It Is Dangerous to Be Right When the Government Is Wrong (11 page)

On the same day as the
Schenck
decision, the Supreme Court upheld two other convictions under the Espionage Act.
⁵
In the case of
Frohwerk v. United States
(1919), the Supreme Court unanimously held that a “conspiracy to obstruct recruiting would be criminal even if no means were agreed upon specifically by which to accomplish the intent. It is enough if the parties agreed to set to work for that common purpose.” Essentially, persuasive words alone could constitute a conspiracy in violation of the Espionage Act.
⁶
In other words, the object of government regulation crept from physical actions and into the direction of mere thought and speech.

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Frohwerk received ten years in jail for writing a series of editorials. In fact, Frohwerk wrote for a German-language newspaper in Missouri. How many Americans in 1917 were able to read and speak German? How many Americans were reading newspapers from Missouri? And while this newspaper did not have a wide audience, even if it had been
The Wall Street Journal
, the First Amendment protects speech questioning the government's decisions, for without this speech the government becomes a despot as to which no one can question any decision.

The common theme in these cases is that government, whether it be the legislative, executive, or judicial branch, has regularly suppressed the speech of political opposition, so long as it could produce an argument that the speech might cause harm.

Consider in this regard the following case. In 1917, Robert Goldstein produced a film entitled
The Spirit of '76
, which portrayed the Wyoming Valley Massacre. During the Massacre, British soldiers abused and killed women and children. While the events portrayed occurred almost 150 years before the production of the film, Goldstein received a sentence of ten years in prison because the government convinced a federal judge and jury that Goldstein's factual account of the Revolutionary War could promote mutiny in the military because it showed our once adversary and then ally, Great Britain, in a “negative” light.
⁷
The government saw fit to prosecute an individual for accurately portraying events occurring 150 years before the production of the portrayal. Put another way, the government punished an individual for accurately depicting history. Where does it end? If every textbook publisher maintained the risk of heading to jail for publishing darker periods in our nation's history, how would our textbooks read?

Justice Holmes, who wrote
Schenck
and
Frohwerk
, revealed himself to be the ultimate legal Positivist. He asserted that law is man-made, and thus, the government could restrict rights whenever it wished. The Founders anticipated these arguments, and drafted the First Amendment to prevent just such a result: They wrote “Congress
shall make no law
” abridging the freedom of speech, not “may at times abridge” the freedom of speech.

Despite the Supreme Court's earlier deference to the unconstitutional actions of the legislature and executive, in 1969 it did an about-face and began to move toward the proper protection of speech as nearly absolute. Clarence Brandenburg, an Ohio Ku Klux Klan leader, invited a Cincinnati reporter to cover a Klan rally in Hamilton County, Ohio. The events filmed by the reporter show several men in robes and hoods with firearms while burning a cross and making a speech. The speech included reference to the possibility of taking “revengeance” against “niggers,” “Jews,” and those who supported them.
⁸
Brandenburg called for a march in Washington, D.C., on July 4th 1964, and was subsequently arrested under Ohio's criminal syndicalism statute. The Ohio statute, enacted during the Red Scare in 1919, intended to punish those who advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

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Brandenburg received a one-thousand-dollar fine and ten years in prison. He appealed his conviction all the way to the Supreme Court, which issued a monumental decision. The Court found the Ohio statute to be unconstitutional because it punished “mere advocacy” of unlawful action. According to the Court, and what is still current law, the United States Constitution does not allow the federal government or state governments to proscribe mere advocacy of the use of force or unlawful action, “except where such advocacy is directed to inciting or producing
imminent
lawless action
and
is likely to incite or produce such action.”
⁹
Neither the federal government nor the state governments can pass laws to silence offensive or inflammatory statements that are not likely to result in imminent lawless action, or in other words, violations of natural rights. All innocuous speech, the Court declared, is absolutely protected. And all speech is innocuous when there is time for more speech to resist it.

Free Speech in Political Elections?

Despite the merit of
Brandenburg
, the battle over freedom of speech has raged forward. Today, the factual nature of the cases is significantly different than
Brandenburg
or
Schenck
, but as any natural rights advocate can recognize, the principles are the same. We know that individuals have a natural right to free speech, and only through due process can this right be stripped. But what about groups of individuals who choose to express themselves collectively?

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Take, for example, the publicly condemned holding in
Citizens United v. Federal Election Commission
(2010). The Supreme Court invalidated a sixty-two-year-old statute prohibiting corporations and labor unions from utilizing general treasury funds to support or defeat a candidate in the sixty days preceding an election. The majority opinion, written by Justice Anthony M. Kennedy, held that the First Amendment does not allow for the government to distinguish between speakers in order to determine who can voice their support for political candidates. As Justice Kennedy wrote, the First Amendment “has its fullest and most urgent application to speech uttered during a campaign for political office.” Moreover, the fact that one speaker may have more wealth than another does not necessitate a ban on speech.
¹⁰
Bill Gates most likely has more money than you and I combined, but a ban on his speech simply on account of his wealth would be patently unconstitutional.

As this book is being written, political opposition to
Citizens United
is mounting, threatening to undo its progress. Opponents of the decision claim there will be corruption in the electoral process, as individuals' opinions will be overshadowed by corporate prerogatives, and the holding will lead to a future in which the President is chosen by the Board of Directors of General Motors. (Ironically, it is far more likely today that the President will choose the Board of Directors of General Motors than the other way round. But that is for a later chapter.) However, while these dire predictions might be worth debating, it is the corporations' and unions' constitutional right to endorse the candidates of their choosing. After all, our Founders did not seek to found the most convenient or efficient form of government, but the government which would best guarantee our fundamental liberties. Critics of
Citizens United
err in their failure to recognize this point.

