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We hear it in the news all the time these days:

  • A publisher is sued because somebody buys his book or magazine and then perpetrates some evil act that it mentions. His lawyer says We've got a good First Amendment case.
  • A person is arrested for burning an American flag in protest[1] of his government's action. His lawyer says We've got a good First Amendment case.
  • A business is closed down because the service it provided was the display of bare breasts to people who enjoyed seeing them. The proprietor's lawyer says: We've got a good First Amendment case.

Almost all references to the First Amendment are referring particularly to the Free Speech clause thereof, and the defendants in cases like the above are always claiming that the action in dispute is some form of speech. As the cases become less like my first example and more akin to the third, people more and more see the ridiculousness of such a claim.

While the language in the Bill of Some Rights definitely should be construed liberally[2], it disturbs me to see that people try to argue that whatever they are doing is speech so as to claim that the First Amendment protects their right to do it. There are two reasons for this, both relating to the ongoing disappearance from our cultural consciousness of the special nature of the United States of America, and the apparent ease with which we humans adopt a statist mindset.

First, people often think that it is necessary to find a justification for an action within the codex of their government. The repudiation of this concept is one of the great principles behind our Constitution and other founding documents. It is sometimes said that the difference between an oppressive society and a free one is the difference between the philosophies That which is not allowed is forbidden and That which is not forbidden is allowed. The former describes the operation of most governments throughout history; the United States were supposed to operate under the latter. Thus, a person should rather be looking for a statement that he cannot perform thus and such an action, or that the state has explicitly been given the authority to deny him that privilege. This is the essence of the tenth amendment to the U.S. Constitution.

Second, they say that they have a right because the Constitution, or the nth amendment thereto, gives it to them. This is another misconception that would have Jefferson, Madison, et al, spinning in their graves, because of their contention that the rights of men come from their Creator and not from their ruler du jour. This is why the amendments comprising the Bill of Rights do not say the people have the right to, but rather, the right of the people shall not be infringed or the right of the people shall not be violated — the right is there already, and the supreme law of the land is acknowledging that.


[1] Or, if the esteemed members of our Congresses of late have their way, for desecrating it, meaning wearing it on clothing, embroidering it on a pillow, making a Christmas tree ornament in its likeness, or whatever else the far-right self-proclaimed right thinkers of the day don't like.

[2] Fortunately, I think it's been a while since anyone tried to claim that ideas transmitted through a new medium were not protected speech because the Founding Fathers didn't know about radio, television, the World Wide Web, skywriting, steganography, et cetera ad nauseam. Speech is the expression of thought, regardless of medium.

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