Among our bundle of exaggerations we as Americans have the pleasure to believe, none is more alluring or deceptive than “We have Free Speech.”
Deceptive? Well let’s see if you say, “That’s a Japanese car” in many workplaces, its ok. But if you say, “That’s a Jap car,” you will be warned not to. If you do it again you’ll probably be fired.
Kids who talk in a chat group or in email about getting back at other kids who torment them in school can be arrested, tried, convicted, and jailed, as happened recently to teens in Virginia and other states. They did nothing but talk. That was a crime but the kids didn’t know. They were taught they had free speech. (Granted I don’t agree with what they said however, I don’t agree that it was criminal either.)
We all know where the belief in free speech comes from. The First Amendment to the US Constitution states, “Congress shall make no law … abridging the freedom of speech or of the press …” The 14th Amendment makes that applicable to the states as well. Our patriotism focuses on that and sees no further, missing all the glaring contradictions.
Yet it’s the contradictions that control our life.
Few seem to understand that the First Amendment does not confer ANY absolute right of free speech. What it does is place a limit on the power of one branch of government to control speech, the legislative branch. And even that limit is more myth than reality.
Our government has three branches: Legislative, Executive, and Judicial. The First Amendment only talks about what Congress can do. There’s nothing in the Constitution about the Executive or Judicial branch not limiting speech, and those branches do it routinely when it serves their own interest.
We see it every day. For example, government employees hired as judges impose gag orders on everyone in the courtroom when they like, and are answerable to no one but other judges.
The entire Grand Jury system, federal and state, operates in secrecy. Free speech? Anyone revealing more than the name and decision can be jailed. And sometimes the agenda and even the decision are secret. Obviously there’s no free speech whatsoever there.
The Executive branch routinely requires secrecy of its employees, puts whatever documents it chooses beyond the public eye, can prosecute anyone who violates its often whimsical, self-serving security net.
Departments under the Executive Branch are free to limit our speech if someone feels it serves a public interest. One example: real estate salespeople can be prosecuted for revealing to an inquiring home buyer that someone in a house had AIDS. This isn’t a privacy matter. No one need be named. Merely confirming that someone in a house had AIDS is prosecutable. HUD, the Department of Housing and Urban Development, made that rule. HUD is in the Executive Branch where the First Amendment doesn’t apply.
In the daily world such as the family dinner table or a baseball game, an Internet chat room or the workplace, we have only the freedom of speech the person in charge allows.
The First Amendment has no control over limits on speech you set where you make the rules. If your chauffeur or your secretary or your shop foreman tells you off you can fire them. They have no Constitutional protection.
If the father of a Little Leaguer uses language the umpire doesn’t like he can eject dad from the ballpark. Dad’s speech isn’t constitutionally protected because the Little League is not the government.
That important difference means very few of our daily activities have First Amendment protections.
And in its few protected areas the First Amendment means considerably less than it says. Congress, state legislatures, and local governments have passed hundreds of laws abridging freedom of speech.
None of these is secret. We know them.
For example free speech ends at a line beyond which it’s called libel and slander. Free speech ends at a line beyond which it’s called invasion of privacy. That line moves with the times. It moved a lot when the NY Times won a case establishing that public figures have far less privacy than ordinary people. Free speech ends at a line beyond which it’s called commercial speech. There are bookshelves of laws passed by Congress and the states, and libraries of rules made by government departments, limiting commercial speech.
Our run-away intellectual property laws limit speech. If you want to sell Uncle Fred’s vintage English riding boots on eBay, don’t expect to call them “shabby chic.” Designer Rachel Ashwell owns the term “shabby chic”, and is a subscriber to eBay’s Verified Rights Owner (VeRO) program. If eBay’s employees or Rachel’s spot “Shabby Chic” in your auction headline, eBay must cancel your auction due to trademark violation. Congress gave Rachel the right to steal the term shabby chic away from the rest of us. In fact thousands of Rachels have been allowed to steal thousands of everyday terms. Free speech? Copyright and trademark laws limit your right to use your own name if it’s Howard Johnson, or Thom Mcann, or Lillian Vernon, or any of the thousands of names corporations copyrighted or trademarked. (How can someone own words? If like Coke or Pepsi you have created a brand then yes you can own your trademark, however since my name is John can I copyright it now and henceforth forbid anyone from using the name.)
