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August 22nd, 2017

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Free speech on the run

Wesley Pruden

By Wesley Pruden

Published Jan. 27, 2015

 Free speech on the run
Everybody's for free speech — until somebody says something he doesn't like. But the genius of the First Amendment is that it is so direct and plain that even a lawyer or a judge can understand it.

The amendment does not guarantee thoughtful speech, polite speech or even responsible speech. The Founding Fathers wanted to say only that speech must be free, unfettered and at liberty to flower. The guarantee is unique among nations, and it sounds so good that a lot of politicians in other nations pay it lip service but are aghast if their constituents want to try it at home.

The terrorist murders in the name of the Prophet at Charlie Hebdo and a kosher supermarket in Paris have assumed iconic status as examples of free speech abused, but France, the birthplace of Voltaire ("I do not agree with what you say but I will defend to the death your right to say it") is no bastion of free speech. French police have arrested more than 70 persons since the Charlie Hebdo for "defending" or "glorifying" terrorism. A lot of people claiming to be Charlie are imposters.

The most you can say for Britain is that our cousins are equal-opportunity abusers of free speech. The government has convicted a white supremacist for sending a threatening anti-Semitic "tweet" to a member of Parliament, a Muslim teenager for a Facebook posting that "all soldiers should die and go to hell, and a man for making anti-Muslim comments.

Denying the Holocaust is a crime in several countries, including France. Germans are free to say anything the government tells them it's OK to say. One of the points on which many of the religious folk of Europe — Jewish, Christian and Muslim — agree is that saying mean and offensive things about religion ought to be against the law. (the Muslims call it "insulting" religion, as if "belief" could be "insulted")

The Europeans have been wrong about a lot of things, which is why so many of them came here in the first place, and good for us that they did. But it's not just the Europeans with a conflicted view of free speech.

Some Democrats, stung by rejection by the voters, want to revise and tame speech, too. If persuasion won't work, maybe compulsion will. Sen. Charles Schumer of New York, unhappy with decisions of the Supreme Court, has proposed amending the Constitution to give the government the power and right to "regulate" political speech.

"The Supreme Court is trying to take this country back to the days of the robber barons, allowing dark money to flood our elections," he told a Senate committee last year. He wants the power "once and for all" to enable Congress to "regulate our system without the risk of [the rights] being eviscerated by a conservative Supreme Court." Somewhere, perhaps in a warehouse in Mississippi, there are hundreds of once-familiar "Impeach Earl Warren" bus-stop benches, put out by unhappy Southern segregationists. They're waiting in dusty storage. Mr. Schumer could amend the message with a can of paint and a dime-store paintbrush: "Impeach John Roberts" fits.

Another proposed revision of the First Amendment, this one by Tom Udall, the Democratic senator from New Mexico, would have given the states and the federal government the power to regulate the "raising and spending of money . . . to advance the fundamental principle of political equality for all." Like all such dreadful prescriptions, it's only medicine for our own good.

Laurence Tribe, the famous Harvard law professor who was once everybody's candidate for the Supreme Court, could join the Schumer paint-bucket brigade. He called amending the First Amendment "a particularly worthy enterprise" in an essay in Slate.com, "given that the composition of the [Supreme] Court prefigures little chance of a swift change in direction."

Only yesterday the First Amendment was the untouchable landmark of the law, the guiding principle that James Madison and the Founders bequeathed as the guarantee that the American democracy would always work. There could be no exceptions.

The Supreme Court held in 1969 that even inflammatory speech, even speech by the Ku Klux Klan advocating violence, is protected speech under the First Amendment unless the speech "is directed to inciting or producing imminent lawless and [a very important "and") is likely to incite or produce such action." Mere advocacy is protected speech.

"The ultimate good desired is better reached by free trade in ideas," wrote the famous justice Oliver Wendell Holmes. Persuasion always trumps compulsion. Embittered losers, take note. That includes you, Chuck Schumer.

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JWR contributor Wesley Pruden is editor emeritus of The Washington Times.

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