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Free speech turns to the right: Part 1

September 10, 2018
Leonard Hitchcock pix

Leonard Hitchcock

The text itself seems admirably clear and unambiguous: “Congress shall make no law…abridging the freedom of speech.” Yet this clause, the free speech clause (FSC) of the First Amendment, has engendered a vast body of legal commentary attempting to explain exactly what it means.

Who is enjoined from abridging free speech? Not just the U.S. Congress, but any governmental legislative body, and any executive body as well. Whose right to speak is protected? Not just individual citizens, but, as it turns out, corporations. And what qualifies as “speech”? Not just verbal utterances, but signs held by demonstrators, and actions, such as burning the U.S. flag.

Is there general agreement about why speech is protected? No. For some theorists, the function of free speech is connected only with the operation of a democracy, in that it makes possible the “marketplace of ideas” without which democracy would be crippled. For others, it also importantly serves to promote individual goals of growth and self-fulfillment, and social goals involving the search for truth.

Is it the case that all speech is protected, no matter what its content, or where and when it occurs? Again, no. There are, in fact, a myriad of circumstances under which the freedom speech is legitimately infringed. The right to free speech is not an absolute right, it is a conditional one.

Free speech can come into conflict with other guaranteed constitutional rights, or with laws designed to enhance the welfare of the citizenry. Among the circumstances that justify restricting speech: if the speech presents a “clear and present danger” to society; if it is fraudulent speech; if it advocates and incites the overthrow of the government by force and violence.

When the U.S. Supreme Court (SCOTUS) confronts a piece of legislation that has been alleged to improperly restrict free speech, more often than not the judicial process it undertakes is called “balancing.” The court weighs the interests of the government (which presumably are also the interests of the governed) against those of the individual(s) whose speech has been curtailed. That weighing involves a review of evidence regarding the benefits produced by the legislation, the urgency and seriousness of the harm that it prevents, the exact character and extent of the suppression of speech, and so forth.

An example of balancing is a SCOTUS decision regarding the speech rights of public employees: Garcetti vs. Ceballos (2006). On one side of the judicial balance was the interest of the government in insuring the provision of efficient and effective services to the public via its agencies. On the other side were the employees’ free speech rights as citizens.

The upshot of balancing in Garcetti was the decision that all speech by employees while they were engaged in their assigned work tasks was subject to the control of their superiors, i.e. it was unprotected speech. But employees did not surrender their right to free speech entirely, for if an

employee published a letter in the local paper in his or her role as a citizen, that “speech” was protected. Even here, though, some balancing was involved. To qualify as protected speech, that letter had to deal with some “matter of political, social or other concern to the community.” In other words, a letter in which an employee simply complained of a supervisor’s unfair treatment, would not be protected speech.

An interesting aspect of free speech issues that have arisen in the U.S. over the past several decades is that the American public has tended to see them as involving politically liberal initiatives. The ACLU, an organization dedicated to protecting civil liberties, is generally regarded -- certainly by conservatives -- as a tool of liberals. The free speech controversies during the Viet Nam war usually pitted liberal, anti-government agitators against the establishment. But, on the other hand, the ACLU has also fought for the rights of Nazi sympathizers to exercise their free speech rights. Strictly speaking, the FSC seems intrinsically apolitical.

Further evidence of the fact that the FSC is not just a liberal weapon is this: in recent years it has been used to further a radically conservative agenda. Three cases can be cited as exemplifying this. The first, and earliest, is the Citizens’ United vs. Federal Election Commission (2010), in which it was concluded that donating money to political campaigns was equivalent to speech, and that corporations were sufficiently person-like to merit protection under the FSC.

The second case and third cases, both decided in June of 2018 were: National Institute of Family and Life Advocates et. al. v. Xavier Becerra, Attorney General of California, in which a California law requiring certain notifications to be placed in religiously-affiliated birth centers was nullified because it violated those centers’ free speech rights; and Mark Janus v. American Federation of State, County and Municipal Employees, in which the free speech rights of non-union public employees were found to have been unjustly abridged by a state law requiring those employees to pay fees to the union.

I will explore these three cases in part two of this column.

Leonard Hitchcock of Pocatello is an alumnus of the University of Iowa and did graduate work at Claremont Graduate University and the University of California, San Diego. He taught philosophy in California and Arizona for 15 years. In 1985, after earning a library degree, he was hired by Idaho State University. He retired from ISU’s Oboler Library in 2006.

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