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Freedom of Speech: Abridge to Nowhere

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Americans, known for their outspokenness on matters of politics, sports, American Idol contestants, and practically every other topic, would appear to treasure few things more highly than their freedom of speech. Why, it’s even right there in the Constitution: “Congress shall make no law  … abridging the freedom of speech.” In America, everyone is allowed to speak his mind on any subject without fear of government reprisals.

Well, not quite.

The U.S. government, like all governments throughout history, has always hated free speech. Just seven years after the First Amendment was ratified, Congress passed and John Adams signed the Sedition Act, which made it a crime to “write, print, utter or publish … any false, scandalous and malicious writing or writings against the government of the United States.” During World War I Congress, with Woodrow Wilson’s consent, passed the Espionage Act and yet another Sedition Act (the original having expired in 1801), again banning speech the government didn’t like. The Supreme Court upheld the conviction of Charles Schenck under the Espionage Act for printing leaflets opposing the draft. The opinion, authored by Justice Oliver Wendell Holmes Jr., contained the famous dictum that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

But that was then and this is now, one might argue: America has long since abandoned such heavy-handed infringements on free speech.

In fact, free speech is under far greater assault today than ever before. The earlier laws, bad as they were, at least only restricted speech concerning the government. Today there are countless laws and regulations restricting what one may say and mandating what one must say on practically every topic under the sun.

Consider insider-trading laws. These laws prohibit those with “inside” knowledge of a particular business or market both from acting on that knowledge and from conveying that knowledge to any non-insiders. Even employees of a company must be kept in the dark, to a certain degree, about how the business is faring out of fear that they might tell others what they heard or personally profit from such information. These laws have also been used to prevent persons from publishing newsletters with investment advice. “To the extent the [Securities and Exchange Commission] prevents persons from speaking, or threatens to punish them for speaking, or tells them how to speak or what to say, it places a chilling effect on the right of free speech,” Robert W. McGee and Walter E. Block wrote in the Northern Illinois University Law Review.

Commercial speech

Employers are not permitted to ask a variety of questions during job interviews. (For details see http://bit.ly/135scBe.) They may not ask whether a prospective employee is a U.S. citizen, what his religion or other social associations are, how old he is, whether he is married or a parent, how tall he is, or even whether he lives close enough to the office to be able to commute. How’s that for free speech?

The Federal Communications Commission possesses enormous power when it comes to free expression, whether in the form of spoken words or of images. For nearly four decades the FCC enforced the Fairness Doctrine, which mandated that if a radio or television station presented one side of an argument, it had to offer representatives of the other side time to present their case as well. The predictable result was that stations simply avoided broadcasting discussions of anything of real importance. The Fairness Doctrine was eliminated in 1987; the next year Rush Limbaugh took his show nationwide, and talk radio exploded.

The FCC fined CBS $550,000 for the infamous Super Bowl XXXVIII “wardrobe malfunction” that ever so briefly exposed Janet Jackson’s breast to millions of viewers. (The fine was later voided by a federal court.) It has also, in recent years, levied hefty fines for “fleeting expletives” on TV — a policy the Supreme Court has upheld as long as the FCC meets certain procedural criteria. In addition, the FCC wields the ultimate power over free speech on the airwaves: revoking a radio or TV station’s license for broadcasting things the government doesn’t like.

The Food and Drug Administration dictates what food and drug manufacturers may say about their products. Prior to the early 1970s, food manufacturers were prohibited from including nutrition information on product packaging; since 1990, however, such information has been mandatory, with the FDA assuming control over the form and content of it. Claims that vitamins and other supplements have health benefits were long forbidden on packaging, though they are now permitted as long as they state that the FDA has not approved them. Food manufacturers, on the other hand, are still hounded by the FDA if they dare to claim that their products have specific health benefits that the bureaucrats have not approved, as walnut distributors found out a few years ago when the agency threatened to force their products off the market because the packaging stated that the fatty acids in walnuts help reduce the risk of heart disease and certain types of cancer.

Speaking (or, rather, not speaking under penalty of law) of product claims, the Federal Trade Commission has reams of regulations governing what advertisers may, may not, or must say about what they have to sell.

Fair-housing laws prohibit real- estate agents from serving their clients effectively. Those laws forbid agents to tell prospective homebuyers about neighborhood characteristics, such as demographic makeup, crime statistics, school-district quality, and nearby houses of worship — even when asked about those things by the prospective buyer. (See details at http://bit.ly/135tQCZ.)

Political speech

Speaking out against the government isn’t exactly allowed to flourish these days, either. The Obama administration has ruthlessly prosecuted government whistleblowers under the 1917 Espionage Act, even when those persons were informing the public of rather mundane things such as wasted taxpayer dollars. Pvt. Bradley Manning (who now wishes to be known as Chelsea Manning) was subjected to brutal detention for supplying government secrets to WikiLeaks and faces 35 years in prison. And those the administration hasn’t prosecuted, it has often persecuted — firing whistleblowers or their spouses who work for the government, shunting them off into meaningless positions, and otherwise harassing and threatening them.

One needn’t be exposing government wrongdoing from within for his speech rights to be curtailed, either. During the George W. Bush administration, protesters were often cordoned off into “free-speech zones” far away from where Bush would be appearing so he wouldn’t have to see or hear them. Barack Obama went him one better by signing the Federal Restricted Buildings and Grounds Improvement Act of 2011, which essentially makes it a crime to be in the same location as a federal official unless one is a sycophantic bootlicker. John Whitehead, president of the Rutherford Institute, put it this way in an interview with WND.com:

A person eating in a diner while a presidential candidate is trying to score political points with the locals could be arrested if government agents determine that he is acting “disorderly.” Mind you, depending on who’s making the assessment, anything can be considered disorderly, including someone exercising his right to free speech by muttering to himself about a government official. And if that person happens to have a pocketknife or nail clippers in his possession (or any other innocuous item that could be interpreted by the police as “dangerous”), he could face up to 10 years in prison.

Add to that the fact that the president wields the power to imprison, torture, or even assassinate people, including U.S. citizens, whom he deems to be threats, and it’s a wonder anyone dares to criticize the government at all.

With all those restrictions on speech — and many more that could be adduced if time and space permitted — it is clear that Americans do not live in a society that prizes freedom of speech as highly as the First Amendment would seem to indicate. Indeed, the United States may well be approaching the point where, as is often said of Germany, “everything is forbidden except that which is permitted,” and not just in matters of speech. If that happens, Americans will have very little remaining freedom of which to speak.

This article was originally published in the November 2013 edition of Future of Freedom.

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    Michael Tennant is a software developer and freelance writer.