Blowing Away the Constitutional Promise

By Mark David Blum, Esq.

As an attorney who built a career on Constitutional law and litigation, including having won a substantial First Amendment Free Speech case in United States District Court here in Syracuse, I am appalled at the obscenity of a government actor engaged in content based speech censorship.

Specifically, I refer to the New York State Fair Director, a political appointee and “government official” who summarily and without legal basis or due process, removed a Blue Ribbon Award Winning photograph from display at the New York State Fair. His stated basis therefor was that the photograph was inconsistent with the Family Friendly attitude he was bringing to the fairgrounds. Similarly, he was personally offended and received “a near dozen” complaints about the content of the photograph. Even the Fair rules say expressly that any photograph accepted for judging must be judged and cannot be removed. Herr Director feels that he has the exclusive right to trump the rules and take action based on the content of artwork without any oversight or judicial review.

So let’s be clear; this is not a situation of yelling “fire” in a movie theater, it is not a boombox blasting in a hospital zone at two in the morning, it is not a call to armed insurrection and the overthrow of the U.S. government. Those are lawful speech restrictions based not on content but on time, place, and manner. Such restrictions are routinely and commonly understood as being proper inhibitions on an otherwise primary and fundamental right.

Instead, we are looking at a situation where a government appointee looked at a piece of art and therefrom took personal offense and then removed the art. Despite nearly a million people having moved through the fairgrounds, a couple dozen complaints fails as a basis for any argument.

Likewise, we are not talking about a crucifix in a jar of urine. It is not a government funded art project. It was properly offered by a professional photographer for a legitimate art contest. The photograph was accepted for judging and in the end, came out the winner.

Art, like writing or public speaking, is very subjective as to how it is perceived. Being offended at the content of a book or movie or painting is certainly within each citizen’s right. There is no constitutional right to not be offended. To the contrary, being offensive is the birthright of freedom of speech. Allowing a government official to summarily act on his own sense of art is a direct frontal assault on that most basic fundamental right. Let him be offended; art is supposed to draw out emotions. No government or individual therein has any lawful right to censor content because they personally find it offensive.

Recently, there was a similar situation at Syracuse University. There, in response to an offensive student based television production, the University shut down the television station. Law professors from the University wrote that, “if the free speech of some silences others, then free speech is undermined, not promoted. As law professors, we thank Nancy Cantor for acting in a way to enhance free speech values on campus.” In their own words, these professors claimed that when one person’s speech silences another’s, doing so is contrary to the constitutional principles of free speech. When a state actor and not a private university is the offender, the First and Fourteenth Amendments provide an insurmountable wall.

Whether it be Nazis marching in Skokie, Louis Farrakhan speaking at the National Mall, Pat Robertson, or Eugene Debbs spreading anti-war literature, real “speech” is exactly that kind of speech that should offend. Free speech is that which should shake you to your core; challenge your most fundamental beliefs. The best way to defeat an ignorant idea is not to bury it and give it magical powers. Let the idea see the light of day. Humans are not idiots and can discern for themselves what is right and wrong.

Some of us still hold dear to the basic principles that the Constitution should be narrowly and strictly interpreted. ‘Congress shall make no law’ means just that: No Law. There is no question that the State Fair and Dan O’Hara qualifies as a State Actor for §1983 purposes.

“Speech” is the most cherished of our rights. It is foremost in our Constitution. Without that right protected vigorously, all other rights have no meaning. If you cannot speak, ideas cannot move. Political Correctness has turned into the great ballgag of the Second Millennium. Because the sensibilities of a few were incensed, everybody has to be punished. This argument is old and tired and says nothing more than because a baby cannot chew steak, all adults must drink milk.

One point with which I strongly disagreed with the law professors was their conclusion that, “free speech is a means to an end, not an end in itself.” To the contrary, the “END” itself is the Right to Speech. Nowhere in the Constitution is there a hint that “what” you say is the condition to having the right to say it. The freedom to speech itself and the protection thereof IS the end.

The award winning photograph at issue, on any normal day, would not have gotten a second look. Year after year, the judges at the art exhibit and I have strong disagreements as to which entries deserve awards. We always disagree with ‘best of show’ and I usually find several amazing entries completely overlooked.

This year, because the Spitzer appointee had declared the Fair suddenly to be Family Friendly and made that his motto; to the detriment of adults. The irony of discovering on the first day an award winning photograph of a blow up sex doll with a cigarette in its mouth gave the art piece a greater place in history. It was clearly contrary to whatever O’Hara deems to be family friendly and laughable in how its appearance garnered the blue ribbon. Personally, I found nothing interesting about the photo other than its irony being a blue ribbon award winner.

It is patently unfair for a government entity to decide whether the content of speech or the manner of its presentation, meets some esoteric image of ‘family values’ as they recall from their youth. To quote Thomas Jefferson, “some men look at constitutions with sanctimonious reverence, and deem them like the ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment… laws and institutions must go hand in hand with the progress of the human mind… as that becomes more developed, more enlightened, as new discoveries are made, institutions must advance also, to keep pace with the times… We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain forever under the regimen of their barbarous ancestors."

Apparently Dan O’Hara, his boss the Commissioner of Agriculture and Markets, and their overall boss Governor Eliot Spitzer should have hitched their censorship wagon to Justice Oliver Wendell Holmes. Perhaps less time should be spent setting a common standard for art and dress and living in New York and more time learning of our government and rights to remind them of our Nation’s most basic principles and their role therein.

“I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country...” Oliver Wendell Holmes

“If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate.” Oliver Wendell Holmes

And, by Justice Hugo Black: “Without deviation, without exception, without any ifs, buts, or whereases, freedom of speech means that you shall not do something to people either for the views they express, or the words they speak or write.”

Fire Dan O’Hara and put someone in the job who not only understands the Fair, but of the rights of the millions who would visit there. To do anything less is to condone and sanction of the most offensive of actions.

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