Free Speech is Not Free

Free Speech is Not Free

We in the United States of America enjoy the blessing of free speech, along with a few other First Amendment protections that include the freedom to peaceably assemble, the free exercise of religion (along with a guarantee that the government will not establish a religion), the right to petition for a governmental redress of grievances, and of course a protection from infringement on the freedom of the press.  These freedoms were guaranteed as a result of oppressive practices by British occupational forces.  It is not at all improbable that these protections were listed first as an in-your-face statement to the King of England.

A lot of freedoms are covered in that First Amendment to the United States Constitution.  However, I am not convinced that those freedoms are free.  To the contrary, I believe that each comes at a cost.  The following is a list of a few of my thoughts about those rights.

One.  A significant amount of blood was spilled on this continent to put those freedoms, those founding principles into effect.  We had a longstanding disagreement with Mother England over these guarantees that ultimately led to the American Revolution.  Even after independence was won, it was not exactly secure as succeeding battles were fought to show that we as a nation would stand our ground against British rule.  When the dust settled, Great Britain became our closest ally in conflicts that, if lost, would take those freedoms away.

Two.  The limits of these freedoms have been tested and tried multiple times at great cost within our own court system.  Those freedoms have been defined and refined and are held sacred.  The area of speech has been particularly tested and as a result we know that we cannot yell “fire” in a crowded theater and fighting words are not protected (see Chaplinsky v. New Hampshire, 1942) nor can we use slanderous words against another person.  (Chaplinsky has been watered down some and more narrowly defined, but the basic principles in that case still apply.)

Three.  Free speech applies to government protection.  While you are generally free to say what you want in the public arena, there is no guarantee that you will be free to say what you want in my home, in a private assembly, or for that matter on my Facebook Timeline.  A family may establish a rule against profanity within the walls of the home, a church may require speaking in hushed tones within its sacred sanctuaries, and you or I can delete comments we find offensive that are posted by someone else on our timelines.

Four.  There are limits on speech in the public schools.  For example, school administrators may control what is advertised on bulletin boards and may direct that certain clothing be worn or not worn.  For example, school administrators may direct that T-shirts with writing or pictures on them may not be worn.  This is partially due to a principle known as en loco parentis, a concept that says that schools act in the stead or place of parents while the child is at school. Many of the limitations on speech are extended to private universities, not because of en loco parentis, but because of the nature of the institution.

Five.  Certain obscenity laws are consistently upheld as constitutional, in particular as these laws pertain to child pornography.

For many years police could arrest people for uttering the f-word in their presence or referring to them with that term or a term that would relate to the officer’s parentage.  Unfortunately, this is no longer the case.  Police are supposed to be able to take the heat.  I still wouldn’t recommend showing this kind of disrespect in some parts of the country.  “Curbside Justice” still rules in some jurisdictions.  There are exceptions to this general rule, but those are rare as is evidenced by the prolific use of that language in public.

Six.  Perhaps the greatest cost of free speech is the consequences of the exercise of that speech.  While we may be free to say what we wish, we are never free of its civil and social consequences.  Indeed, you may shout fire in the crowded theater, but you will be arrested.  If someone is maimed or killed in the panic that follows other prosecution may result.  Threatening the life of the President of the United States is a specific federal crime.  Additionally, there are social consequences.  Overt actions toward the commission of a crime such as battery will serve as grounds for arrest.  Saying something controversial or inflammatory may not lead to arrest, buy most likely will lead to criticism, verbal attack, and even shunning.  It may lead to exclusion to employment, reprimand and termination from employment, lack of invitations to participate in social events, and exclusion in certain social circles.  In sum, it can lead a person to feeling very alone, even ostracized.  While a person is free to speak out on any given topic, that person will never be free from the way others feel about that person.

Closely related to the freedom of speech is the freedom to peaceably assemble.  There are restrictions on assembly.  For example, anti-abortionists are free to picket abortion clinics, but cannot block the entry of others into that clinic nor can they destroy property.  Klansmen cannot interrupt the worship services of a black congregation.  Protestors cannot riot, break business windows, destroy private property, light buildings and cars on fire, jump up and down on police cars, block traffic, tear down statues and monuments, throw rocks at police or the focus of a protest and so forth, though it appears that protestors these days are able to get away with it.

The point is that referring to the First Amendment as freedom of speech may be a misnomer and misleading as there are indeed costs associated with speech and speaking freely may well land a person in civil and social trouble.  For those who don’t care, I suppose it doesn’t matter.