Freedom of Speech... Motherfucker

Oh, I'm not supposed to do that, am I? Put such coarse language in an article title? But... I'm not going to be arrested for it. No one is going to enforce this particular social rule upon me under threat of force. This is partly due to a concept very deeply rooted in the United States called "freedom of speech".

As long as freedom of speech has been a concept, there have been debates about its boundaries. What if you say something is a lie for the purpose of harming another person's reputation? What if you say something for the purpose of inciting violence? If you say something you know is vastly unpopular, is that incitement? What if you say something in support of an action which is itself illegal, such as child pornography? Does that count?

Indeed, in the United State the Supreme Court has wrestled with these issues as long as our Constitution has been a document. Although the Court never ruled on freedom of speech until the 20th century, it has repeatedly upheld a higher standard of freedom than society at the time is generally comfortable with.

In invalidating the Child Pornography Protection Act of 1996, the Court wrote:

First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

Yes, this is a point that I think many will agree with. Yet, there are limits to what you are allowed to say or do in the name of free speech.

Not All Utterances Are Created Equal

There are several limits the Court has established to freedom of speech, but they can broadly be described as thus:

• Obscenity, which is speech with no redeeming cultural, social, artistic or scientific value and is offensive to the sensibilities of a community is not protected free speech.
• Speech which causes a clear and present danger of substantial evil that Congress or the States have a substantial interest in preventing.
•  Slanderous words which must be false, uttered with malice (or the intent to defame), articulated to the third person, and attacks an actionable aspect of that person which primarily have to do with the character of that person and their personal history.

But even with these restrictions, and these are very brief descriptions of the largest ones, the Court has held that it is best to err on the side of speech.

[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.

The general public is protected in speaking even when the content of the speech is advocating the use of force or violation of the law unless such speech is producing imminently lawless action. This means that as long as I am not, say, at the head of a giant mob, I can advocate burning down Federal buildings or spraying graffiti on police cars.

The Court of Public Opinion

There is one group, however, that is not really given the full protection of the First Amendment, and that is politicians. Politicians cannot enjoy free speech to the extent most others can because they are reliant on the approval of a large number of people. The speech for which the First Amendment is most necessary is that which is unpopular, but such speech can end the careers of politicians.

In reality this is a failing of our society. We are not interested in electing politicians to do a job, we are interested in picking the person we like the best. Such a process is... farcical.

So why write about this topic? Because we have a prime example on our hands over the last 24 hours.

Mitt Romney (R) giving an address about his attack

Mitt Romney, the Republican Nominee for President, attacked President Obama for "apologizing for our values" to the protesters which ended up killing four people in Libya, including a U.S. Ambassador. He said that such an apology, (in this case condemning the video which became the pretext), undermines Freedom of Speech and Freedom of Religion, two very closely held values of our country.

Now there are problems with this view, not the least of which is that the "apology" came before the protests started, and was issued by the Egyptian Embassy, not the President, but I think the most interesting thing about this is that Romney has stumbled upon a truth in the time since, albeit accidentally.

He does not have the luxury of making such statements whenever he pleases, because his speech must be protected not only by the Supreme Court of the United States, but also by the court of public opinion, and the public is much harsher.

One of the qualities we look for in a President is moderation. Not just in their positions and views, but also in how they conduct themselves. The reason for this is obvious: a President can say anything they want, but if they do not moderate what they say the consequences can stretch out across the entire country and lead to death, destruction, or financial loss for countless others.

In defending Freedom of Speech, Romney has accidentally highlighted why we as a society protect such speech: because radical speech and ideas can never come from those in power, even in democratic societies, and in order to move forward as a culture, we must depend on our citizens to push the edge of conversation while our politicians follow.

Romney saw this as an opportunity to lead our society in way that could help him appear Presidential. Instead, we saw someone who doesn't really understand the job he's applying for, or the people who he's trying to convince.