Henrietta Hay Column Aug. 16, 2009
First Amendment protects our most important right
Of all the amendments to the Constitution, I think the First Amendment is by far the most important. It allows anybody to make a fool out himself — or herself — including doctors and lawyers, truckers and housewives, professors and idiots (I was thinking of Rush Limbaugh) the left and the right. It is the one freedom which separates us from most of the rest of the world. It is the one which has made us strong.
But it has never been easy. There have been many examples of offensive speech through the years. It is to our great credit that we have maintained our support of the Constitution even under extremely difficult challenges.
Former University of Colorado professor, Ward Churchill, then chairman of the Ethnic Studies Department, wrote one of the more recent challenges.
He is the man who wrote an essay shortly after 9/11 in which he said “the technocrats of empire working in the World Trade Center” were “little Eichmanns,” a reference to Nazi Adolf Eichmann.
It is hard to believe that any presumably intelligent person, a college professor no less, could be so stupid and so insensitive as to make a statement like that immediately after 9/11. We were reeling from the tragedy that had left 3,000 people dead and their families and friends grieving.
So, does he have a right under the constitution to call the “technocrats of empire” working in the World Trade Center the equivalent of Nazis? Yes, legally he does.
But ... My friend the attorney says there is no free speech per se, even as there is no free lunch. There is a qualification. Freedom of speech always has consequences. If your speech pleases your listeners, the consequences are good. If your speech offends, the consequences may be very serious, but you had a right to say it.
The week after 9/11 by Pat Robertson took insensitive advantage of tragic deaths to attack those who don’t share his social views.
He said, “I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, and the ACLU, and People For the American Way, all of them who have tried to secularize America. I point the finger in their face and say ‘You helped make this happen.’ ”
Was this a threat to the Constitution? No.
And for years Rush Limbaugh has been calling me, along with thousands of other women, femi-Nazis. Illegal? No, just stupid.
In 1971, a 19-year-old California department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with “F*** THE DRAFT. STOP THE WAR.” The young man, Paul Cohen, was charged under a California statute that prohibits “maliciously and willfully disturbing the peace and quiet of any neighborhood or person by offensive conduct.” Cohen was found guilty and sentenced to 30 days in jail.
Did California’s statute, prohibiting the display of offensive messages such as “F*** the Draft,” violate freedom of expression as protected by the First Amendment? Yes.
In an opinion written by John Marshall Harlan, the Supreme Court reasoned that the expletive, while provocative, was not directed toward anyone. Besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Justice Harlan recognized that “one man’s vulgarity is another’s lyric.” In doing so, the court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).
The current battle over health care reform is bringing out language that is vulgar, hateful and often untrue.
But is it legal? Yes, so long as it does not go too far and incite someone to violence.
Offensive, even dangerous speech in the United States is tolerated. It is not tolerated in Iran.
The First Amendment is still our strength and our freedom.
John F. Kennedy wrote this in 1962: “We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is afraid of its people.”
We can only hope he would write it in 2009.