The Obscenity of Obscenity Restrictions

Just as there are vehement critics of
Citizens United
and its protection of groups of individuals, there are also many who seek to regulate speech which they find to be “obscene.”
Miller v. California
(1973) involved an individual who conducted a mass-mailing campaign to promote his business selling illustrated books with adult pornographic material. In trying to define what speech is “obscene” the Court developed a three-part test, which is still used today: Works or speech are obscene if (1) the average person, applying contemporary community standards, would find the work, as a whole, appeals to the prurient interest, (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) the work, taken as a whole, lacks serious artistic, literary, political, or scientific value.

46

This standard is riddled with problems. First, it is a blatant violation of the Natural Law to restrict speech merely on account of its offensive nature. It presumes that government may assault natural rights, and that presumption indicates that we exist to serve the government. Are freedoms subject to the government's whims really freedoms at all? As stated before, there can be no natural right not to be offended. Moreover, one can simply avert one's eyes and ears if he is truly offended.
Miller
itself demonstrates the hypocrisy of such a doctrine: The recipients of Miller's mailings did not have to open them up and view their contents; they could have just thrown them in the trash and successfully avoided any offense. If, however, they
voluntarily
view the pictures inside of a mailing which clearly contains pornography, they cannot later claim that they were offended, and thus seek the protection of the law. By insinuating that people cannot stand on their own two feet without the aid of the government, such a doctrine is demeaning to both the individual who is deprived of his natural rights, and the individual who is “offended.”

Moreover, such a doctrine is hopelessly subjective, and thus offers arbitrary protection of our natural rights. How can judges determine what is of artistic, literary, political, or scientific value? Not even experts in art, literature, politics, and science are able to do so! Surely, Darwin's contemporaries did not believe that his theory of evolution was of any scientific value; where would science be today if his ideas could have been suppressed merely because they were unpopular? Moreover, it is clearly in violation of the Natural Law to judge speech according to community standards; the Natural Law transcends temporal local cultures. Similarly, the Constitution does not grant the government the power to restrict your speech based on moral or value judgments, nor does it grant the government the power to criminalize speech, which is legal in some parts of the country and illegal in other parts. The Constitution and the Natural Law are universal. The whole purpose of the First Amendment is to assure that individuals—and not the government—choose what to think, say, publish, hear, or observe.

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Not Now, Not There, and Not Like That

It should be clear by now that the government does not view the First Amendment as protecting speech it fears, hates, or finds offensive. However, the government additionally attempts to regulate where and how you enjoy your natural right to free speech through so-called time, place, and manner restrictions. To illustrate this type of restriction, consider the act of burning an American flag to show your discontent with public policy. Clearly, the government would despise the content of such expression, and seek to restrict it by any means. However, the government might also choose to regulate your ability to burn an American flag by prohibiting you from doing so in an area where fires are banned. Thus, the government is restricting the
place
in which you can express yourself, rather than the permissible content of your expression. It is that former type of restriction to which we now turn our attention.

Although time, place, and manner restrictions may seem less severe than content-based restrictions, nonetheless they should not give the government any more license to regulate speech. It still must demonstrate that the restriction on expression is necessary to prevent the violation of another's natural rights. Let us consider a few examples. If you lived in a very crowded area, would the government be justified in preventing you from blaring extraordinarily loud music at midnight, or at least requiring you to pay “damages” to your neighbors for doing so? Certainly, by playing obnoxious music, you are diminishing your neighbors' natural right to the use and enjoyment of their property. And over time, if you were habitually noisy, then most likely you would decrease the market value of their property. Thus, although the government could not
criminalize
this kind of expression, it would be more than justified in making it actionable, or in other words, the basis for a lawsuit.

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But what about restrictions on picketers outside of your house, and not on your property? Assuming you could enter and leave your house just fine and they weren't being so noisy as to diminish the use and enjoyment of your property, then there would be absolutely no justification for any restriction of their freedom of speech. In what way are your natural rights violated? Although it might be embarrassing, there is no natural right to be free from embarrassment. Does it seem as if they are invading your privacy? Then simply close the blinds. In sum, although it may seem inconvenient and annoying, the protesters' fundamental liberty to express themselves must prevail.

I was shocked during a trip to see the Redwoods at the Muir Woods in Northern California to find a small, government-mandated “First Amendment Zone” located adjacent to a parking lot and hundreds of yards away from the Redwoods. How effective can environmental speech activists be when they can't get anywhere near the trees they want to protect? What gives the government the right to restrict our speech like this on our federal park lands?

Where Do We Go from Here?

While the last few decades provided for the removal of many governmental restrictions on our natural right to free speech, it appears as though the War on Terror may halt these best efforts. As we have seen, so often it is fear of insecurity which provides the impetus for restrictions on speech. Under the Patriot Act, for example, the FBI is provided with the authority to write National Security Letters, or in other words, self-written subpoenas and warrants. Moreover, if an FBI agent shows up at your door with a self-written search warrant, the agent may command you not to tell anyone else about the search—not your spouse at home, your priest in a confessional, your doctor, or your lawyer; not even in a courtroom,
under oath
, without violating the Patriot Act and risking a five-year sentence in prison.