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Why Freedom of Speech is Absolute

Updated on November 23, 2014
William Avitt profile image

I am a contributing author at TheBlaze. I am an avid fan of movies and comic books. I am also a Roman Catholic apologist.

"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"

-First Amendment to the United States Constitution

In recent years there has been a lot of discussion over the wording of the Second Amendment and how it pertains to the right to keep and bear arms and who it actually applies to. What does it mean, "A well regulated militia"? While I believe the Constitution is quite clear on the matter, as the way in which people speak has changed I can understand how some ambiguity has developed. For instance, when the Constitution was written the phrase "Well-regulated" was clearly understood to mean "thoroughly prepared" whereas today a lot of people read that and think "strictly limited". It doesn't mean that those misinterpreting the Constitution are less wrong, but I can understand why they're wrong. What boggles my mind is when people still can't seem to understand the meanings of words that, even today with our vernacular being different than it was almost 250 years ago, have the same clear and precise meaning that they had when the Constitution was drafted.

Congress Shall Make NO Law

As quoted at the top of this article, the First Amendment to the United States Constitution clearly states that Congress shall make no law abridging the freedom of speech. To me, that's the end of the story. That's it. Congress shall make no law, none, not one. Any law abridging the absolute freedom of speech, therefore, is inherently Unconstitutional and illegal. It doesn't give the government the authority to set qualifiers for free speech or place conditions on it, and if it did, it wouldn't really be freedom of speech at all, now would it?

When making the case for why placing limits on free speech is acceptable and responsible, people like to use the example, first posed by Supreme Court Justice Oliver Wendell Holmes, that you can't shout fire in a crowded theater. Well, to begin with, this argument is disingenuous on its face. First of all, you absolutely can shout fire in a crowded theater, and there are times when it is absolutely the prudent thing to do, like if, for instance, there's a fire! Second, placing this limit on the freedom of speech is predicated on the assumption that people are going to trample on other people to get out of the door and people will be hurt. How many building evacuations have resulted in injury or death caused by people making a mad rush for the door? I can't think of a single one off the top of my head, can you? I'm sure it's happened, but buildings are evacuated far more frequently without incident than there are examples of an ensuing panic causing serious death or injury to others. So I find this argument to just be without any sort of merit at all. And if someone were to shout fire in a crowded movie theater and a panic were to ensue and people were to get hurt, the person who shouted fire wouldn't be charged with what he said, but with what happened. What that means is, you aren't charged with the speech itself, but with the act of inciting a panic. If you do shout fire and no panic ensues, the act of shouting fire in and of itself isn't illegal. And this has become such a cliché that people will probable just look at you like you're an idiot anyway.

We do have slander and libel laws, and I don't think there is anything wrong with those, but again they aren't placing limits on what you can say, instead they are just there to make you responsible for irresponsible speech. You can say all day long that the proprietor of a local restaurant engages is some unethical business practice, or whatever, and if that business loses customers because of what you said, you have caused damage to that person and you should be held accountable for it. It doesn't take away your right to say it, it just means that you bear the repercussions of your speech. Freedom doesn't mean your actions have no consequences, in fact quite the opposite is true. Where freedom is present, responsibility must also be present. Where gambling is legal, you bear the responsibility for your gambling. And that is good and fair. The same applies to an absolute freedom of speech. It should also be noted that truth is a defense against slander. So if this restaurateur actually is engaged in these unethical practices and he loses business because you exposed these practices, you aren't responsible for him losing business, he is. And again, that is good and fair. And again, the laws don't in any way interfere with your right to say whatever you want. Freedom is not without responsibility.

Free Speech Zones

One of the most egregious and blatant violations of the First Amendment is the idea of Free Speech Zones at political rallies or Presidential speeches or whatever the situation may be. Unless a particular rally is held as part of a private function on private property, no one has any right to tell you where or when you get to voice your opinion. By all means, if it's private property you have every right to ask anyone you want to to leave for any reason you deem fit. That's your property. But on public property, this sort of behavior is just unconscionable. Telling the President of the Untied States to burn in Hell is your God-given right, and it doesn't matter who the President is or where he is or even whether or not we happen to be at war. I've got news for you, people. The United States is almost always at war. There is almost always fighting by someone somewhere. I served in the United States Army in the late 1990s and early 2000s, before we invaded Iraq and Afghanistan. I technically served during "peacetime", but while I was in we were actively fighting in Kosovo and Bosnia. But it was peace time. The United States is always at war somewhere with someone, so this argument that you can't criticize the President during time of war is just stupid.

