Endangered: The Constitution Part 3

Mark Baisley
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Posted: Apr 07, 2013 12:01 AM

The First of our Bill of Rights 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.”  Four distinct rights are identified here.  This article addresses speech, the press, and assembling.

The last of the four rights listed in the First Amendment is the only one that comes with a condition; peaceably.  Otherwise, this named right is pretty straightforward.  We can collect en masse for parades, in front of the school board, before our state legislatures, and even in droves on the National Mall to express our preferences or outright displeasure with government actions.  You just can’t throw a brick.

The use of the word “petition” here is intended as an appeal or a demand, rather than a list of signatures.  The Founding Fathers very evidently valued the opportunity for a gathering of citizens to convey their displeasures directly to the authorities.  The Declaration of Independence that they signed listed twenty-seven grievances against King George III.  And at the end of their list are the words, “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms.”

Freedom of speech and freedom of the press are close cousins, and listed here together – not separated by a semicolon.  They can be read as, “Congress shall make no law abridging the freedom of speech” and, “Congress shall make no law abridging the freedom of the press.”  The word “abridge” means to reduce or diminish.

It is important to appreciate that these are specific restrictions on government alone.  They are intended as assurances of freedom to both citizens and journalists.  No matter the considerations, governments do not have the authority to craft any law that diminishes citizens’ freedom to speak or journalists’ freedom to report.

And as with the freedom of religion, citizens are incapable of violating these First Amendment rights.  Even the term censorship only applies to government actors.  When newspaper, television or radio strikes out words that they find unsuitable for their subscribers, that is editing.  When government performs or compels the editing, that is censorship.

So what about obscenity, hate speech and yelling ‘Fire!’ in a crowded theater?  The U.S. Supreme Court has, on occasion, taken up this sticky wicket.  Perhaps the most definitive case was Chaplinsky v. New Hampshire in 1942.  Chaplinsky was arrested for violating a New Hampshire statute that outlawed, "any offensive, derisive or annoying word to anyone who is lawfully in any street or public place ... or to call him by an offensive or derisive name."  Supreme CourtJustice Frank Murphy wrote in his majority opinion, "There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words – those which by their very utterances inflict injury or tend to incite an immediate breach of the peace.”

To give this a contemporary vantage, I telephoned two law enforcement leaders in my own community, Commander John Anderson of the local city Police Department and Undersheriff Tony Spurlock of the local county Sheriff Department.  They both answered my question in a similar manner; that if someone hollers “Fire!” in a crowded theater where there is no fire, they would be charged with reckless endangerment or disorderly conduct.  There would be no arrest based on speech, but only on the effects of their deliberate action.

Commander Anderson added that they would react the same way to someone activating the fire alarm.  Undersheriff Spurlock added that the attorney may attempt a First Amendment defense, but case law has been well established to dismiss that argument.  We should worry about the sticks and stones and forget the words.

With all due respect to the Supreme Court of 1942, I do not see an allowance for diminishing any speech, even in the case of “hate speech,” which seems to be a trendy enforcement of political correctness.  Besides, if the charges were applied evenly, President Obama would be obliged to turn in the clergy of every church that he has attended in the past five years.

The only area here where I personally struggle with speech limitations is obscenity laws.  I appreciate there being a filter on television broadcasts.  But I trust that the free market will enforce community decorum without such laws.

Of course, the context of the First Amendment was one of ensuring that citizens could openly hold their political and bureaucratic representatives to account.  The Founding Fathers did not intend to pledge their lives, fortunes and sacred honor to protect the publishing of photographs of a crucifix in urine.  On the other hand, God will not be considering freedom of speech rights when condemning photographer Andres Serrano to an eternity burning in Hell (This is an example of me exercising my First Amendment freedoms of religion, speech and press).

The Founding Fathers gave a specific nod of protections for the American Press in the First Amendment.  Journalists are merely the professional extensions of skeptical citizens.  This is especially true in the 21st Century’s digitally connected world.  And this is fortunate, because the Main Stream Media has become apologists for the Democratic Party, rather than the loyal opposition that the public should be able to count on.  Benghazi is a far bigger scandal than Watergate ever was.  But Woodward and Bernstein remain obediently silent on the topic.

And if the Left were as purist about the second half of the First Amendment as they are with the first half, they would oppose taxpayer funding for the Public Broadcasting Service (PBS).

Next week: The Second Amendment.

This article is the second in a series on the Bill of Rights in the United States Constitution.  For the complete set, see http://finance.townhall.com/columnists/markbaisley/