliver Wendell Holmes wrote the opinion of the unanimous Court, which sided with the government. Justice Holmes held that Mr. Schenck was not covered by the First Amendment since freedom of speech was not an absolute right. There were times, Holmes wrote, when the government could legally restrict speech. Though it is a fascinating case, I won’t bore you with it here, for it is not what this post is about, but rather I use it only to lay a foundation.
Now, why did this come up now? Because of this headline in the New York Times:
US Votes Against Resolution Condemning Nazi Glorification
Well, that sounds rather like the U.S. is planning to encourage Nazism, doesn’t it? Sounds rather like the work of Bannon/Spence/Trump, eh? The story, a short Associated Press piece, does little more to enlighten the reader, but there is more if one scratches a bit beneath the surface.
First of all, though the U.S. and Ukraine are the only two nations to vote directly against the resolution, there are 51 nations that abstained from voting. Second, while I would love to blame Trump and come down hard, the fact is that this is an annual resolution that the U.S. has voted against since at least 2012, so it is really nothing new.
And lastly, perhaps most importantly, the primary reason we cannot support this resolution is the resolution calls on all UN member nations to ban pro-Nazi speech and organizations and to implement other restrictions on speech and assembly. Now do you see the problem? But this, still isn’t quite the point of this post. Yes, yes … bide your time, friends, for I am old and slow, but I am coming to the point.
Some in the media, notably Britain’s The Independent and our own Newsweek, have attempted to link the decision not to vote yea on the U.N. resolution to Trump’s failure to condemn Nazism after the deadly Charlottesville rally in August. Perhaps, who knows? But it doesn’t matter, for either way, we cannot afford at this time to open that potentially wide door to banning any part of free speech.
It is what’s known as a slippery slope, and you’ve heard me refer to it before. A slippery slope is an idea or course of action which has the potential to lead to something unacceptable, wrong, or disastrous. Now, think back to the Sedition Act of 1798 for a minute. You could get into big trouble for saying or writing anything “false, scandalous, or malicious” against the federal government, Congress or the president. Now, think how thin-skinned the person occupying the White House is. Think how he threatened to use libel laws to stifle the press for saying ‘mean and untrue’ things about him. Think how he defines “truth”. Think about this statement: “Trump has no conscience, is not very intelligent, wears a bad toupee and has ugly rolls of flab.” I just made up that statement, but under the Sedition Act of 1798, I could spend up to ten years in jail for publishing that statement on this blog.
Now, we are not talking about a Sedition Act, but simply about banning Nazi speech. Believe me, I dislike Richard Spencer and all the neo-Nazi thugs as much as anyone but … if we take away their rights to voice their opinions, we leave the door wide open for other constraints on free speech, such as insulting the president or a member of Congress. Where is the line drawn, and more importantly, who draws that line? Congress? So far, they have proven willing to lick Trump’s boots and play nice with him, for the most part. An executive order?
I am not being an alarmist, so much as a cautionary. I do not trust Donald Trump. He is a sociopathic narcissist who will stop at nothing to further his own desires, to further bloat his already massive ego. And he cares not one whit for this nation nor its citizens. So, given half an opportunity, would he institute laws making it illegal to insult him? Absolutely. If we agreed to the U.N. resolution, it would crack open that door, and before you can bat an eye, he would have it open wide. I, for one, am not quite ready to give up my rights to free speech, and while yes, I would like to see curtailments on hate speech, this may not be the right time. Meanwhile, we can and must punish anybody who takes Nazism a single step beyond speech and into action.
When we see a headline, hear an idea or opinion, it always pays to do a bit of digging, for often what we see and hear is but the surface, and the truth lies beneath the surface.