The idea of having Free Speech Zones, specified places where you are permitted to speak your mind, have been around forever, but they became very widespread, and controversial, during the Presidency of George W. Bush, and have continued through the Obama administration, which is just ridiculous when you take into account that Obama criticized Bush for employing these Free Speech Zones. No matter who does it, it's wrong. Republicans gave Bush a pass for it and Democrats criticized him, now Democrats are giving Obama a pass and Republicans are criticizing it. When will we get to a point in this country where people say that wrong is wrong and it doesn't matter if we agree ideologically with the person doing the wrong thing. It's still wrong! And it will always be wrong, no matter who does it. When you allow the government you agree with to trample on the freedoms of those who don't agree with you, you are opening the door for the government you don't agree with to trample on your freedoms. How about we all just agree not to trample on the freedoms of anyone?

"Hate" Speech

I've said this before and I am going to say it again here. No one has a right not to be offended. That right just simply doesn't exist. In fact, I would put forward that the entire intention of the First Amendment is to protect offensive speech. Polite speech doesn't need protection, does it? The speech clause of the First Amendment only exists to protect the right of people to say things that other people may not want to hear. Speech laws have always been one group of people trying to use the power of the government, and often times the government itself using its own power, to silence people who are saying things they don't want to hear. There is a word for this behavior and that word is tyranny.

We live in a country where if you tell a judge, in the courtroom, to go to Hell, you can be put in jail for contempt of court. I have serious problems with that. Have harmed this judge by telling him to go to Hell? Have you compromised his authority or the integrity of his court in any way? Well, if he ordered you to pay a fine of x number of dollars, you are still legally bound to pay that fine even if you tell that judge to go to Hell, so I would say no, you have not compromised the court in any way by saying inflammatory things to the judge. In fact, the judge has the last laugh, because you're still going to do what he ordered, or you're going to face further repercussions. Contempt of court should not be interpreted in such a way that it includes saying rude things to a judge. That is a violation of the First Amendment. If a court orders you to pay a fine and you do not pay that fine, that is contempt of court. If a judge orders you to perform x number of hours of community service and you fail to show up for that service, that is contempt of court, and in both instances you should be subject to further penalties for it. Telling off a judge is not contempt of court, it is the free exercise of your God-given right to speak your mind, plain and simple. The idea that a judge can put you in jail for saying something he doesn't like flies right in the face of the Constitution, and it's disgusting.

Justice Holmes also famously said, "Your right to swing your fist ends where the other man's nose begins," and that is a completely valid statement. However, where speech is concerned the distance between your fist and another person's nose is vastly greater than if you're talking literally. It takes a lot of speech to actually hurt someone, and the person claiming injury needs to bear the burden of proving that such an injury has occurred and being offended is not a legitimate injury. If someone is saying something you don't want to hear, you have the right and the ability to walk away, or to counter that offensive speech with your own speech. If someone is being a jerk, you have the right to tell him he is being a jerk. You do not have the right to lobby the government to make it illegal for him to be a jerk. At that point, you are inhibiting his right to be a jerk. The Mayor in the second Ghostbusters movie had a line which stated that "Being miserable and treating other people like dirt is every New Yorker's God-given right." Now, this line was meant to be humorous, and it is because of the stereotype of people who live in New York City to be rude, but it is also a rather profound statement that doesn't just apply to New Yorkers, but to every American.

Private Sector Limitations

OK, first and foremost people need to understand that the Constitution is only there to limit what the government can and can not do and it has no authority in the private sector. You see, freedom has to be a two-way street because if it isn't then it isn't freedom at all, it's tyranny. Several years ago Walmart decided that they would not carry any music albums that carried a parental advisory label, and the public decried them for violating the First Amendment. That is a ridiculous argument. Walmart did not in any way inhibit the rights of musicians to record whatever they want to record, all they did was assert their own right to not have to sell something they personally find distasteful. They do have that right. I can simultaneously support your right to say something while refusing to support you in saying things I don't agree with. The Constitution only applies to the government. It only limits what government can do. Private entities are not beholden to it. Just because you have the right to use profanity on a record doesn't mean I have to sell your crap.

People try to apply the First Amendment to their jobs, stating that prohibiting employees from discussing politics or religion or other things that could disrupt the workplace is a violation of the First Amendment. It isn't. If I own a business, I have sovereign authority to dictate how my employees behave, and if you don't like it I reserve the right to fire you. That's just how it is. If you don't like the rules of your workplace, you have the freedom to seek employment elsewhere. You see, there are jobs everywhere. You don't like your job, quit and find another one you do like. We only have one government. Government is the ultimate monopoly and because of this, the Constitution is there to limit the power that government has to rule over you. This goes back to what I stated above about the absolute freedom of speech does not mean there aren't repercussions from your speech. You do have the right to tell your boss to go to Hell, but he has to have the right to fire you if you do.

Do You NEED to Say It?

