It Is Dangerous to Be Right When the Government Is Wrong (10 page)

Conclusion

The Interstate Commerce Clause has become an extremely formidable weapon, one which Congress uses to assault our individual commercial liberties and steal our property every day. If Congress is allowed to use this power to regulate food that we grow in our own backyards and consume in our kitchens, there is no limit to its power. Every behavior can now be taxed and regulated by the federal government, and this is something that must be stopped. We have seen examples of how government restrictions and takings have destroyed houses, apartment complexes, businesses, as well as the entire American economy. We have seen how these same restrictions on private property made housing unaffordable for the poor and the middle class; we have seen restrictions cause extreme poverty amongst the most marginalized members of society. When will this end?

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It is no wonder the American economy is no longer the strongest economy, with the most productive and innovative people in the world. America, just like Europe at the end of the two great world wars, has been left with limited factors of production and a ravaged economy. But, unlike Europe, America was not a casualty of war, and our factories were not bombed by enemy tanks and aircraft; Americans have had their productive capital taxed away, their costs of living increased, their education diminished, and their factories have been allowed to rust, become outdated, and waste away, all thanks to onerous government taxes and regulation; all thanks to government's lack of respect for the inalienable right to own private property.

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Chapter 3
Names Will Never Hurt Me:
The Freedom of Speech

Approximately 1,160 miles separate Topeka, Kansas, from Westminster, Maryland. Fred Phelps, pastor of the Westboro Baptist Church in Topeka, Kansas, feels it is his duty to travel great distances to spread his congregation's religious message: “That God's promise of love and heaven for those who obey him in this life is counterbalanced by God's wrath and hell for those who do not obey him.” In 2006, this duty brought him to Westminster, Maryland, to attend a funeral service at St. John's Roman Catholic Church.

The funeral was in honor of Lance Corporal Matthew Snyder, a U.S. Marine who died while stationed in Iraq. Funerals such as Corporal Snyder's are prime opportunities for Phelps to spread his religious message, because he believes God is punishing the United States for “the sin of homosexuality” through a multitude of events, including soldiers' deaths likes Snyder's. However, Phelps's protests do not end with him or his followers attending funeral services. They attend the funeral services while shouting at grieving family members and carrying signs with slogans such as, “Thank God for Dead Soldiers,” “Priests Rape Boys,” and “God Blew Up the Troops.”

Is this form of speech the exercise of a natural right granted to us by virtue of being human? Is there a fundamental yearning to communicate ideas to others, even if those ideas are patently offensive and outrageous? More importantly,
should
it be? After all, legal Positivists might criticize any scheme of rights, such as the Natural Law, which protects the protesting activities of Fred Phelps. As we shall see, however, freedom of speech is a nearly absolute right which can only be curtailed in the direst of situations, namely, where speech will somehow infringe upon other natural rights, as might be the case with a criminal mastermind instructing his henchmen to kill others. As unpopular as Fred Phelps's ideas might be, we cannot, and must not, conflate questions of unpopularity and offensiveness with natural rights. If we do, then we set a legal precedent for the suppression of unpopular groups, and the death of free thinking. As Noam Chomsky stated, “If we don't believe in freedom of expression for people we despise, we don't believe in it at all.”

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“They Chose Liberty”

The egregious and loathsome speech of Fred Phelps is a prime example of the speech the First Amendment protects. In drafting the First Amendment, the Founding Fathers intended to protect not only agreeable or non-provocative speech, but also speech against the status quo. Indeed, the American Revolutionary movement was itself an uprising against then existing power structures, making its literature the object of government contempt. Justice William O. Douglas wrote, “The framers of the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for restrained speech and thought against the abuses of liberty. They chose liberty.”
¹

By choosing liberty, the Founders sought to protect our most basic yearnings: Here, the yearning to think as we wish, and to communicate thoughts to others without the “chilling” effects of government regulation. To avoid repeating history and suffering the later abuses of a tyrannical government, the Founders, in enacting the First Amendment, secured our right to dissent, to speak out against those in power, and to participate in a public discourse. Thus, the right protects not only the speech itself, but every person's ability to express ideas. If others do not agree with those ideas, then they are free to disregard them wholly. They may only seek government infringement of speech if it is somehow violating their own natural rights. No society could exist if there was a natural right not to be offended.

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The First Amendment states in part, “Congress shall make no law . . . abridging the freedom of speech.” Singularly, this line recognizes the natural right to free expression and restrains the Congress from interfering with that right. It also acknowledges the fact that the right to free speech is a natural or fundamental right. That the Founders wrote “
the
freedom of speech” makes it clear that they viewed the right as pre-existing the government's formation. Thus, the government can only curtail your right to free speech when you violate the Natural Law; otherwise, it has no authority to do so, and any regulation of the right is an illegitimate exercise of power. It should also be clear that the freedom to speak, unlike the freedom to swing one's arms or shoot a gun, will be by its very nature almost never able to harm another. The possible window where speech can violate another's natural rights, and thus be eligible for government regulation, is extraordinarily narrow.

Interestingly, because the Founders believed free speech to be a natural right, they were not always in agreement as to whether it should be inserted into the Constitution. Some argued the Constitution was only a granting of limited power to the federal government by the states, so there was no need to proclaim what rights the states and people retained. After all, where in Article I is Congress authorized to regulate speech? If there was no
explicit
grant of a power to curtail a right, then there would be no need to recognize that right in the document. Madison initially shared this view. He believed the Bill of Rights was not necessary because the rights in question “were reserved by the manner in which the federal powers are granted.” Moreover, he had previously experienced the inefficiency of a bill of rights on multiple occasions within state governments;
²
an enumeration of rights could prove extraordinarily dangerous, since the inclusion of only some rights could lead some to believe that other rights do not exist.

