By Mark David Blum, Esq.
The very first issue our Nation’s Founders wanted to guarantee for future Generations of Americans was “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.” Today, we refer to this as the First Amendment. Logic and common sense dictate this rule is First because it was deemed most important.
Much humor is being had these days at the expense of the hypocrisy of the conservative movement. Now shed of its skin and seen for its truth, no longer can you approach a Republican and ask if they would allow their daughter to have an abortion to stop a terrorist attack. These days, you might get a “yes” to that question. Mainstream Republican thought seemed to have shifted from the conservative reactionaries to more mainstream.
The legal profession still has to exorcise the conservative demon from within its own ranks. Brought forward by the Federalist Society, is the once termed “strict constructionist” – now called “originalist” movement that proclaims to only interpret the law as originally intended in the Founding documents and the intentions of their authors. Alas, but if that were only true. I much prefer to refer to their doctrine as being marginalist and arcane.
When read together with the 14th Amendment, the express language of the First Amendment includes the following phrase: “Congress (meaning government of any type) shall not abridge the freedom of speech." There is no ambiguity, no condition, and no subjective language in that phrase. Government is strictly prohibited from reducing or lessening in duration, or scope, or diminishing or curtailing the free expression of your thoughts and feelings. This right, by the way, does not end at the lenses of your eyes or wax filled gateways to your aural canal. Nothing prohibits government from limiting my right to swing my fist and government has so boundaried that right at the tip of your nose. At the same time, government can take no action to interfere with my right to express offensive or dangerous words. So says the First Amendment to the Constitution.
But we come upon the problem of “shouting fire in a crowded movie theater”. The constitution says that no government can make any law which would prohibit even shouting “FIRE”. It would not be a crime; though you could be exposed to civil liability.
Yet on top of the Constitution we have another body of law called Judge made law. Whether it be the Supreme Court of the United States or the Supreme Court of Onondaga County, if a judge holds that a government can take punitive action against you for the content of your speech, then you can be criminally liable. Look no further than New York State’s Disorderly Conduct Law which states in relevant part, “a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, in a public place, he uses abusive or obscene language, or makes an obscene gesture.”
We used to have Sedition Laws where you could not speak out against the Government. It is against the law to use threatening words against the President and it is illegal to advocate “the violent” overthrow of the United States. Yes, we can still advocate the government be overthrown with roses and smiley faces or that the President be tarred and feathered. Remember the words of President Eisenhower, “a soldier’s pack is nowhere near as heavy as a prisoner’s chains.”
A true strict constructionist / originalist would be appalled not to read the Constitution as meaning what it says from the first word to the last. True originalists would argue that, “if you want to say something stupid, then you suffer the social consequences but government may not limit your absolute right to be an idiot.” Thanks to the Conservative movement and their domination of the Judicial Selection process, there is now a body of Judge made law, all contrary to the express language of the Bill of Rights, which has become accepted as the norm.
In California, a member of a local water district had a Pink Floyd ‘Momentary Lapse of Reason’ and bragged at a public meeting that he was a winner of the Congressional Medal of Honor. Now he is facing federal charges of violating the Stolen Valor Act.
Then, there is the case of the nerd from M.I.T. who made herself a “battery-powered device on her shirt, which had flashing lights and the words "Socket to me" and "Course VI" (a major at MIT) written on the back.” She wore the shirt to the airport, was summarily arrested, and is charged with making a bomb hoax.
If our Founders had pondered the concept that being an idiot in your words and ways was to be unprotected activity, they would not have gone out of their way to assure the contrary. Unless there is a real bomb strapped to the girl’s chest or somehow a public (unsworn) lie posed a threat to life, limb, or property, then no government can intervene. So what if the police are afraid or aggravated or annoyed or alarmed. That is not grounds to deny a citizen their freedom or deprive them of their assets or good name. Shun them and embarrass them but do not deny people their liberty for mere words or expression.
I could not agree more with the principle of a strict constructionist on the bench. Who better to read the constitution and say to the government, “the constitution expressly prohibits your behavior”. Overwhelmingly however, the judiciary has moved to the right and become so activist, that government can no longer do wrong. “Judicial activism” is now defined as being any act by a judge to over rule an act of the legislature. To our Founders, that was the very role intended for the judiciary; to always keep government within the four corners of the Constitution. Whether it is fear of public shaming or lust for re-election dollars, too many judges nowadays stand shoulder to shoulder with the government against the citizen.
The true enemy of the America People, from 1787 on was identified as being “the government”. Over the years we have faced military threats, but our nation was built on a paradigm that the true enemy of liberty was government. Such is the uniqueness of the American experiment; never before attempted or since copied. Conceived by Thomas Jefferson, ours is a nation where political power flows uphill and unless a right is specifically surrendered, it remains safely in your pocket and in your home. We do not get rights from the government like socialists line up for food handouts. Government must come begging.
I write these words for only one reason. Tomorrow, I may not be allowed to do so.