Friday, September 4, 2009

Freedom of Speech


Does the U.S. Constitution protect your right to say anything you want, whenever you want, anywhere you want? Some people think that it indeed does, or that if it doesn't allow that, it should. But most understand that while we are free to speak our minds most times, there are limits. You can't just yell "fire" in a crowded movie house, to use an old example.

There is actually no universally accepted definition of 'Freedom of Speech' that is applied within the United States of America. The idea is not clearly defined even within the Constitution itself. Issues relating to free speech have been debated and the courts have ruled on these issues almost since the Bill of Rights was added.

That 'Bill of Rights', for those who may require a brief civics lesson, are the first ten 'amendments' to the originally approved U.S. Constitution. The very first amendment reads: "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."

As explained in "The Heritage Guide to the Constitution": "The Founding generation undoubtedly believed deeply in the freedom of speech and of the press, but then, as now, these general terms were understood quite differently by different people. Many people did not think about their precise meanings until a concrete controversy arose, and when a controversy did arise, the analysis was often influenced by people's political interests as much as by their honest constitutional understanding."

Heritage also goes on to explain fully that there are certain established 'rules' and 'exceptions' where free speech is concerned which have developed largely over the past century.

Free speech guarantees restrict only government actions against such, not those of private employers, churches, universities, private home or property holders, and others. You can't put a sign up in your office cafeteria calling the boss an idiot, get fired over it, and claim some alleged free speech protection of your job.

In placing restrictions on government actions limiting free speech, that protection extends not only against federal government, but also to state and local governments, and all branches of the same. These protections are extended not only to traditional speakers and writers, to formal newspaper columnists for instance, but also to regular individuals as they communicate messages through such mediums as the Internet.

The issue has come to light recently with an incident generally involving members of my own Philadelphia Police Department. A police sergeant created a website on his own time, which he operated on his own time, popularly known as "Domelights" by it's users. The site was set up to provide vital information to officers as well as to allow communication and expression for those officers. To that expressive/communicative end, the site provided message boards covering a variety of topics.

One of the most popular of these message boards was named 'Philly Blue', intended to be populated by police officers commenting on issues involving law enforcement in general and the PPD in particular. I posted on Domelights as a regular for years, though ultimately much less frequently, using 'The Big Irish' as my screen name identity. Despite this anonymous name, everyone knew who I was. I never hid it, frequently advertised it, and made my identity available on the site's biographical information records for any member to view.

Problems always existed on Domelights due to the anonymous status of the vast majority of posters, many of whom took 'pot shots' at the department in general, it's policies and programs, and at times even at specific individual officers, supervisors, and managers.

The site has currently been shut down, temporarily restricted from accessibility due to a court proceeding. The site and it's owner found itself in court proceedings when a law suit was filed by the Guardian Civic League, an organization representing black police officers, alleging racism and other activities that it deemed libelous and possibly illegal coming from the message board posters.

I personally believe that this charge is frivolous. There were undoubtedly some posters at Domelights who were racists, just as they exist in society. And there was definitely a major flaw in the Domelights system with the anonymous status of the posters encouraging some folks to say anything inflammatory or irresponsible. But again, these are my personal opinions.

The problems at Domelights led to my own decreased visits and participation, but I would vehemently disagree that the site, it's owner, or it's board participants are institutionally racist or encourage illegal actions. It is what it is, a loosly monitored anonymous message board directed towards a specific target audience that make up the vast majority of its viewers and posters. Those suing Domelights simply don't like what is being said there at times. I believe they will ultimately lose the court fight, and we will see the return of the site in it's entirety, or with slight modifications.

Many have a hard time accepting that free speech guarantees extend to conduct that is "conventionally understood as expressive", according to Heritage. This includes things like wearing an armband, carrying a flag, and even burning of a flag extending into expressions of good and evil, with no exceptions even for things like radical Islam, Nazism, or so-called 'hate speech' expression. To quote the Heritage writers, "Under the First Amendment, there is no such thing as a false idea."

There are, however, universally accepted and court decision-backed exceptions to free speech. You may not speak to incitement, meaning your speech cannot be likely to cause people to engage in imminent unlawful conduct. You cannot give a street corner speech rabidly inciting folks to turn over cars, shoot police officers, and burn down buildings.

You cannot make false statements of fact that are 'knowing lies', though some such instances have been protected while some even 'innocent mistakes' have been punished by the courts. You cannot make statements that are reasonably perceived as threats of violence, and you cannot use 'fighting words' addressing individuals in face-to-face situations. "I'm gonna blow your head off" or "I'm gonna kick your ass" or "Your wife is a dirty ho" are examples that could be punishable by law.

You cannot participate in expression through obscenity or child pornography. The obscenity standard has been particularly strongly debated. Hard-core pornography is indeed punishable under certain guidelines, but those guidelines remain hotly debated and seem to constantly shift in practice. As for child pornography, courts only restrict the actual use of a child, not the presentation of a person as a child. So using a younger looking 18-year old girl in a movie that presents her as a 12-year old, one in which she has sexual relations, does not violate child pornography laws.

There are restrictions relating to the use of owned property, so-called 'intellectual property' laws for things like copyrighted information in music lyrics and formally published books and periodicals. However, these restrictions do not extend generally to things like facts and ideas. No one can legally monopolize an idea as their own.

There are restrictions on 'commercial advertising' which address things such as businesses having to make 'disclaimers' ("this pill may result in seizures and even death in some cases - check with your doctor before using"), but this does not extend to political advertising, meaning basically that politicians can exaggerate or mislead, but business cannot. It is directed towards speech that "proposes a commercial transaction", protecting the consumer. Shame that we don't rate voters as highly as product consumers where advertising protection is concerned.

We need to mind that all free speech protections extend to us as citizens from the government "acting as sovereign" but do not extend necessarily to that same government acting as an employer, educator, property owner, or regulator of the television and radio airwaves. The rules for these types of situations are so numerous that Heritage equates them to trying to understand the tax code.

The bottom line is that when speaking, be it in a public forum or in private conversation; whether on a street corner, a stage, or in an Internet chat room or message board; whether addressing a political or social or personal issue; in any event under any circumstances to any audience, it is always recommended to know your audience and know what you are talking about, and use a measure of common sense, respect, and even discretion in what you communicate.

Our Founding Fathers did indeed incorporate the idea of freedom of speech into the First Amendment of the Constitution, and not just they but all following generations of Americans have understood this idea as a basic right. What has been and likely always will be less 'basic' is the interpretation of restrictions and exceptions to speaking your mind freely.

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