Friday, May 1, 1998
First Amendment rights inalienable, not expendable
SPEECH: Freedom to voice your protest shouldn’t be a bargaining
chip for economic advancement
America is walking a fine line when it comes to the issue of
freedom of speech. Over the last few years, our legal system has
succumbed to pressure from various special interest groups
delimiting the scope of protected speech.
While ostensibly attempting to preserve "the good of the
community," actions of groups that advocate in favor of everything
from campaign finance reform to the elimination of teen smoking
have diminished the value of the First Amendment. Amazingly, it is
not unheard of now for individuals and corporations to exchange
their First Amendment rights for other legal privileges.
Our constitution used to guaranteed the protection of any speech
that did not create a "clear and present danger" to society. For
speech to be illegal, it had to pose an obvious and immediate
threat to others, such as the danger that would result from yelling
"fire" in a crowded theater.
Recently, however, the exceptions to freedom of speech have been
slowly expanding. Ideas or modes of expression that were once
protected by the First Amendment can be silenced through legal
manipulations if they offend a significant segment of society. Last
week, for example, a Chicago jury found that RICO, the Racketeer
Influenced and Corrupt Organizations Act created to prevent mob
activity, was applicable to a group of abortion protectors. While
the presence of the protectors may have been offensive to some,
their actions should not have been deemed illegal on this basis. It
appears that because the requisite "clear and present danger" was
not present, those who opposed the protest resorted to bending the
law.
Nadine Strossen, president of the American Civil Liberties
Union, was understandably concerned about this verdict. The court’s
ruling demonstrated that RICO "now could theoretically be used
against any kind of protest movement."
America was founded upon protest movements, and it is important
to recognize that these movements continue to shape our nation. Our
country’s willingness to tolerate offensive speech is what
differentiates our government from those of communist regimes.
In 1989, this is what the Supreme Court ruled in the landmark
case of Texas vs. Johnson. Johnson’s conviction for burning an
American flag as a symbol of protest was overturned in this
decision because the court correctly maintained that offensive
speech is not illegal. In fact, it is this type of speech that our
First Amendment was originally designed to protect.
Unfortunately, the trend of limiting First Amendment rights does
not end with offensive speech. Challenges are being posed to any
speech that does not coincide with the political agenda of the
majority. For example, on the ballot this November is an initiative
that would mandate that members of the California State Legislature
openly declare their support of congressional term limits at the
federal level. The developers of this initiative obviously believe
that the need to restrict the amount of time that elected officials
can stay in office is so compelling it outweighs the free speech
rights of these politicians. Restricting the thoughts and actions
of officials elected on the basis of their advocacy skills is the
first step toward a slide down a slippery slope. At the bottom of
this slope lies a badly bruised First Amendment.
Another example of First Amendment restrictions being instituted
to advance a political agenda "beneficial" to the community is that
of campaign finance reform. Weary of seeing politicians buckle
under the pressure of heavily-contributing special interest groups,
many have advocated limitations on campaign spending. However, such
limitations would decrease the amount of information politicians
can disseminate about their campaigns, as well as the mediums
through which they promote themselves.
It is doubtful that campaign spending limitations would
positively impact elections. More likely, such regulations would
not only restrict the candidate’s freedom of speech, but also that
of his or her constituency. There would be a race between special
interest groups to fill the candidate’s election coffers before the
spending limit was reached. Only the groups able to donate the most
money, the most quickly, would be able to exert influence if the
candidate was elected to office. However, even if the election
impact were positive, the accompanying sacrifice of constitutional
rights would be too great.
The most shocking example of the disrespect being shown to the
First Amendment lies in the debate over the tobacco settlement. The
fact that tobacco companies have demonstrated willingness to
sacrifice their right to advertise, in exchange for immunity from
future lawsuits from smokers, is outrageous. This sends the message
that free speech privileges, if not economically rational, are
expendable.
Freedom of speech is a precious liberty, not a playing card. The
"good of the community" was considered when the First Amendment was
conceived. Back then, it was determined that a nation condoning the
free expression of its citizens is preferable to one in which
thought and speech are stifled. It is disheartening to see so many
dismiss this notion in the pursuit of lesser objectives.