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Lessons for Israel in American Constitutional Law Freedom of Expression: Part II March 2, 2009

Posted by Daniel Downs in Constitution, Freedom of Speech, hate crime, liberals, morality, national security, religion.
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However important freedom of speech and press may be, its ultimate enjoyment depends on the preservation of other values, such as national defense, domestic tranquility, the general welfare, and justice—to allude to the great ends mentioned in the Preamble of the American Constitution. Revealing military secrets, blaring music in residential areas, plagiarizing authors, slandering individuals or groups, distributing pornographic materials, etc., are forms of expression no society can afford to tolerate, and no decent one will.

Nevertheless, the First Amendment declares “Congress shall make no law … abridging the freedom of speech, or of the press.” Hence, if the First Amendment is to be a constructive and not destructive principle of democracy, either certain kinds of expression must not be included under the category of freedom of speech and press, or, certain kind of restraints on freedom of speech and press must not be included under the category of an abridgment thereof. To the elucidation of these two alternatives I now turn.

Prior to and after the adoption of the First Amendment of Constitution, every State of the Union enacted legislation placing certain restraints on freedom of speech and press. Obscenity and blasphemy in some, defamatory and seditious libels in all, were made punishable in courts of law. This was the practice even in States whose own constitutions prohibited legislative abridgments of freedom of speech and press!

Surely, we ought not conclude that the legislative and judicial departments of these states knowingly or unknowingly violated their respective constitutions? The truth is they were merely following the common law distinction between liberty and licentiousness. Thus, consider the following passage from the law lectures of James Wilson, one of the signers of the American Constitution.

The lectures were delivered in 1790-91. Said Wilson: “The name of liberty we give to that power of the mind, by which it modifies, regulates, suspends, continues, or alters its deliberations and actions. By this faculty, we have some degree of command over ourselves: by this faculty we become capable of conforming to a rule: possessed of this faculty, we are accountable for our conduct.”

Two years earlier, in an oration celebrating the adoption of the Constitution, Wilson declared: “The enemies of liberty are artful and insidious. A counterfeit steals her dress, imitates her manner, forges her signature, assumes her name. But the real name of the deceiver is licentiousness.”

For Wilson, freedom did not consist in doing as you please, or saying or printing anything you like, free from the restraints of law and morality. Indeed, what made a man free—what made him human—was very much the rational principle of his soul. It was the power of reason that gave man genuine alternatives; that enabled him to choose between the better and the worse, to seek what is noble and to shun what is base, to regulate his life according to civilized standards of conduct.

Accordingly, many laws in those days embodied the thoughts of statesmen who rejected the notion that liberty included the right to say or print what was false, malicious, and destructive of the reputation and personal security of others. If such expressions were dignified by the name of freedom, freedom would be indistinguishable from licentiousness. The ultimate consequence would involve a degradation of that which distinguishes the human from the subhuman—namely, reason.

On the other hand, to punish men for saying or printing the truth with good motives and justifiable ends would be a violation not only of freedom, but again, of reason as well.

Turning to the second alternative, the problem was to construe certain restraints on freedom of speech and press so as not to be included under the category of an abridgment thereof. Two constructions are possible.

The first is this. Suppose that a state did not have a written constitution, that it was governed solely by statute and common law, either one or both of which provided for the punishment of defamatory and seditious libels. Now suppose that this state decided to adopt a written constitution, one including the following injunction: “The legislature shall make no law abridging freedom of speech or of the press.”

This injunction would not, of itself, render null and void all existing laws imposing restraints on freedom of expression. The proper method of interpreting such an injunction would be to determine, among other things, whether it was intended to remedy existing or antecedent complaints regarding restrictions on freedom of speech and press. A negative finding would then warrant the following conclusion: The constitutional injunction that “the legislature shall make no law abridging freedom of speech or of the press” means that the legislature shall make no law reducing the scope of freedom of speech and press enjoyed by the community at the time this injunction was constitutionally established.

Finally, the constitutional prohibition against abridgment of freedom of speech and press exempted persons only from previous as opposed to subsequent restraints. This is confirmed by James Wilson’s discussion of the subject at the Pennsylvania ratifying convention of 1787, where he said:

It has been asked, if a law should be made to punish libels? I presume it was not in the view of the honorable gentleman to say there is no such thing as a libel, or that the writers of such ought not to be punished. The idea of the liberty of the press, is not carried so far as this in any country. What is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character and property of the individual.

To require that newspapers, for example, be reviewed by a board of censors prior to publication is an abridgment of freedom of the press. To make them punishable in a court of law subsequent to the publication of false, malicious, and seditious materials is not an abridgment of freedom of the press.

Summing up the preceding discussion: The words “Congress shall make no law … abridging the freedom of speech, or of the press” should be construed so as to avoid necessary as opposed to contingent obstruction with the constitutionally enumerated powers of Congress and with other constitutionally prescribed purposes of government. This can be done only by delimiting the meaning of “freedom of speech and press” (so as to exclude, for example, obscenity), or by delimiting the meaning of what constitutes an “abridgment” of such freedom (for example, by distinguishing between previous and subsequent restraints).

Of course, all this is very academic. In the West, liberals have enacted “hate crimes” to stifle the freedom to portray a religion that fosters murderous hatred of “infidels.”

Nietzsche once said that the greatest enemies of liberty are liberals once they gain power. Having gained control of Congress, liberals want to stifle conservative “talk radio.” And having gained ascendancy in academia, liberals, though steeped in atheism, have become allies of a totalitarian religion.

by Prof. Paul Eidelberg, President of The Foundation for Constitutional Democracy

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