Is Freedom of Speech the Freedom to Lie?

By Lynda Lamp 

Something dangerous is happening in America, and it turns out it’s been going on for quite some time. Many of us may not have noticed or may have noticed but thought it was not important enough to concern ourselves with, failing to recognize the imminent danger. When we look around now at the sea of hate that surrounds us, in just about every direction, one can’t help but wonder if there aren’t some crafty constitutional lawyers at the head of this movement.

The dangerous thing I am referring to is the telling of lies, the spreading of untruths, the making up of stories and the hate and divisiveness that is spread through them. In short, the propaganda that Americans are being bombarded with from “conservative,” “right,” and “alt-right” news (fake news) and media outlets for the past thirty years and most recently from our White House administration. I fully realize that there are those on the “right” who will claim that it is the “left” that are the liars, and they aren’t entirely mistaken. It seems that lying is a part of government and politics, but the bulk of falsehoods and the spreading of hate are promulgated by the conservative (and religious) right, let there be no doubt of that.

The week of July 31, 2017 (the final week of The Mooch, who lasted just 10 days as the Communications Director and who also had a proclivity for lying or at a minimum extreme exaggeration), was a week of what seemed to be unending stories of lies. The lies of the President of the United States, the lies of his staff, the lies of his family members, the lies of their lawyers,  and even the lies of Congress, dominated the news.

The President of the United States (POTUS) has become known as someone who lies compulsively, shamelessly, daily.  The New York Times has been compiling a list of the lies and has an article here (that has not been updated since mid-July, so it’s VERY out of date). One thing you can’t see in their chart is how many lies he may have told in a single day. One must also wonder at their definition of “lie” because as far as many are concerned much of his inaugural speech was a lie, and they don’t cite him as lying that day. The lies that stand out from last week include just about everything he said! He gives new meaning to the term “pathological liar.”

But is his lying illegal? Is it permissible as the POTUS to say anything you please, whether it is true or not?

One of the most basic freedoms in our country is the freedom of “free speech” which was granted to us in the First Amendment to the Constitution in 1791, along with the freedom of religion, freedom of the press, and the freedom to assemble. All of these freedoms are under attack from the current Administration, and they are doing everything that they can to undermine these foundational institutions of our Country while at the same time using these same freedoms against us.

Freedom of speech has been under attack from almost the first moment it came into being.  In 1798, just 7 years after its signing, Congress passed the Sedition Act, a law which severely limited freedom of speech.  Driven by the fear of war with France, the Sedition Act implemented severe penalties for any kind of malicious, false or scandalous comments made against the federal government, Congress or the President. Under the Sedition Act of 1798, twenty-five people were arrested for various offenses that included a painted sign that said “Downfall To The Tyrants of America,” and a verbal wish that a cannon would hit the President in the seat of the pants. The law expired in 1801, and none of the arrests were ever challenged in front of the Supreme Court. Thomas Jefferson, a vehement opponent of the act, pardoned everyone convicted under the Sedition Act when he became President.

Freedom of speech is a relatively broad freedom, and it is perfectly allowable to speak hatefully about and to another; it would also seem it is perfectly fine to lie, although I will argue that was never its intent! It is fair game to say anything you want, as long as you are not a “clear and present danger.”

Merriam-Webster’s Legal Dictionary Definition of clear and present danger:  a risk or threat to safety or other public interests that is serious and imminent; especially :  one that justifies limitation of a right (as freedom of speech or press) by the legislative or executive branch of government clear and present danger of harm to others or himself

This determination dates back to 1919 and the Supreme Court case Schenck v. the United States and has been tested and challenged numerous times since.

Restrictions on our freedoms always seem to escalate during times of war, which is interesting since our freedom is clearly under attack now by this Administration, but we are not currently “at war.” Except perhaps with ourselves? The Administration and their supporters versus the rest of the Country and the World?

