Tongue in cheek and with a tinge of sarcasm, Rich Lowry
writes: “The First Amendment Is Such a Nuisance,” an article that appeared on
April 2, 2014 in National Review Online. Presented as it is, the article makes
sense if all the assumptions that Lowry introduces are correct, and all the
sayings and motivations he attributes to other people are exact. Even then,
there would be another side to the argument.
Because I know I can never do justice to the causes of people
who are able to do it themselves, and have the platform from which to do it, I
shall not discuss any of what Lowry has dredged out about other people.
Instead, I shall articulate an idea I have been discussing on and off for a
long time, one that is based on my personal experience with regards to the
so-called freedom of speech in the so-called liberal democracy that is supposed
to be in effect in North America – but has somehow eluded me for nearly half a
century.
I begin with the notion that while some people in this day
and age remain so naïve as to do bad things openly and get caught, most people
are too sophisticated to do bad things in a simple fashion. These people know
what the law says, and they do what is necessary to circumvent it without breaching
it. More effectively, they use the law to defeat the purpose for which it was
made. For example, the tax code contains loopholes allowing it to be used by
creative accountants to defeat its purpose while the First Amendment of the
American Constitution requires an even more creative mind to use it for the
purpose of suppressing other people's right to free speech.
My contention all along has been that because freedom of
speech is so important that the American Constitution forbids even the Congress
from passing laws that would curtail it, we must in the same vein consider
making laws that would punish those who commit acts that result in the
curtailment of the right of others to freely express themselves. Alas, I failed
to even spark a debate based on this idea. It seems that the subject of freedom
of speech is so foreboding, no one dares touch it but the judges of the
American Supreme Court, and when they do, it is to reaffirm it as it stands.
And this is what happened when the court rendered its decision
in the McCutcheon v. FEC case; the reason why there has been reactions from all
quarters, including from Rich Lowry who echoed what came in the written
decision, and wrote the following: “The First Amendment is for strippers, flag
burners, pornographers, funeral protesters and neo-Nazis, but not for the
people trying to give money to political parties or candidates. They are a
suspect class, marked out as a threat to democracy because they want to
participate in democracy.”
The response to this idea is that speech given in a place
where it is normally rendered such as parliament, must be unlimited as long as
you have something new to contribute, and there will be time for the opponent
to respond. But closure will cut you off otherwise and rightly so. As to the
kind of speech that is expressed by action such as stripping, burning the flag,
committing acts of pornography, protesting at funerals or staging a neo-Nazi
parade – some limits are placed on such activities when they cross the line
from being free expression to being abuse. For example, stripping and
pornography are not permitted inside a kindergarten. Burning the flag, staging
a neo-Nazi parade, protesting at a funeral or near an abortion clinic are not
permitted inside perimeters set by the courts. And there is the unforgettable:
You cannot shout “fire” in a crowded theater.
Does that mean it is appropriate to place limits as to how
much an act will be permitted to influence the outcome of an election? My
answer is yes. And this is because freedom of speech as long as it remains
speech must be unlimited. But the moment that speech is express by action, it
becomes a zero-sum game. What someone gains, someone else loses. The one that
gains will have unlimited speech; the one that loses will be shut out entirely.
I know because I was shut out for 45 years, and I am still
blacklisted. This would not have happened if I had the money of the Koch
brothers or that of an Adelson.