Freedom of Speech, Part II

by Attorney David M. Hnath

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
First Amendment to the Constitution of the United States (emphasis added)
No law shall ever be passed to curtail or restrain the liberty of speech or of the press.
Article 1, Section 5 of the Constitution of the State of Connecticut 1965

Freedom of speech, one of our most cherished and guarded rights as Americans, holds a "preferred position" in our courts. It is a right that demands that the highest form of scrutiny be applied in any situation which may attempt to restrict it.

Is freedom of speech absolute? Can we say anything we want whenever we want? In 1859, the libertarian John Stuart Mills wrote: "Acts of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavorable sentiments, and, when needful, by the active interference of mankind. The liberty of the individual must be thus far limited: he must not make himself a nuisance to other people." This is essentially the position of the United States Supreme Court has adopted. In Schenck v. United States, 249 U.S. 47 (1919), Justice Oliver Wendell Holmes wrote: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [The] question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to protect." (emphasis added)

A couple of months ago, I wrote of two newspaper articles. In one, a 14-year-old boy was allowed to continue to pray and lead prayer groups at lunch in his public high school. In the other, a panel of federal judges declared unconstitutional a law barring indecent words and images on the Internet, citing the First Amendment guarantee of free speech.

The first instance is clear -- the result there neither violates the First Amendment guarantee nor the "clear and present danger" test. Even though somewhat limited, a high school is a public forum, and suitable for the exercise of free speech. It is limited in that any speech which is disruptive to the educational process is prohibited, and rightly so. Clearly the lunch time prayer sessions did not interfere with the educational process, and the principal was right to back down from his opposition to the prayer time.

"Indecent words and images" presents an entirely different problem. Clearly pornography is not a protected activity, yet it proliferates throughout most communities. It's publication presents a "clear and present danger" in that it is shown to have a direct causal connection to many of the violent crimes committed today (see, for example, Ted Bundy).

First printed in The American Night Watch Newsletter, Volume IV, Part 9, September 1996.

Copyright 1999 David M. Hnath. All Rights Reserved.

The American Night Watch is a trademark of the Christian ministry of Sterling M. Durgy.

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This page was last updated October 22, 1999.