Ted Cruz, the senator from Texas , has done something useful. He wrote
an article that makes it possible to explore the subject of speech, and to
allow for the drawing of a distinction between the content and the form of a
speech. Once we do this, we can then explore to what extent it is appropriate
to limit the content of someone's speech and, more importantly, to what extent
it is appropriate to use or abuse one's own form to limit someone else's
content.
The Cruz article comes under the title: “The Democratic
Assault on the First Amendment” and the subtitle: “Congress has too much power
already; it should not have the power to silence citizens.” It was published in
the Wall Street Journal on June 2, 2014. In it, the author gives a number of
examples where he says free speech will be curtailed if the Democrats have it
their way and “expressly repeal the free-speech protections of the First
Amendment” of the Constitution. But none of the examples he gives makes sense
because his arguments are not sharp enough to distinguish between the content
of someone's speech and its form.
Let me give an example that will help demonstrate the
difference between the content and the form. Candidate A stands on a soap box
at a street corner and yells his political platform to an adoring audience.
What he says is the content of the speech and cannot be abridge by anyone, not
even the Congress. He now leaves the soap box, and candidate B stands on it to
yell his own political platform but to his chagrin, the audience flees the
vicinity as it finds this content unappealing.
The next day, Candidate A returns and yells the same speech,
drawing a new adoring crowd. He leaves the soap box whereupon Candidate B
stands on it. While the existing audience flees, several buses arrive, out of
which people disembark and start cheering the Candidate as he delivers the
speech that no other audience wants to hear. Still, a number of passers-by
become curious enough to stop and listen to the speech, and this has the effect
of drawing still more people. What happened here is that B changed not the
content of his speech but the form of its delivery. Is this form protected by
some provision or can it be abridged?
It is obvious that in paying for an audience, Candidate B
was able to make it look like the content of his speech had a legitimate
following, thus drew a legitimate audience that may or may not end up voting
for him. Unsure that this will be enough to put him on top when the actual
voting is done, B escalates his use of tricks. This time, he brings busloads of
hired people to stand as part of the audience the moment that Candidate A
stands on the soap box. And when A opens his mouth, the hired audience flees
the scene in apparent disgust, an act that conveys a negative message to the
legitimate audience standing there.
Seeing that he is not making enough of a dent to get the
legitimate audience to flee the scene, B instruct his hired audience to star
booing Candidate A, and to make it so that his words can no longer be heard.
When A uses a megaphone to deliver his message past the booing of the unwanted
audience, Candidate B escalates still further by hiring more people and by
equipping them with louder megaphones. With this, he effectively smothers the
message of Candidate A.
It is obvious at this point that the Supreme Court will say
B's escalation has gone too far and that a limit must be placed on the form of
speech that this Candidate is using. In fact, this is what the Courts say with
every injunction they issue limiting what can be done on the picket lines. It
is also what the Supreme Court has said with regard to the hecklers that pop up
at the abortion clinics and the funerals of soldiers.
The question now is this: at what point did the form of
Candidate B's speech become too abusive to have infringed on the content of
Candidate A's speech? Was it the moment he brought in the fake audience? Or the
moment that the audience booed Candidate A? Or was it at the end when B used
his superior skill at raising money to hire more people and equip them with
more powerful megaphones?
Let's now go further and explore the issue more deeply. To
completely defeat Candidate A and make sure he will never rise again, Candidate
B goes to city hall and lavishes the councilors with parties, gifts and
contributions. He asks them to allow for the possibility of placing two soap
boxes at the street corner, and they pass a bylaw to this effect. Now, every
time that A goes to his box, someone from B's camp stands on the other box and
directs his gang of hired hecklers to smother the message of A. Disheartened, A
leaves the street altogether and goes to the audio-visual and print media from
where he disseminate his message.
But there too, Candidate B employs his superior ability to
raise money, and uses that to smother the content of A's message wherever it is
received. This time, he does not even bother formulating a content to be his message;
he relies solely on the fashioning of the form which, in this case, translates
into the constant negative attacks on his opponent.
Is this as bad as heckling at abortion clinics? Can a limit
be placed not on the content which is almost non- existent in this case – but
on the form of delivering this sort of speeches?