Just how free is political free speech?
Vail, CO, Colorado
You might have noticed, as this political season winds, mercifully, to an end, that there have been some, um… untruths spilled out on the left and right.
If you believed them all, you wouldn’t want to elect any of these scoundrels. But that’s only if you took the bait. You see, during the periodic political wars that constitute our electoral process, claims by one side against the other tend to be a little hyperventilated and more than a breath exaggerated.
One thing we can be sure of is the “I cannot tell a lie” ideal with which our first president has been canonized by popular lore has fallen like the proverbial cherry tree in the dust heap of our long forgotten past. Even Adams and Jefferson ” the second and third presidents ” were at each other’s throats with dirty tricks and scurrilous accusations. It didn’t take long at all for the ideal of strict veracity to wither.
In each political season, the whoppers, distortions, misrepresentations and outright fabrications seem to have gotten worse and then, as Keith Olbermann might intone, “worser.” Maybe it’s just the ubiquity of modern media ” these guys are always in your face. But in politics, like in network TV, the ante of licentiousness, distortion, and gaudy sensationalism seems always to be upped.
Rather than asking “where will it end?” this column deals with what is permissible. How much free speech will be tolerated in the name of partisan politics and the machinations of democracy?
How far can you go?
The First Amendment, which by virtue of its ordinal primacy alone holds a certain preeminence, is comprised of two scared touchstones, the right to freedom of religion and the right to free speech. In its entirety, the First Amendment provides that:
“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.”
Look closely here. Like Dr. Seuss’ Cat in the Hat, when it comes to freedom of speech, under its hat the First Amendment has a Little Cat A and a Little Cat B.
Freedom of speech has two distinct parts. They are, that Congress shall make no law abridging freedom of speech and that Congress shall make no law abridging freedom of the press. With only the slightest fetters on its journalist ankles, the press may expose, expound and express whatever willy-nilly strikes its fancy, particularly where the object of the ink-stained page is a public figure, which is precisely what all candidates for office strive mightily to be.
As established in the landmark 1964 United States Supreme Court case of New York Times Co. v. Sullivan, absent “actual malice,” press reports regarding public figures cannot be considered libelous. “Actual malice” means knowingly false or in reckless disregard of the truth. Because of this high standard, when it comes to public figures, defamation cases are only very rarely successful.
Personal freedom of speech
Personal freedom of speech in many ways is even broader, especially in the political arena. It is a sacred tenet of our democracy for the body politic to suffer the criticism, lambasting, pillorying and Tina Fey-ing of its elected and wannabe elected figures.
Like pilgrims seeking cures at Lourdes, the American psyche salves its choleric humor in giving voice to grievances ” both real and imagined ” against the standard-bearers of one political persuasion or another. But the right, emphatically, is not absolute.
It was famously said by the distinguished jurist, Oliver Wendell Holmes, Jr., writing for a unanimous court in the 1919 United States Supreme Court case of Schenck v. United States, that “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic… 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.”
In order words, freedom of personal speech is expansive but it is not unlimited. If it unreasonably incites such passions as to threaten the fabric of society, it may be dampened or curtailed.
Which brings us the long way around to Keystone and Bethlehem, Pennsylvania, Strongsville, Ohio and other locales along the campaign trail where a handful of lunatic Obama haters and baiters have lost all reason, shouting hateful epithets from the crowd at McCain-Palin rallies.
Especially when assembled en masse and these knuckleheads are goading crowds of the Obama faithful, is this the kind of speech which should be stanched? Is this speech of such a nature as to present a clear and present danger?
United or not, singing Kumbaya, arms linked about a baobab tree or not, we are a single nation with challenges aplenty. To hatefully divide, when we need every resource to come together is, at the least, sheer lunacy.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins can be reached at 970-926-4461 or at firstname.lastname@example.org.
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