Editorial: What Is Free Speech?
More and more voices around the world are calling for dialogue as a means of settling differences peacefully. Perhaps our nation will at last come to the realization that dialogue is precisely what constitutional free speech is all about.
The word speech in the First Amendment does not mean one-way utterance as it perhaps does today. Rather, it means dialogue, willing and cooperative discourse about governmental issues. The word speech cries out for interpretation in the context of the times when the First Amendment was written. In those days people were frequently heard to say, "I wish to have speech with you." Shakespeare wrote about people being "in speech" with each other, as did Sir Walter Scott in Ivanhoe. Helen Hunt Jackson in her 1880 best selling novel Ramona (later made into a movie) tells of individuals "seeking speech" with others.
The phrase "the freedom of speech" (note the definite article) seems first to have appeared in a British Bill of Right of 1689, following a bloody war where it referred to Parliamentary debating. It means speech-making before willing listeners, two-way discourse, communication and discussion.
Previously the king had sent his soldiers into Parliament arresting members for debating matters over which he, the king, claimed sole decision-making authority, like making war or whom his son should marry. Tyrants throughout the ages have sought to stamp out gatherings of people discussing and debating issues about their own welfare and about the common good.
But our Constitution does not uphold any right or freedom to speak or express oneself irrespective of the rights of others. It declares no right whatsoever to inflict views and opinions - and sales pitches - on unwilling ears. Or imbed"messages" (political, religious, or commercial) in another's brain cells. Nor to slander, or disturb a church service or shout fire falsley in a crowded theater, or to harangue an unwilling audience. There is no more a right to intrude on another's sensibilities than there is to blow smoke in someone's face.
The students who have brought suit against Stanford for attempting to moderate their conduct towards others should be advised that our Bill of Rights guarantees rights against government, not against citizen peers.
"The freedom of speech"-a process and not an idividual right at all - was a well-established concept in early America. Not only had this process been declared free in the British Parliament, but the same words appear in our own Articles of Confederation. Moreover, the same words in essence were written into the original U.S. Constitution to protect our lawmakers, at Article 1, Section 6, providing that "For any Speech or Debate in either House, they shall not be questioned in any other Place."
James Madison, who authored the First Amendment, merely extended the same freedom to the state legislatures, the existing town meetings, and to the citizenry at large.
Personal conduct, whether friendly, hostile, or unbecoming, is not dealt with in the First Amendment and no one can show original intent in this regard. The founding fathers were nevertheless concerned about manners in the forum; the first thing they did when convening in 1787 to write a constitution was to forbid "indecorous" speaking. Had they later proclaimed a freedom of speaking they would have been thought idiots.
There has never been a more ardent champion of free speech than U.S. Justice Hugo Black. In apparent reference to the Skokie incident he said no one has a right to tramp up and down the street threatening others. That's conduct, he said.
Alexander Meikeljohn, noted educator, political philosopher and ACLU pioneer, said repeatedly that speaking is subject to regulation " the same as shooting a gun". He pointed out that speaking is abridged the moment any deliberative session is gaveled to order.
Unfortunately, the First Amendment has been misinterpreted for 75 years. Virtually all speech decisions have dealt with conduct, often outrageous conduct. At this very moment the U.S. Supreme Court is pondering if the peace-threatening conduct of anti-abortion protesters at abortion clinics is 'protected' by the First Amendment.
Free speech, we are told contradictorily, is subject to all sorts of exceptions. Everyone knows that even the heroic soapbox orator cannot be allowed to function near a voting place. Court figures tell us almost daily that "Everyone knows that free speech has limits."
We do not really have freedom of speech because we have not yet discerned what it is. Meiklejohn said that while Congress may not abridge it, there is n othing whatsoever preventing Congress from enlarging it.
Copyright 1994-2006
Louis W. Jones 5/8/94
The word speech in the First Amendment does not mean one-way utterance as it perhaps does today. Rather, it means dialogue, willing and cooperative discourse about governmental issues. The word speech cries out for interpretation in the context of the times when the First Amendment was written. In those days people were frequently heard to say, "I wish to have speech with you." Shakespeare wrote about people being "in speech" with each other, as did Sir Walter Scott in Ivanhoe. Helen Hunt Jackson in her 1880 best selling novel Ramona (later made into a movie) tells of individuals "seeking speech" with others.
The phrase "the freedom of speech" (note the definite article) seems first to have appeared in a British Bill of Right of 1689, following a bloody war where it referred to Parliamentary debating. It means speech-making before willing listeners, two-way discourse, communication and discussion.
Previously the king had sent his soldiers into Parliament arresting members for debating matters over which he, the king, claimed sole decision-making authority, like making war or whom his son should marry. Tyrants throughout the ages have sought to stamp out gatherings of people discussing and debating issues about their own welfare and about the common good.
But our Constitution does not uphold any right or freedom to speak or express oneself irrespective of the rights of others. It declares no right whatsoever to inflict views and opinions - and sales pitches - on unwilling ears. Or imbed"messages" (political, religious, or commercial) in another's brain cells. Nor to slander, or disturb a church service or shout fire falsley in a crowded theater, or to harangue an unwilling audience. There is no more a right to intrude on another's sensibilities than there is to blow smoke in someone's face.
The students who have brought suit against Stanford for attempting to moderate their conduct towards others should be advised that our Bill of Rights guarantees rights against government, not against citizen peers.
"The freedom of speech"-a process and not an idividual right at all - was a well-established concept in early America. Not only had this process been declared free in the British Parliament, but the same words appear in our own Articles of Confederation. Moreover, the same words in essence were written into the original U.S. Constitution to protect our lawmakers, at Article 1, Section 6, providing that "For any Speech or Debate in either House, they shall not be questioned in any other Place."
James Madison, who authored the First Amendment, merely extended the same freedom to the state legislatures, the existing town meetings, and to the citizenry at large.
Personal conduct, whether friendly, hostile, or unbecoming, is not dealt with in the First Amendment and no one can show original intent in this regard. The founding fathers were nevertheless concerned about manners in the forum; the first thing they did when convening in 1787 to write a constitution was to forbid "indecorous" speaking. Had they later proclaimed a freedom of speaking they would have been thought idiots.
There has never been a more ardent champion of free speech than U.S. Justice Hugo Black. In apparent reference to the Skokie incident he said no one has a right to tramp up and down the street threatening others. That's conduct, he said.
Alexander Meikeljohn, noted educator, political philosopher and ACLU pioneer, said repeatedly that speaking is subject to regulation " the same as shooting a gun". He pointed out that speaking is abridged the moment any deliberative session is gaveled to order.
Unfortunately, the First Amendment has been misinterpreted for 75 years. Virtually all speech decisions have dealt with conduct, often outrageous conduct. At this very moment the U.S. Supreme Court is pondering if the peace-threatening conduct of anti-abortion protesters at abortion clinics is 'protected' by the First Amendment.
Free speech, we are told contradictorily, is subject to all sorts of exceptions. Everyone knows that even the heroic soapbox orator cannot be allowed to function near a voting place. Court figures tell us almost daily that "Everyone knows that free speech has limits."
We do not really have freedom of speech because we have not yet discerned what it is. Meiklejohn said that while Congress may not abridge it, there is n othing whatsoever preventing Congress from enlarging it.
Copyright 1994-2006
Louis W. Jones 5/8/94
posted by Louis | 11:28 PM
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