Should "States' Rights" include limiting free speech?

[AuntiePinko]

Dear Auntie Pinko,

Let's get directly to my question. How do you deal with wingnuts who say that the constitution does not protect free speech? I hear this argument at times: “The first amendment says, 'Congress shall make no law restricting the freedom of speech...' There! See?! It says Congress shall make no law. There's nothing that says the states or other entities can't restrict your speech.”

I swore an oath to support the constitution when I joined the Marines. And I swore the same oath when I joined the Peace Corps. And so did George Bush and the entire U.S. Congress, for that matter. It's my belief that the constitution is the gold standard for human rights for anyone lucky enough to live in this country. Anything less than what the Bill of Rights provides for is—if you can think of a better phrase, please tell me—un-American. But how do you get extreme conservatives to hear that?

Now on to the pleasantries. I love reading your column, Auntie. You're always reasoned, enlightened and polite to your writers, whether you agree with them or not. Had to say that. About the constitution, I think sometimes about Barbara Jordan, Texas Representative to the U.S. House. She said, “My faith in the Constitution is whole. It is complete. It is total.”

Brian
Madison, WI


Dear Brian,

Well, that’s a new one on me. I’ve never had anyone, even the most fervent conservative, pull that argument out of the hat on the First Amendment. The closest I have heard is the old fire-in-crowded-theater debates and the assertions that ‘wartime’ makes it okay to temporarily place some limits. (We are now, by the way, seeing the dangers of that second argument: When you define ‘war’ as an open-ended state of armed hostility against an undefined, unlimited number of individuals and/or groups without national borders or the legal powers of states, there is no ‘temporary’ about it, is there?) But the notion that the Constitution doesn’t prohibit states from infringing on the rights it explicitly guarantees to all citizens?

Ahem.

Are these the same conservatives who don’t want state and local jurisdictions to have the power to regulate the possession and use of firearms? Are they the same conservatives who want to deny states the right to legalize the medical use of marijuana or assisted suicide?

Or are these the same conservatives who insisted, back in the 1960s, that the Constitution allowed states to deny equal access to voting and public facilities to people on the basis of their skin color and/or ancestry?

I don’t think there are too many people or political ideologies in America that can point to a 100 percent record of consistency in their interpretation of what the Constitution does, and doesn’t, allow. Even the Supreme Court changes its mind. When our particular ideological agenda is at stake one way or the other, we all become dogmatic about what the Constitution does (or doesn’t) allow, and we rarely worry that what we are advocating today is very different from what we argued yesterday. For example, liberals may argue in defense of the Constitutionally-protected right of an animal rights activist group to express antagonism to the fur trade in hateful, violent terms or to impede the access of those delivering test animals to laboratories, etc. on Monday, and on Wednesday claim that the “Reverend” Fred Phelps’ vile hate speech against gay people, disruption of funerals, etc., is not Constitutionally-protected.

The freedom to construct an elaborately-rationalized case for why the Constitution supports our agenda is, fortunately, guaranteed by that same Constitution. But what most of us forget is that the very same Supreme Court ruling that might advance one item on our particular agenda today, might well be the backbone of our opponents’ victory on some item on their agenda tomorrow. Today conservatives might want to grant states the right to infringe on freedom of speech, but what happens on the day when a Democratic President assumes power and arrogates to himself or herself all the same Imperial powers that conservatives have been insisting Mr. Bush should be allowed to exercise? If they protest, can those same ‘infringement of speech’ laws be used against them?

The Constitution is not a long or complex document. It is a little over 7500 words—College instructors assign longer term papers than that. Yet within those words are some of the most powerful guarantees of human rights ever devised. The entire purpose of those who wrote, argued, and voted to accept the document and its amendments was to create a government that would serve its people rather than tyrannize over them. The basis for moderate ideological differences in American political life is that this purpose isn’t being achieved—that we have sacrificed protection from tyranny to empower the government to serve, or that unnecessary protections against a real or imagined tyranny have deprived the government of its power to serve the people.

The root of extreme ideological conflict in America takes this one step further: The assertion that government’s only legitimate purpose is to protect against tyranny, and that virtually any other government service equates to tyranny. Or the notion that a government that cannot guarantee its citizens particular levels of physical or economic sustenance through its own ability to serve is, perforce, subjecting them to a form of tyranny and therefore illegitimate. Shades of meaning and interpretation and the context of current events confuse these ideological conflicts even further. But the words of the Constitution remain. We may amend them, using the Constitutional process itself, we may differ in our interpretation of their meaning, but we may not deny them.

Thank you, Brian, for your extraordinary, multi-dimensional service to our Constitution and your fellow-citizens. You gave a number of years of your best efforts to promote the integrity and ideals that our Constitution represents. I’m proud to have you as a fellow-citizen, and very grateful for your kind words. I hope that my discussion of the subject you raise has provided additional context for you, and thanks for asking Auntie Pinko!

[eallen]

1. Everyone who passed high school civics should answer: the 14th amendment

This is very simple. The Bill of Rights originally restricted only the federal government. States restricted civil liberty all sorts of things that they cannot do today. They established religions. The slaves states banned abolitionist literature. After the Civil War, the reconstruction amendments were ratified to change that. The major framer of the 14th amendment was quite explicit that its intent was to incorporate the liberties of the Bill of Rights also against the states.

The Supreme Court never fully adopted that view, even though that would fit originalist interpretation. But it eventually incorporated many parts of the Bill of Rights, including the 1st amendment rights, into the "substantive due process" guarantee of liberty stated by the 14th amendment. Those who argue that the 1st amendment doesn't apply against the states are trying to return to an ante-bellum view of the Constitution. But the Constitution has changed. Slavery also is gone, thanks to the 13th amendment.

[SteppingRazor]

2. Also, a multitude of Supreme Court rulings have said...

that state Constitutions may concede further rights to state citizens, but that the rights enumerated in the U.S. Constitution represent the bare minimum of individual rights. As such, any law created by a state that abridges these rights would, prima facie, be unconstitutional. In other words, if the Constitution says that Congress shall make no law restricting free speech, it follows that no other governing body can do the same.


P.S. Keep up the good work, Auntie P.!

[hobbit709]

3. Personnally, free speech to me

means you can shout "Fire!" but you'd better be prepared to face the consequences. To me anyone has the right to open their mouth and say whatever they please-insert both feet all the way-I don't care. I have the right to NOT pay any attention to you whatsoever. Let the KKK, the Commies, PETA, fundies, the Nazis, the freepers or the liberals make as big a fool of themselves as possible. One's right to free speech extends about as far as I can throw a punch.

[aein]

5. I would argue with you on the originalist argument

the history of the reconstruction amendments are far from clear.

I would simply argue: that if the drafters intended to incorporate the first 10 amendments, surely there was a better way to say it than "due process of law" or "privileges and immunities." Perhaps something to the effect of "each state shall be bound by the restrictions placed on the federal gov't found in the first ten amendments to this constitution."

[hraka]

4. It's pretty simple, actually

Bill of Rights

Amendment I
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.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment XIV
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(from Dictionary.com)
abridge: to diminish or reduce in scope <no State shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the United States —U.S. Constitution amendment XIV>

enumerate: To count off or name one by one; list: A spokesperson enumerated the strikers' demands.