L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 341, October 16, 2005
Tenth Anniversary Edition, Part 3
Speak Now, or Forever Hold Your Peace
Special to TLE
"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 to peaceably assemble, and to petition the Government for a redress of grievances." The First Amendment to the Constitution of the United States
The First Amendment is perhaps the most popular of the enumerated rights in the Bill of Rights. As such, it's often viewed as all but sacrosanct. But, like all of the rest of the Bill of Rights, it's being chipped away whether we take note of the fact or not. In fact, virtually every facet of the First has been weakened just within the past few weeks. Consider:
In the State of California, Governor Arnold Schwarzenegger recently vetoed legislation that would have legalized gay marriage in the state. His rationale for the veto included a vote by the people of the state five years ago that indicated the majority preferred the definition of marriage that stated the institution was between a man and a woman. Almost simultaneously, the state of Connecticut legalized civil unions, becoming just the second state in the country to do so (you'll doubtless recall that Vermont was the first).
The issue of gay marriage is contentious largely because some religious groups believe homosexuality to be sinful. As such, there have not only been state initiatives similar to the one in California in various places around the country, but even a proposal that the US Constitution itself be amended to define marriage as being between a man and a woman. There's just one real problem with that: marriage is a religious term. While it must be acknowledged that most religious institutions agree with the majority that marriage must be between partners of the opposite sex, not all of them do. If the government were to mandate that the latter couldn't follow its own dictates out of sensitivity for the former, that would clearly be a prohibition of their free exercise of religion.
Not long ago, a certain conservative talk show host made a certain comment that caused virtually every political contingent to suggest that the public airwaves are not the place for such speech. William J. Bennett is a former presidential advisor, Secretary of Education, and "drug czar" in the Reagan and first Bush administrations. He may also soon be a former talk show host if some get their way. That's because Bennett suggested, in a discussion with a caller, that crime would go down if all black babies were aborted.
Now that comment isn't really as reprehensible as it sounds. It's important to take it in complete context which involves the caller's original suggestion that if abortion were stopped, Social Security would become solvent. It seems that in his response that such arguments "cut both ways," Bennett was using an extreme example to make his point (a more complete explanation is available on Bennett's web site). He even made clear his own position that actually doing something like that would be "impossible, ridiculous, and morally reprehensible."
Of course, the selected portion of the comment has grown a life of its own and has been broadly discussed and roundly criticized. The demand for apology was such that even the White House issued a statement in which it called Bennett's comments "not appropriate." One Congressman suggested Bennett be suspended and said his remarks had "no place on the nation's public airwaves." Another demanded that the FCC take action against him.
The bottom line has nothing to do with whether or not Bennett was right or wrong. It doesn't matter that what he said did or didn't offend people. It doesn't even matter if he was taken in context or not. The salient point is whether or not he had the right to say whatever it was he said regardless of whatever it was he meant. And the short answer to the question is that yes, he did. Nowhere in the Constitution does it say that the only free speech that's protected is that which is non-controversial or which isn't offensive to anyone!
Freedom of the Press
As far back as the days of the Founding Fathers, the press was viewed as an essential check on government wrong-doing. The idea, of course, is that an unfettered press can investigate, shed light on, and report governmental workings. It's supposed to keep officials honest, or at least let us know when they're being dishonest. Crucial to that kind of investigative reporting is the "unnamed source." Without Deep Throat, would we ever have known about the misdeeds of a sitting president and certain members of his staff? Now, however, the government is demanding reporters rescind anonymity under threat of jail.
A New York Times reporter was jailed for almost three months for refusing to name a source she'd promised confidentiality. She was finally released on September 29 after her source released her from her promise both verbally and in writing (the source has said the release was not coerced). Two other reporters were also threatened though neither served time behind bars after they got permission from sources to speak to a grand jury.
There's no question whatsoever that criminal investigations are important. At the same time, without a truly free presswhich means the ability to assure sources who take great risks anonymityinvestigations that are just as important will be crippled leaving the Fourth Estate severely weakened at best.
Freedom of Assembly
We take it for granted in this country that we can associate with whom we please unless, of course, we're engaged in some illegal activities. That's why news from Utah about a rave that was broken up by the authorities didn't initially generate too much sympathy on my part. There was evidence of drug sales and use among other things, and though some accused the police of improper searches, it never occurred to me to wonder why the party was busted in the first place. But now news has come out that the raid on the party was planned in advance and apparently without knowledge of any pending crimes.
Right to Petition the Government
I don't like Cindy Sheehan. Oh, it's not that she's against the war in Iraq. Lots of people happen to agree with her. What I find disgusting is the appalling way that she uses her son and his death to promote her cause (family accounts suggest that her son, Casey, was a proud volunteer; other information includes the tidbit that Cindy is utterly unsupported in her efforts by the rest of her family). But that doesn't mean Mrs. Sheehan can't speak out as she sees fit, including in public places with groups of like-minded people.
Sheehan, however, found herself under arrest in Washington DC when authorities asked her and her group to move on. A number of the protesters were arrested, including Sheehan herself, apparently for the lack of a $75 permit. Now, if there are thousands of protesters expected at an organized event, I can see that certain infrastructure (okay, Port-a-Johns) might need to be arranged in advance. But a few hundred people in front of the White House should be able to peacefully speak their piece without red tape. There was a time when they could. That time is not only gone, but few even have the sense to lament the changes. Apparently, such permitting systems are "for our own good" and to "make us all safer."
So why is the First now being treated like the Second, Fourth, Fifth, and Sixth? Is it the War on Terror? Is it government hubris? Or is it us? Whatever the reasonor combination of themthe First Amendment is under attack. Maybe the past popularity of the First Amendment gives us the mistaken idea that nobody would dare to touch the protections of the First Amendment and which has made so many so complacent. But in point of fact, much of the previously done damage has been done with the complicityor at least without any real oppositionof the majority of Americans.
As long as there are no overt objections, there will be continued inroads into our liberties. At the rate they're going, they'll be gone all together, and in the foreseeable future. And still we make excuses or try to explain away the latest infringements. Perhaps it's us after all.