Free speech can put you in jail if it’s “fighting speech.” You can be prosecuted and jailed for provoking someone.
Free speech can end in a jail cell if it can be called “inciting to riot.” It can end in a cell if it’s called “reckless endangerment.” (Unless of course you do it in the name of certain religons)
Free speech ends at any arbitrary line Congress draws “in the public interest,” as it defines that. In Florida an 86-year-old grandmother was handcuffed and jailed for mouthing off to an over-zealous airport baggage inspector, “What do you think I have in there, a bomb?” This was not a post 9/11 incident: it happened in 1988.
Children are routinely suspended from government-run schools for writing on walls. Free speech ends at defacement. They are being persecuted if something they write disturbs an administrator. A teenage artist who included an anti-social poem in her painting was required to undergo three months of counseling. We read about five-year-olds suspended from kindergarten for pointing a finger and saying, “Bang.” (The age of “Zero tolerance” really stands for Zero intelligence)
The Internet and shrink-wrap software licenses are loaded today with bars to free speech. One of these, McAfee’s claim you can’t publish reviews of their products, didn’t stand up in court, but someone had to pay thousands of dollars to win that case. Microsoft now vows to stop anyone from publishing benchmarks of their products without prior permission.
Over-reaching claims are now the norm as Congress partners ever more with business and against customers. Laws like the Digital Millennium Copyright Act (DMCA) effectively nullify the First Amendment. They provide the legal underpinnings for threat and coercion.
Local governments and institutions, universities especially, elevated the censorship of political correctness into law or rules. They dictate that speech which might possibly hurt someone’s feelings or be taken as insulting is grounds for fining or firing or expulsion. “That’s a Jap car” rather than “That’s a Japanese car” will bring quick reprisal in academia especially. No one need actually BE INSULTED. The mere words trigger penalties.
Speech in the US is free only if it’s within approved limits. As much as it hurts me to say this it’s only thanks to the American Civil Liberties Union there aren’t more limits to speech, because government is forever erecting barriers the ACLU knocks down. (While I personally believe the ACLU oversteps its authority in many cases, i.e. the few should not control the many period, sometimes they get it right.) On the other side of the coin we have even more limited free speech because of the ACLU, it’s the two headed monster that we love to hate.
Popular myth notwithstanding, many nations have as much freedom of speech as we have or more. They didn’t in 1776 but they do today. Are they going in one direction while we go in the other?
Some are. A French court recently struck down a string of speech restrictions American software publishers tried to impose there. They are the same restrictions our Congress gave publishers the power to impose on Americans. Our Congress and courts side with the publishers.
The First Amendment was written for people with the Pioneer Spirit. We are people with the Pioneer Stereo. Times have changed and the interpretations of the First Amendment changed. Surveys have shown again and again the First Amendment would not be ratified by Congress, state legislatures, or the people today. (This is just unspeakable my friends)
Elections prove Americans don’t care because we re-elect lawmakers who don’t care. I’m glad the founding fathers aren’t around to see this. They believed the people would guard their freedoms and gave us the tools to do it. They never dreamed Congress would systematically betray us and we wouldn’t care. This deservers repeating WE WOULDN’T CARE.
In Thomas Jefferson’s hometown there’s a huge Free Speech chalkboard on the downtown mall where people can write anything they like. It all gets erased every Thursday. The powerful belief we Americans have in our myth of free speech is important because it helps sustain some of us from insanity.
We will always have the right to curse the government. They’d be fools to take that away because its a government survival tactic. Letting people blow off steam harmlessly keeps resentment from building up. Right now you might be motivated but tomorrow you’ll be cool. That’s what they hope anyway.
The age of the professional politician has to come to an end, it’s called Public Service folks and it is time to stop electing people just because they have been there…JT