Another argument that is made to try to infringe on your right to free speech is by trying to means test speech by asking of someone needs to be able to say a particular thing. They do this to try to means test your Second Amendment rights as well. In some states you are required to prove you have a special need before you can be granted a permit to carry a concealed weapon. Anti-gun activists like Piers Morgan or Rosie O'Donnell always want to say that no one needs to own an "assault weapon". The answer to both of these arguments is the same. We don't have a Bill of Needs, we have a Bill of Rights. You have a right to say whatever you want to whomever you want and it shouldn't be contingent on if someone else thinks you have a need to say that particular thing. Who cares if I can get my point across without using profanity? I choose to use profanity to say what I want to say, and I should absolutely have that right.

When Kevin Smith released the movie Dogma, which lovingly pokes fun at the Catholic church and Christianity in general, there was a huge outcry over the movie. I say lovingly because Smith himself is a practicing Catholic. I'm Catholic, and I see nothing offensive in that movie. I like it. It makes me laugh. However, back in 1999 the Catholic League wasn't laughing. In fact, the League, joined by other Christian activists groups, protested the film. Kevin Smith loved the controversy and even went to a protest with his long time friend Bryan Johnson, who is a regular on the Smith produced reality show Comic Book Men, and participated with their own homemade protest signs. This is how freedom of speech should work. If you're offended, voice your offense and I'll gladly mock you for being offended. However, there were many televised newscasts of these protests and the Catholics weren't content with just protesting the movie. They were pushing for laws to be enacted that would make films like Dogma illegal, because they felt that their religious beliefs are sacred and should be protected from what they saw as mocking. Catholics aren't the only ones who want laws passed against the speech of people they don't agree with. There is a huge push right now to outlaw what some people consider "hate speech" and intolerance. Everyone wants to suppress the ideas of people that don't mesh with their ideas, and this is tyranny. Luckily, there have been no such laws passed yet, but they do have laws like this in Canada, and Canada claims to be a free country.

There is a problem, however, inherent in the system that all Americans need to watch out for. The courts have final say on what the meanings of laws are. If you tell a judge to go to Hell, and that judge sentences you to 30 days in jail for contempt, you can appeal that, but good luck in finding a judge that will agree with you that you have the right to tell a judge to go to Hell. The only reason people have an individual right to bear arms today is because the Supreme Court affirmed it, but what if they had voted the other way? It was a Supreme Court decision that decided that the Fourteenth Amendment protected one's right to privacy when it comes to having an abortion. The Fourteenth Amendment guarantees equal protection under the law and has nothing to do with privacy or abortions. Unfortunately, there is no checks or balances in place to ensure that judges aren't just making things up and legislating from the bench. I have severe problems with this and Americans need to be vigilant. Just remember, your rights are only one judge's opinion away from being wiped out. Is the First Amendment absolute? No, but that's only because we have allowed judges to tell us it isn't absolute, even though the text of the First Amendment states that it clearly is.

Should Freedom of Speech Be Considered Absolute?

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  • William Avitt profile image
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    William Avitt 2 years ago from Dayton, Ohio

    "It's the same kind of principle the Supreme court has applied to limit 'hate speech' (e.g. Westboro Baptist)"

    Please cite the Supreme Court case from which you get this information. As far as I know, the WBC has never been sanctioned or held otherwise culpable for their nasty, vile, protests. I agree that these things are vile, but we have to allow them. The alternative is that some day someone might decide that your speech is hateful, and therefore illegal. People like the WBC are easy enough to ignore. In fact, if we ignored them they would probably go away.

  • bonmotsminot profile image

    Sue Minot 2 years ago from Wellington, New Zealand

    Hi William, I think perhaps you misunderstood Holmes' homily about not having a right to yell "fire" in a crowded theatre. He's talking about risks to public safety, and of course he's not suggesting that you can't yell 'fire' if there actually is a fire -he's saying you can't yell it simply for the sake of asserting your right to free speech, when in fact there's no fire, because it poses a risk to public safety, and probably also enormous economic cost. It's the same kind of principle the Supreme court has applied to limit 'hate speech' (e.g. Westboro Baptist), or Nazi propaganda, etc -if your speech actively causes harm or incites others to harm or illegal activity, it's not permitted.

  • William Avitt profile image
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    William Avitt 2 years ago from Dayton, Ohio

    Well, you don't have to reply, but if you would actually READ my article I addressed all of those points. The US Constitution only applies to the government, it does not restrict private establishments. Free speech is meant to be absolute AS IT PERTAINS TO GOVERNMENT. Perhaps you should read before you comment. It's all there in the section subtitled "Private Sector Limitations."

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    Deborah Sexton 2 years ago

    You're wrong, the freedom of speech amendment, is not absolute.

    Everyone and every business has the right to prohibit certain speech.

    If you, or anyone came to my house, which I own, and used dirty language, I have the right to make you or them stop, and even to leave.

    If you yell fire in a theater when there is no fire, they have the right to make you stop yelling, because it is their place of business

    That's all I have to say to you, and will not reply if you comment,

    You ARE wrong