Speech Isn’t Free Anymore

by Diane Rufino, May 20, 2017

George Washington once warned: “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”   Indeed, the first and most essential principle of a free society is allowing its citizens to have a free flow of words in an open forum.

The First Amendment

The First Amendment –  “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.”

The first phrase of the amendment controls the language of the entire amendment:  “Congress shall make no law….

Then it explains how Congress cannot regulate five things:

• Religion (It cannot make a law establishing an official national, government-sanctioned religion, NOR can it pass a law prohibiting the free exercise of one’s religion
• Speech
• Press
• Assembly (peaceful assembly)
• Petition government

These 5 things are considered essential to individual liberty and to a free society (“Ordered Liberty”)

Now, Liberty is understood by our Founders to be the extent to which one can freely exercise his or her rights – without burdening another’s free exercise in his or her rights.

The Bill of Rights were proposed and sent to the states by the first session of the First Congress, which convened in New York City in March 1789.  The anti-Federalists forced James Madison to provide a Bill of Rights to amend the US Constitution that was drafted at the Philadelphia Convention in 1787 and adopted in 1788 by the requisite number of states – 9 (as per Article VII).  The Bill of Rights (our first 10 amendments to the Constitution) was later ratified on December 15, 1791 and had, as its primary purpose, to provide express limits to government power as it relates to the individual. In fact, the preamble to the Bill of Rights (which everyone should read and memorize) reads:

“In order to prevent misconstruction or abuse of government powers, the Conventions of a number of the States, at the time of their adopting the Constitution, expressed a desire to add further declaratory and restrictive clauses. Such further restrictions will increase public confidence in the federal government and will best insure the beneficent ends of that institution.”

****  This is why we say that the Bill of Rights doesn’t grant us our rights; it protects them. The federal government is one of limited powers and on top of that, it is prohibited from legislating or otherwise regulating the fundamental rights and civil rights enshrined in the Bill of Rights.

The purpose of free speech is to encourage individuals to contribute their ideas and opinions to others – to put them out there in the so-called “marketplace of ideas.”

The metaphor “marketplace of ideas” is based on a market economy – on free exchange in the market. In such a market, many products are available and we, as rational (and hopefully, fairly informed and intelligent) consumers, choose freely what we want from among those available after careful comparison and after careful weighing of their relative quality. 

Free Speech makes every person who wishes to convey a thought, an idea, an opinion a competitor in the marketplace of ideas. Each speaker – whether it is vocal, visual, on paper, or on the internet, bids for the minds of men in the market place of ideas.  The true test of the thought or idea or opinion is how strongly it is accepted in that marketplace.

Because the contribution to the marketplace of ideas is considered so important, we don’t want to inhibit peoples’ right to do so. How else are we able to discuss what our government is doing and determine if it is bad or good… Right or wrong?  How else are we able to determine which candidates are best able to serve us in government?  And that’s why we have the First Amendment’s Guarantee of Free Speech and a Free Press.

Not all speech, however, is protected. There are basically 9 categories of speech NOT protected by the First Amendment:

• Obscenity
• Fighting words
• Defamation (including libel and slander) ***
• Child pornography
• Perjury ***
• Blackmail
• Incitement to imminent lawless action
• True threats
• Solicitations to commit crimes
• Some experts add treason

***  You’ll notice that speech that is not truthful is not protected by the First Amendment. Untruths add nothing to the “marketplace of ideas” that the First Amendment was established to create.  (See Defamation and Perjury)

You may have heard folks on the left claim that “Hate Speech” isn’t protected.  Most notably, you may have heard this in the last month or so by one-time presidential candidate Howard Dean. But this is false. “Hate Speech” may sound like something that isn’t protected by the Constitution but the category doesn’t actually exist – at least in first amendment jurisprudence. It is an amorphous term that means one thing to one person and something else to another person. It is a term that is capable of constantly being enlarged, and in fact, if you look at the growth of the snowflake movement, you can see how easily it is to offend a liberal. How quickly do you think it will take this current group of thin-skinned emotional basket-cases to label speech that insults them as “hate speech”?

To be clear….  You have every right to say mean and hurtful things.

It is no coincidence that Speech is addressed in the first of the amendments to the Constitution. It was deemed to be critical in a free society. Speech is important because with speech and press, we are able to alert our fellow citizens when our rights and civil liberties are under attack. It is our first line of defense when government becomes corrupt and tyrannical.  We exercise the first amendment to criticize and protest government so that we don’t have to exercise the second against it!!

