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Protected Speech
By Mark Oaks
Feb 5, 2005 - 9:08:00 PM

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When the Constitution was in the process of ratification, the debate over a bill of rights was heated. The Federalists, led by James Madison, wanted a strong central government in order to strengthen the country's economic status. One of the Anti-Federalists' main proponents, George Mason, was afraid that such a strong central government would trample the rights of the people. The Constitutional Convention in Philadelphia adopted the Constitution without a bill of rights. Five of the nine states needed for ratification easily approved the Constitution. However, the remaining states only approved ratification on the promise of a bill of rights.

George Mason had been concerned that the new Constitution, sans a bill of rights, would stifle individual rights. He even called for a new convention to reconsider the situation. His motion did not pass. James Madison did not initially believe that a bill of rights was necessary, but he was eventually convinced of the need. Once the new Congress was in session, Representative Madison tirelessly labored for the adoption of seventeen amendments outlining the rights of individuals. The Senate passed only twelve of them and sent them to the states for ratification. The states ratified only ten of the twelve. These became the Bill of Rights we now have in our Constitution.

The idea of the Bill of Rights was protection of individuals from the oppressions of government. The Bill of Rights does just that. It outlines the specific rights of individuals while specifically limiting the power of government over the citizens. Briefly stated these are the rights and limits preserved by the Bill of Rights:

  • Freedom of religion
  • Freedom of speech
  • Freedom of the press
  • Freedom to assemble
  • Freedom to petition the government
  • Freedom to bear arms
  • Protection from quartering soldiers
  • Protection from unreasonable search and seizure
  • Freedom from double jeopardy
  • Right to a speedy trial
  • Right to face an accuser
  • Protection against self incrimination
  • Right to trial by jury
  • Protection from excessive bails and fines
  • Protection from cruel and unusual punishment

I specifically wish to address freedom of speech. The First Amendment explicit that deals with free speech reads, "[Congress shall make no law] abridging the freedom of speech…" Originally, freedom of speech was applied mainly to the printed word. In fact, in the early days of the United Sates, authors could be and were held liable for any harmful effects their writings might produce. Since the mid twentieth century, however, almost all speech has been protected. That includes deeply offensive speech. All manner of political speech, even the most caustic imaginable, is protected. Freedom of speech, as construed by the courts, now protects almost all speech, including the basest gutter language, the most deeply offensive speech, and pornographic expression.

To get an idea of the thinking prevalent at the time of the adoption of the Bill of rights, we need to look at what Congress originally debated and what was eventually sent to the States for ratification. Madison's original bill read, "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." The wording sent to the Senate was "The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed." The Senate passed version read, "That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances." The final version, agreed upon in conference, was the wording we see in our Bill of Rights today. It is, "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."

This lets us understand the prevailing sentiment at the time concerning freedom of speech. The founders believed that citizens should be able to speak, write, or publish their opinions as they saw fit. The only restrictions would be that which would deprive another of his basic rights, or cause another to be in danger, or the speech was of criminal objective. That was the intent of the common law and was the practice of the courts in the years following the adoption of the Bill of Rights.

British common law considered free speech to be speech that is not unethical, immoral, or likely to cause harmful effects of others or on society. This common law existed long before the founding of the United States. In the past, even though free speech existed, there were quite a few types of speech not protected. Today, there is very little prohibited expression. Most people have the right to say anything at all as long as it does not harm others or society. That has been the standard in the United States since before World War II.

Yet, even in the years before WW II, standards on speech were enforced. Since the 1960's most standards on speech have been erased. One may stand on a street corner and say anything he wants, no matter how coarse, no matter how foul, no matter how offensive, and come to no legal harm. The speech in movies, television, periodicals, novels, etc. has deteriorated far below standards once enforced. Artists may perform any stunt they wish including women doing unconscionable sexual acts on stage in the name of their art. The infamous crucifix in a jar of urine is an example of how even the vilest and most offensive things may be considered protected free speech.

While coarse, vile and outrageously offensive things are considered free speech, there seems to be a move to repress what used to be legitimately protected free speech. For example, the group known as the Philadelphia 11 were singing hymns and reading quotes from the Bible on a public street in Philadelphia while a gay pride festival was underway. They were arrested for doing so. This same city hosted the Constitutional Convention in 1787. I quote from the American Family Association website:

Five out of the eleven were ordered on Tuesday, December 14 to stand trial because they were seen quoting scripture on a video…The charges include three felony (criminal conspiracy, ethnic intimidation, and riot) and five misdemeanor charges. If convicted, they could face up to 47 years in prison! The City of Philadelphia has labeled the Bible hate speech and called Bible verses "fighting words."

Activists at the event very stridently attempted to stop the Christians from speaking the Gospel using bullying, intimidation, and "in your face" tactics. The activists were disorderly in this attempt, yet the police did nothing to stop them. However, the police arrested the Christians. Video shot at the scene shows the Christians acting peacefully, obeying the police and not retaliating against the gay activists. The only thing they did was to preach the Gospel, sing hymns, and read the Bible. The government is censuring these men and women who were acting peacefully while practicing their right to free speech. This same government allows homosexual activists to be disorderly and intimidating in a public setting.

I stated earlier that all sorts of vile, coarse, and offensive expression is protected free speech. Yet those who preach the Gospel or read the Bible in public no longer have the same free speech protections. Freedom of speech has expanded in the past fifty or so years to include almost any expression whatever. Nevertheless, even with such expansive views on free speech, there is one group of people not afforded the same freedom of speech as all other groups. That group is evangelical Christians.

If you wish to graphically show the external female reproductive organ in public, simply attach images of it to a picture of the Virgin Mary and voilá, you have art that is protected speech. If you wish to participate in overtly sexual acts in public, become a homosexual and march in a gay pride parade and such activity is protected expression (it is interesting to note that heterosexual couples engaged in these same acts in public would be arrested for indecency). Smear elephant dung on a picture of the Virgin Mary and you have protected speech. Spread your own fecal matter on a canvas, paint around it, encase it in polyurethane, and display it in public and you have protected speech. Exhibit likenesses of Santa Claus, the Pope, several nuns and Fidel Castro in the process of defecating and you have protected speech (in this case paid for by the taxpayers in California).

Sing a hymn, pray, or read the Bible in public and you are subject to arrest for disorderly conduct, conspiracy, intimidation, and inciting a riot. This is wisdom turned upside down. The Bible calls it corrupted wisdom ("thou hast corrupted thy wisdom"—Ezekiel 28:17). Freedom of speech, once the bulwark of society, has become as a sounding brass and a tinkling cymbal. It makes a great sound, yet it is without substance. Prurient interests lead the bulk of protected speech, yet those very interests are dismantling our society. The formerly protected speech that is now a public enemy once had the value of edifying our society.

Today, "whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report," are no longer acceptable in polite society. Surely, just the opposite of those things is now agreeable. It seems that the Great Experiment is over, with equivocal results.

And yet, "The harvest truly is plenteous, but the labourers are few; Pray ye therefore the Lord of the harvest, that he will send forth labourers into his harvest." Just as surely, there is still hope.

Copyright © 2005, Mark Oaks. All rights reserved.

© Copyright 2002-2013 by Magic City Morning Star

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