LibertarianViewpoint.com

I was compeled to write about freedom of speech when some friends of mine commented, if government authorities were to be offended or intimidated by what I or anyone eles was writing here on libertarianviewpoint.com, we would be in some trouble (or at least increase the risk of getting into trouble). So I did a little research on freedom of speech law, and as of now my mind continues to be at ease. Additionally, I found some issues I’d like to critique to prompt a some discussions on.

First, some history:

Given here on libertarianviewpoint.com we most commonly engage through a libertarian framework in the direct criticism of government, it’s policies, the consequences of such policies, solutions in redressing grievances to potentially oppressive policies (i.e. staging a revolution, civil disobedience, etc.), and political theory – the focus of this history lesson will regard freedom of speech law on sedition. As such, the following was researched through articles from wikipedia, and the chosen content paraphrased/expanded upon by me:

In the 1919 case of Schenck v. United States, the Supreme Court heard the case of Charles Schenck, who had, during World War I, published leaflets challenging the conscription system (the draft) then in effect. The Supreme Court unanimously upheld Schenck’s conviction for violating the Espionage Act (which is still on the books today). Justice Oliver Wendell Holmes, Jr., suggested that “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

And so, the “clear and present danger” test was established, carried over in other court cases such as Debs v. United States (1919) in which Debs denounced militarism in a fashion having “natural tendency” to occlude the draft thus resulting in his conviction, and Gitlow v. New York (1925) in which Justice Edward Sanford precedented the state could punish words that “by their very nature, involve danger to the public peace and to the security of the state.” As such, the “clear and present danger” test continues to be a relative standard for the courts to this day.

Further, during the Cold War, the Congress enacted the Smith Act (still on the books today), which made it illegal to advocate “the propriety of overthrowing or destroying any government in the United States by force and violence.” The law was used as a defensive mechanism against Communist leaders. The constitutionality of the Act was questioned in Dennis v. United States (1951). The Court upheld the law. Chief Justice Fred M. Vinson relied on Oliver Wendell Holmes’ “clear and present danger” test when he wrote for the majority. Vinson suggested the doctrine did not require the government to “wait until the putsch is about to be executed, the plans have been laid and the signal is awaited”, thereby broadly defining the words “clear and present danger.” Thus, even though there was no immediate danger posed by the Communist Party’s ideas, the Court allowed the Congress to restrict the Communist Party’s speech.

Dennis v. United States has never been explicitly overruled by the Court, but subsequent decisions have greatly narrowed its place within First Amendment jurisprudence.

For example, the Supreme Court changed its interpretation of the Smith Act in deciding Yates v. United States (1957). The Supreme Court ruled the Act was aimed at “the advocacy of action, not ideas”. Thus, the advocacy of abstract doctrine remains protected under the First Amendment. Only speech explicitly inciting the forcible overthrow of the government remains punishable under the Smith Act. This is the precedent standing today.

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So, now we know the law, and as such we can all feel secure in our writings, while I doubt no assurances were needed. This assurance of course presupposes us reframing from explicitly inciting the forcible overthrow of the government. However, I’d like to offer some criticism in the name of education – because, heck, there may be a time we all will have to take on our moral duty to overthrow an oppressive government administration.

Knowing it is unlawful through the Yates case, we the people may not explicitly incite the forcible overthrow of the government for it would pose a clear and present danger – but I ask, why not?

The Declaration of Independence says:

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.“

The Declaration of Independence is arguably the foundation the United States constructed itself on. Many of those who influenced the writing of the Declaration carried over in writing our Constitution, which established the infrastructure in what our governing laws were to be. Without a doubt, the founders responsible in designing the society in which we live in today, intended for us to keep a strict eye on our government, and as such overthrow it if certain thresholds of oppression were crossed.

It deeply surprises me a Supreme Court Justice, Congressional Representative, Senator, or any public official for that matter, would ever consider making it unlawful for a citizen to explicitly incite the forcible overthrow of the government. In fact, I would argue the First Amendment was deeply rooted in providing the people protection in assembling to make such plans for the the forcible overthrow of the government. It seems to me, we the people would never have the public and secure ground to engage in what our founders intended us to do while the Smith Act (and its protection by the Supreme Court) exists. I would argue such laws be disband or rewritten for the protection of we the people to feel secure enough to entertain the notion of overthrowing the government if the appropriate circumstances exist.

Gratefully, what do you, my fellow readers, think?

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Next, I’d like to talk about another aspect of Freedom of Speech law regarding the existence of Free Speech Zones. Let me explain, followed with a critique:

Again, researched through articles from wikipedia, and the chosen content paraphrased/expanded upon by me, the stated purpose of free speech zones is to protect the safety of those attending the political gathering, or for the safety of the protesters themselves. Additionally, Free speech zones are areas set aside in public places for political activists to exercise their right of free speech as an exercise of what is commonly called “TPM” or “time, place manner” regulation of speech. Free speech zones are most commonly set up by the Secret Service who scout locations near which the president is to pass or speak. Officials may target those displaying signs and escort them to the free speech zones before and during the event. Protesters who refuse to go to free speech zones could be arrested and charged with trespassing, disorderly conduct and resisting arrest. Free Speech Zones originated during the 1988 Democratic National Convention, in which the city of Atlanta set up an official “free speech area” so the convention would not be disrupted. Since then, Free Speech Zones have been used in countless instances – while having protection by the Supreme Court.

In a critical response to Free Speech Zones, libertarians and others claim Free Speech Zones are used as a form of censorship and public relations management to conceal the existence of popular opposition from the mass public and elected officials. I would argue the United States as a whole is a free speech zone. Further, to have a system creating victims from those who subjectively establish Free Speech Zones or the time, place, and manner we the people are to engage in free speech, ultimately undermines the freedom inherent in what the protection of free speech represents.

Even today we see these ridiculous Free Speech Zones are alive and well. An article from rawstory.com reports in an article found here: http://rawstory.com/2009/12/protesters-change-offices/

Again, your thoughts? Please.

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Silly objections to free speech are continued to be made, redressed, and reported on. Delawareonline.com reported today (12/14/09) that last month a federal judge had to intervene after a Los Angelas middle school student posted a youtube video making fun of a fellow classmate – resulting in the student being suspended from school. Luckily the student made the right choice in taking the matter to federal court to defend her right of free speech, as here charge and suspension were overruled.

“To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence such speech caused a substantial disruption of the school’s activities, runs afoul [of the law],” Judge Stephen V. Wilson wrote in a 60-page opinion.

The article can be found here: http://www.delawareonline.com/article/20091214/NEWS01/912140342/Court-says-cyber-bullies-still-have-freedom-of-speech

I find it very disturbing we the people make battles amongst ourselves inviting the government to potentially constrict our already limited freedoms of speech. Judges like Stephen V. Wilson don’t exist behind every federal bench, and we the people ought to remember this fact. To all like those who victimized the student from the latter press release above, a little common sense and a little bit of tolerance will make life better for us all.

Finally, viva la revolution!!!

In Liberty,
Jonathan Raof