Liberty & Law Trumps Emotion: Understanding Freedom of Speech
The mayor of Portland, Oregon called for the revocation of permits for a “March Against Shariah” because the content of the presentation is “untimely.”
Here are the Facts:
- The rally was to be on federal property within the city of Portland, so the federal government must issue the permits.
- The rally was to be a “march” against Shariah law in America.
- The mayor classified the organizers of the march as “alt-right” and claimed the topic of the rally would be too disturbing to the public.
Kathy Griffin published a picture where she is holding a replica of a bloody head of Donald Trump.
Here are the Facts:
- The purpose of this still photo was to make a political statement.
- There was no actual call for the beheading of Trump or any plans concerted to organize and carry out the beheading of Trump.
- Many people are calling for criminal legal action to be taken against Griffin because the photograph is so disturbing in its depiction of the President of the United States.
These two stories are so similar it seems almost providential that they happened almost simultaneously. These two events address two sides of freedom of speech and give a great opportunity for real liberty education. Yes, in both circumstances, the speech must be protected and not prohibited or criminalized. But the circumstances illustrate how people can allow emotion to drive their demands rather than the Constitution or Liberty.
Benjamin Franklin, writing as Silence Dogood, explained why freedom of speech is so important and what limits must be placed upon that freedom:
“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or controul the Right of another: And this is the only Check it ought to suffer, and the only Bounds it ought to know.”
Being offended is not the definition of hurt, nor is offense the control of the Right of another. The emotional and political limiting of freedom of speech, as history proves, always has dire consequences.
“This sacred Privilege is so essential to free Governments, that the Security of Property, and the Freedom of Speech always go together; and in those wretched Countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own. Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech; a Thing terrible to Publick Traytors.” -Silence Dogood #8
Freedom of speech should be such a dear right to all Americans that we would rejoice over the fact that something offensive can be spoken publicly. When government or the mob can determine what is offensive or acceptable, then there can be no other freedom remaining. The purpose of freedom of speech is not so you can call your neighbor bad names, but so that you can be free to call those in government bad names and not be persecuted or prosecuted.
This principle is so well established in fact and history, that the Supreme Court has expressed their opinions on these matters quite definitively. “A bedrock principle underlying the First Amendment is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” -Texas v. Johnson 491 US 397 (1989).
In RAV v. St. Paul 505 US 377 (1992), the court opined that even “hate speech” is to be protected, to include the burning of crosses.
Similarly, the Supreme Court has made their opinion of protest and assembly just as clear. In Carroll v. Princess Anne, 393 U.S. 175, 181 (1968) the supreme Court declared “Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.” Prior restraint is EXACTLY what the mayor of Portland was attempting to achieve. According to the courts, the mayor shouldn’t be asking for permits to be revoked or denied, he should be escorting the protestors and providing sufficient security for the march to the ensure the safety of the demonstrators.
Local government must “provide police in such numbers as in their professional judgment are required to afford adequate protection to [protesters].” -Dunlap v City of Chicago 435 F. Supp. 1295 (1977)
“A police officer has the duty not to ratify and effectuate a heckler’s veto nor may he join a moiling [violent]mob intent on suppressing ideas. Instead, he must take reasonable action to protect from violence persons exercising their constitutional rights.” –Glasson v City of Louisville 518 F.2d. 899 (1975)
“Officers must take all reasonable efforts to protect the demonstrators.” -Gregory v Chicago 394 US 111 (1969)
What the courts are recognizing is exactly what our 1st Amendment was created to ensure: an equal, peaceful voice for all opinions absent of government control or definition. If one looks at the protests held by our Sons of Liberty, the antics of Kathy Griffin may not seem so extreme. It was not uncommon for the Sons of Liberty to hold mock hangings of government agents with whom they had become dissatisfied. Our founders even held mock funeral marches and full funeral services involving effigies of the disliked politicians. So although Kathy Griffin’s photo may seem shocking to the senses, the foundation of American Liberty must declare that it should never be illegal.
Thomas Jefferson, our third President, reminds us “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”
Freedom of speech is the bedrock principle of all wisdom in society. When the government can make speech of any sort illegal, we will suffer the most arbitrary and oppressive governments known to history.
James Madison, also known as the Father of the Constitution, described freedom of speech as “property”. In 1792, he wrote: “…a man has a property in his opinions and the free communication of them… Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”
These are the principles that actually make America great. In a Liberty-minded society, the mayor of Portland would be rejoicing that his community is the market place of ideas. He would be doing everything that he could possibly do to make sure that this political march happens safely and peacefully. In a Liberty-minded society, the people, although offended, would rejoice that someone like Kathy Griffin could be free to make such a bold and expressive caricature of the president of the United States. In a Liberty-minded society, the people would know that government control of either of these situations would most literally be the death of American Liberty.
The Liberty solution to those upset by the march in Portland is to peacefully assemble and voice their own opinion. The Liberty solution to those offended by Kathy Griffin’s photograph is to voice their disgust and stop listening to her or anyone who promotes her. The only legal action available, if any, would be for Donald Trump to personally sue her for defamation. Her actions may warrant civil remedy, but not criminal.
If we wish to be the America worthy of our Liberty foundation, we must hold fast to these rights, even if they make us feel uncomfortable. All the people, all of government, even the mayor of Portland, should be dedicated to the unfeigned protection of all speech and assembly, regardless of how we feel about the message. That is the definition of “freedom of speech.”
KrisAnne Hall is an attorney and former prosecutor. Hall hosts weekly radio and TV programs and teaches an average of 265 classes in over 22 States each year on the Constitution and the Bill of Rights. KrisAnne is a disabled Army veteran, a Russian linguist, a mother, a pastor’s wife and a patriot. Learn more at krisannehall.com.