The Schenck case stemmed from laws passed in 1917 in response to WWI and the Federal Espionage Act which prohibited false statements intended to interfere with the military or promoting the success of the country’s enemies. There were additional penalties for trying to dissuade men from joining the military. The following year in 1918 Congress passed another law that forbade any statements of disrespect for the government, Constitution, flag or military uniforms.

General secretary Charles Schenck, of the American Socialist party, violated these laws by circulating 15,000 circulars designed to dissuade men from joining the army. Schenck argued it was his freedom of speech right under the First Amendment.

In the ruling, Justice Oliver Wendell Holmes reflecting a unanimous court said that a person’s right was not absolute and that there were times when the government could limit a citizens right to speak. When there is a “clear and present danger,” whatever that may mean.

Arthur Terminiello challenged the limits of free speech after WWII by giving talks filled with hate and suggesting that Hitler had been right and that Democrats, Jews, and communists were trying to destroy America.  (Sound familiar? We’ve heard this kind of talk daily on some radio and talk shows for years.)

Terminiello’s speech elicited violence in the form of bricks and bottles being thrown through the windows by the protesters outside. Terminiello was arrested and charged with disturbing the peace. The case Terminiello v. Chicago, 337 U.S. 1 made its way all the way to the Supreme Court. In 1949 in their majority ruling (4 of the 9 justices dissented) they reversed the charges, Justice William O. Douglas writing “it is only through debate and free exchange of ideas that government remains responsive to the will of the people….” Free speech must occur in a democracy, even if it is uncomfortable and causes, upset, disputes or “stirs people to anger.”

“Freedom of speech, though not absolute, is protected against censorship or punishment unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance or unrest.” ~ Justice Douglas

The Koch Brothers and their ilk are likely well versed in First Amendment law because what has not yet been clearly defined is under what circumstances do you have a “clear and present danger,” and how do you determine when you are justified in suppressing free speech? They seem to know how to work freedom of speech so that it serves them in the spreading of their lies.

In today’s news, we’re seeing the Administration trying to contain the leaks coming from within the Administration, and the Department of Justice is threatening harsh ramifications. Shouldn’t the leakers be protected under the First Amendment?  What or who exactly is the “threat” under these circumstances? What is the “clear and present danger” to the material being leaked?

The danger that the truth will come out? The danger that we might know what is actually happening at the White House? The danger that we will be aware that there are traitors in the House and that the Administration has been taken over by racist fascists?

All around the country States are passing laws to limit free speech and the freedoms to assemble (protest). While in most cases the courts are upholding our Constitution, how long will it be before all the people seated in the courts are Koch Brother plants? If their cancer of hate, racism, and suppression of the general population spreads into our judicial system, we will have lost one of our checks and balances.

In 1969, not quite 50 years ago the Supreme Court ruled in the Brandenburg v. Ohio case that speech can be restricted if the speaker strives to “provoke an imminent and likely violation of the law.”

This was the ruling cited when Trump suggested violence at his campaign rallies.  It also could be mentioned in response to his speech to the Suffolk County Police Department on July 28, 2017, where he blatantly suggested more police brutality was appropriate, and that he encouraged it.

What it all seems to come down to are intent and circumstances.  With a biased Supreme Court, as we have now with Gorsuch, a Koch Brothers plant, we can be certain fairness and neutrality will be challenged. Our freedoms are under attack, our opponents have smart, unscrupulous lawyers, and most of the money in the country if not the world.

What are we going to do to protect our freedoms? How are we going to find the truth?

Start with Eat, Pray Vote. Insist on love, first for yourself, then from yourself for others. Ask others to join you in heart-based conversations on how we fix our Country. We must not fall into violence. We must navigate this crisis in a way we have never navigated anything before or we will fail our mission miserably. We came here to create peace on earth. We’re lost.

Go within to find your truth. Ask yourself the hard questions. Be honest with yourself and your answers. Feel your answers in your heart, don’t try to think them in your head. We need to get out of our heads and into our hearts.

This isn’t just about saving our Country anymore, it’s also about saving ourselves and saving our souls.

 

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