College Campuses and Snowflakes –

Years ago, college campuses were popular havens for free speech. Students and speakers could freely express and exchange ideas, even ones that were unpopular. Berkeley was once seen as the home of the Free Speech movement, if you can believe it.

So, what happened?  What happened to Free Speech?

Back in February, Berkeley students covering themselves in black face masks went berserk when conservative commentator Milo Yiannopoulos was set to speak. They caused over $100,000 in damage to the campus and promoted the university to cancel the event.

Last month, Ann Coulter was set to speak there. First she was invited, then uninvited, and then invited again – as long as she could be scheduled on a day when students didn’t have any actual classes on campus. When the school told her they could not assure her safety, even though her safety was at risk, she was forced to cancel her visit.

Berkeley students successfully shut down conservative speech. By violence. By intimidating. By threats.

Nowadays, it is fairly common for college students to shout over and shout down even moderate-leaning speakers. If they don’t like the message or the speaker, they aren’t going to let them speak. This is happening all over the country.  You have to ask yourself why we call these students Progressives, even thought that is the movement to which they belong. They certainly aren’t for the progression of civilized thought and conduct. They are not for the progression of freedom and liberty. Rather, they are for its regression.

Today’s liberal college students require safe spaces, trigger warnings, and days off from class in order to deal with their feelings. Our universities, bastions of liberal thought, have developed these concepts to help students deal with feelings rather than prepare them to deal with facts and articulation. Couple this with the constant smearing of any intellectual or political opponent as “racist” or “bigoted” or “homophobic,” etc, and they are succeeding in producing a generation of closed-minded individuals who are increasingly intolerant.  They are increasingly hostile to the notion of tolerance when it comes to views that are different from theirs. It is if they cannot intellectually or emotionally deal with opposite views. I guess you can say that today’s students are becoming increasingly intolerant of tolerance.

And we all know that the intolerance essentially comes from one side. Imagine if Tucker Carlson shouted down a guest on his show simply because he didn’t agree with the opposing viewpoint or imagine if Dinesh D’Souza refused to answer a question from someone in his audience who disagreed with him. They’d be labeled “hypocrites” and “intolerant.”

Today’s generation – and mainly those on college campuses – are treated like babies…  and that’s because that’s how they act.

We call the young liberal generation a bunch of snowflakes and there is a reason we call them this. “Snowflake” is a term that refers to fragility. These young people have an inflated sense of their self-worth and are therefore offended easily. They are so fragile that when they hear the slightest thing that causes them discomfort or uneasiness or that insults them, they melt. They have a melt-down. They are too easily offended and hence need “safe spaces” to retreat to. In these safe spaces, they are surrounded by those who think exactly like they do. [In the real world, we are told by the government that we have no right to be surrounded by only those who think like ourselves; we must be diversified!]  These young liberals have been coddled probably most of their lives, or at least indoctrinated by their parents or pandered to by society. And now they are ill-equipped intellectually and emotionally to face the real world. They are certainly unable to face life’s challenges (such as the 2016 election) and unable to confront opposing opinions with any amount of dignity.

To see how bad this situation has become, look at how this term “snowflake” has morphed in its definition. Back in May 2016, when Donald Trump was campaigning and all of a sudden it appeared that people all over the country were able to connect with him and were articulating very convincingly why he should be president, the term “snowflake” was defined as “an overly-sensitive person who is incapable of dealing with any opinions that differ from their own.”  It was used mainly in describing a liberal.. a Democrat. It was used to describe those who would show up and protest Trump rallies and do nothing but shout insults. After Trump was elected and the progressive protest-fest ensued, the definition was modified. Now it means “Any entitled millennial progressive tard who runs to her ‘safe space’ to play with stress toys and coloring books’ when triggered by various innocuous microaggressions.”  In other words, it describes a person incapable of dealing with persons who don’t think exactly like they do.

Universities becoming safe havens for snowflakes serves no good purpose, except I suppose for keeping young people blindly indoctrinated. What is being stolen from today’s college students is the ability to learn how to think about complex issues while in an educational setting (a relatively safe, coddling environment) so that they can be equipped to engage with the diverse array of ideas in the real world. And that type of diversity (the diversity of ideas and the diversity of thought) is far more important practically than the type of diversity that colleges love to brag about – the diversity of their student body based on race, ethnicity, religion, sexuality, etc.

An open and robust discussion with a wide array of ideas and opinions is how we expand our knowledge and deepen our understanding. This is how we figure out what we believe in and how strongly we believe it. We don’t strengthen what we believe in by silencing or shaming or defaming those we don’t agree with.