Moreover, freedom of speech is in accord not only with original understanding, but the political theory of good governance. The theoretical justifications for freedom of speech can be divided into three categories. First, freedom of speech is necessary to foster a marketplace of ideas. For every thousand brilliant ideas, there are a million exchanges of nonsense. How is truth weeded out? It is not by the government, or even a democratic majority for that matter, arbitrarily determining the truth for itself. No, it is by allowing those ideas to be exchanged, debated, and nurtured. Only this process, and time, will reveal truth.

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Second, and related to the marketplace of ideas, freedom of speech is necessary to have an effective government because voters must have access to information in order to make well-informed decisions. If the government could restrict certain individuals' freedom of speech, namely, political opposition, then voters would be unlikely to recognize the flaws in the status quo or discuss better alternatives. Indeed, such is the very purpose of this book. And after all, if there is such a thing as popular sovereignty, how could the employers (voters) properly “instruct” their employees (government workers) if they did not have the ability to speak?

Finally, and as mentioned earlier, freedom of speech is at the core of our individuality. Although the above justifications might shield political speech, artistic and musical expressions are clearly just as deserving of protection. Does one need a message to convey in order to enjoy singing in the shower and writing poetry in the comfort of one's own home? Clearly not. As Justice Thurgood Marshall once said, “The First Amendment serves not only the needs of the polity but also those of the human spirit—a spirit that demands self-expression.”

As stated previously, the primary intent of the First Amendment was to secure the Founders' and their peers' right to dissenting opinions, particularly opinions in the realm of politics. Without free speech, there would be no free market for ideas and the exchange of political ideals. Where would our nation be if those who objected to proposals at the Constitutional Convention or the state ratification conventions were carted off to jail? Our country would not be the great nation it is today without the ability to speak freely about our representatives and those in power. A society where speech is restrained is not a free society at all; it is a dictatorship.

Attempts to limit the freedom to dissent are sadly as recurrent as they are damaging to liberty, and America is no exception. History reveals that our right to free speech often ebbs and flows with the temperature of the nation. Too often in times of war Americans are willing to sacrifice their natural rights and allow their passion and fears to override their sensibilities. A wave of fear often envelops the nation, and Americans begin to equate dissent with disloyalty to our country. When these “opportunities” present themselves, the government will often attempt to restrict our natural right to free speech through prohibitions against so-called incendiary or dangerous speech. Unfortunately, the government's primary objective in enacting these restrictions is so often to quell political dissent and unrest.

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One need look no further than at the same individuals who drafted the First Amendment to find the first curtailment of our natural right to free speech. Following the French Revolution, President John Adams signed the Alien and Sedition Acts of 1798, with the stated purpose of protecting America from enemy powers (at the time, the government of France) and stopping seditious persons from weakening the new government. The most contentious Act was the Sedition Act, signed into law on July 14th 1798, which made it a crime to publish “false, scandalous, and malicious writing” against the government or most of its officials. As the Alien and Sedition Acts show, no government, not even one comprised of the Founders who sought to safeguard our natural rights, can be trusted to permit robust freedom of speech. How could members of the same generation, indeed in some instances the same persons, who wrote, “Congress shall make no law . . . abridging the freedom of speech,” enact a law that abridged it?

More than a hundred years later, Americans experienced another setback to their First Amendment rights. By June 15th 1917, the United States entered World War I. President Wilson, labeling it the “war to end all wars,” proposed, and Congress enacted, the Espionage Act of 1917. Title I, Section 3, of the Act made it a crime for any person, during wartime, (1) willfully “to make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies”; (2) willfully to “cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty in the military or naval forces of the United States”; or (3) willfully to “obstruct the recruiting or enlistment service of the United States.” Violators of the Act faced fines up to ten thousand dollars, imprisonment of up to twenty years, or both.

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Under the Espionage Act, roughly two thousand Americans were prosecuted for opposing America's involvement in World War I.
³
Among these prosecutions was the case of Charles T. Schenck, who at the time was an official in the U.S. Socialist Party. Schenck was prosecuted and convicted for conspiring to violate Section 3 of the Act when he supervised the distribution of leaflets likening the draft to slavery and calling involuntary conscription a crime against humanity. Moreover, he urged those subject to the draft not to “submit to intimidation,” and to exercise their right to oppose it. In other words, Schenck was merely exercising his personal sovereignty over the government: It is the government which is the servant of the people, and the people should be free to instruct others on what actions the servant should take. What right does the servant have to punish his master for giving him certain orders?

The Supreme Court unanimously upheld his conviction.
⁴
Justice Oliver Wendell Holmes, Jr., declared that the relevant inquiry for incendiary speech should be whether the speech creates a “clear and present danger that . . . will bring about the substantive evils that Congress has a right to prevent.” Under this reasoning, Holmes believed speech or written materials, which may be appropriate during peacetime, may pose a clear and present danger to military goals during wartime. Moreover, under this test, an individual's conviction may be based on the potential to cause a clear and present danger, regardless of whether this was the individual's intent. How can one be thrown in jail because he said something that had an impact on others which he did not even intend? Justice Holmes was correct; there was very much a clear and present danger: It was the opinion of the Supreme Court.