Friday, March 4, 2011

Freedom comes with a price

If you study the Constitution, you know that the first amendment includes what we generally call Freedom of Speech.  Although from time to time other "rights" move to the forefront, this one most likely affects our society more than any other on a regular basis.

Questions regarding Gun Control or Separation of Church and State also come up, but we might go months or even years without any truly significant public discourse about them.  Speech seems to come up fairly regularly.

Freedom of Speech can be the ultimate hot button, and for good reason.  With a few exceptions, we allow anyone to say anything.  While I firmly believe that's a wonderful thing, it does come with a cost.  We allow people to say hurtful things.  We allow people to exaggerate.  We allow people to lie.  We allow people to express opinions way outside mainstream thought.

This week the United States Supreme Court confirmed that Free Speech, even speech considered hateful and hurtful, remains legal speech.  Notwithstanding the hurt it creates, I think that's probably a good thing.  That said, it doesn't mean I agree with what's being said, nor with where it's being expressed.

Contrary to the literal words of the Constitution, Congress can make a law abridging Freedom of Speech.  Years ago, the Supreme Court acknowledged that.  In a ruling usually referred to as Schenck, justice Oliver Wendell Holmes said this:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

So, the question about what is or is not protected speech, according to Holmes, hinged upon two things...a clear and present danger, and something that Congress has a right to prevent.

In a later case, Brandenburg vs. Ohio, the standard was modified, and identified as: that which would be directed to and likely to incite imminent lawless action.

If we apply that standard, there aren't a lot of situations where speech can be legally constrained.

Now, one thing the Supreme Court never said is that there is a second "freedom" associated with Speech.  Yes, you are free to say almost anything you wish, but, more importantly, you are also free to enjoy the implications and results of having said that.

You may call your boss whatever you like, but you may find yourself looking for a new line of work.  You may accuse your spouse of cheating, or call him/her terrible names, but you may find yourself single once again, you may publicly make any sort of pronouncement you wish about the state of things, but your friends may desert you.  Like most other things, freedom of speech comes with a price.

This week, the Supreme Court decision regarding the right to protest at funerals was, I think, a proper legal decision.  I believe it is up to our society to find ways to protect its members during their most vulnerable times, and some sort of private space restrictions, such as those enacted by many states, seem reasonable.  I wish that was not necessary, but, sadly, it is.  Freedom of Speech does not automatically include some sort of conscience clause, although it might be nice if it did.

When I see protesters around the world being shot, trampled, or attacked simply because they wish to peacefully express their disagreement with a government policy, I like to think this country has finally moved beyond that.  I can recall the Civil Rights marches, or the Vietnam protests, which, in truth, looked little different.

In the end, Freedom of Speech is worth having, even though that big, general principle can mean individual pain.  I wish it were not so.  I'm not naive, but I wish we had leaders who could heal rather than divide.  I think we all do.

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