The Right of Free Speech is Almost Absolute –

The right of Speech and Expression is almost absolute. We absolutely have the right to protest…   It’s one of the very reasons for the First Amendment in the first place.  In fact, the standard by which we gauge how strongly we embrace our right of free speech is how well we safeguard and respect people’s right to engage in unpopular speech.  We have the right to use our speech to counter someone else’s speech. What we DON’T have is a right to SILENCE someone else by using violence or intimidation.  We have the right to use Hate Speech, it’s true, but we shouldn’t.  And let me explain why.

When you use violence and intimidation – and even hate speech, it has a “chilling effect” on free speech. It results in self-censorship. People – candidates, politicians, writers, speakers, bloggers, radio and TV personalities – begin to watch what they say and keep their commentary “safe.”  This doesn’t serve the “marketplace of ideas” at all.  We in the conservative community and the Tea Party movement know all too well about self-censorship. We lived in fear for years under President Obama when he was using the IRS to target our “viewpoint” for audits and harassment.

Violence and intimidation quiets a speaker who simply would rather not deal with the threats and the smears and the protests. Where would our country be now if great men and women felt it was best to self-censure?

I think we all need a refresher course on what the First Amendment means and what its purpose is in our Constitution.  The First Amendment is about prohibiting the federal government – the government capable of consolidating and consuming the individual States – from passing any laws that affect free speech. It has absolutely nothing to do with the speech or expression of a private person and whether that speech or expression offends the sensibility of another person or group of people.

If you are offended by someone’s speech – by his or her ideas or opinions, then you have the right to counter with more compelling speech, with better ideas, better opinions, better arguments. That’s what you SHOULD do.  This is what universities should be teaching our students. This is what they should be preparing them for. They shouldn’t be teaching them to be emotional snowflakes and intellectual cowards.

As mentioned earlier, the standard by which we gauge how strongly we embrace our right of free speech is how well we safeguard and respect people’s right to engage in unpopular speech.  Judging according to this standard, today’s college students have no respect for the First Amendment and would just as soon allow the right of free speech to be doomed…..  except as it applies to themselves, of course.

I think we all need a refresher course on what Free Speech is and what the First Amendment’s guarantee of freedom of speech means. It secures a place not only in the Bill of Rights, but it is the subject of the very first of those essential amendments. The First Amendment’s guarantee of free speech is about prohibiting the federal government – the government capable of consolidating and consuming the individual States – from passing any laws that affects or burdens an individual’s freedom of speech and expression. Together with the guarantee of religious liberty, the First Amendment was added to the Constitution to prevent the government from establishing an absolute tyranny over the conscience and the thoughts and expression of We the People and our ability to comment critically on our government.  Thought control and the control of information is the tool of a tyrannical government.  Maximilien Robespierre, who manned the guillotine during the French Revolution, said: “The secret of freedom lies in educating people, whereas the secret of tyranny is in keeping them ignorant.”

President Harry Truman spoke similar words in an address to Congress in 1950: ““Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”

Tens of thousands of brave Americans, motivated by the words and sentiments expressed in the Declaration of Independence, fought and died to break the chains of British tyranny so that those sentiments could flourish here. These freedoms and these foundations are endangered when Americans are ignorant as to our founding and are otherwise unwilling to engage in the discussion necessary to keep our First Amendment vibrant and intact.

References:

Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947).  Referenced at:  https://www.law.cornell.edu/supremecourt/text/330/1

Professor Daniel Dreiisbach, “Origins and Dangers of the Wall of Separation Between Church and State,” Imprimis (Hillsdale College), Volume 35, Number 10 (Oct. 2006).  Referenced at:  https://imprimis.hillsdale.edu/origins-and-dangers-of-the-wall-of-separation-between-church-and-state/

Bill Fortenberry, “What Did Jefferson Mean By the Phrase ‘Wall of Separation’?“ The Federalist Papers (blog), November 1, 2013.  Referenced at:  http://thefederalistpapers.org/current-events/what-did-jefferson-mean-by-the-phrase-wall-of-separation

Charles C. Cooke, “Howard Dean is Peddling Hate Speech Hogwash,” The National Review, April 21, 2017.  Referenced at:  http://www.nationalreview.com/corner/446941/howard-dean-hate-speech-not-protected-first-amendment

Dave Rubin, “Ann Coulter’s ‘Hate Speech’ is Protected by the First Amendment, The Rubin Report.  Referenced at:  https://www.youtube.com/watch?v=t2Fm9z4LGDs