Blog # 103 UNCONTROLLED SPEECH

Speaking your mind without fear of governmental sanction is one of the commendable attributes of being an American. This is to be contrasted with residing in a country where “prior restraint,” or, censorship, is still practiced. In this country, censorship is regarded as a feature of the dim past, practiced by earlier, less enlightened societies. Our nation’s founders, and their contemporary political philosophers of note, believed that the free exchange of divergent ideas within an informed citizenry was essential to the success of democratic government.

The U.S. Constitution, in its “Bill of Rights” (Federal) and its 14th Amendment (States) prohibits government interference with speech and the press; the free exercise of these rights are virtually unlimited, with the proviso that they do not cause injury. The usual illustration of this principle is the proscription against falsely crying “fire” in a crowded theater, which could lead to panic and injury. Indeed, unless a realistic potential for injury is clearly proven, a statement is fully protected; this is so regardless of whether the statement is within the societal mainstream of thought or not. It is a firm foundational belief that the culture of restraint of speech or of the dissemination of information is an attribute of dictatorship.

Officially repressed speech, in any form, is illegal and unconstitutional; books, articles, plays and other expressions may be looked upon with disfavor and even religiously banned, however, such assessments may not be enforced legally regardless of content. Restraints based upon “national security” may require court action to test the purported validity and necessity of such limitation.

Defamatory statements, “published” (i.e., communicated publicly) and causing injury to reputation or otherwise, are legally addressable by civil litigation seeking money damages from the alleged offender; the government is in no way involved.

The First Amendment also protects pornography, unless the same crosses the judicially determined line of “obscenity” which today includes, child pornography and works which are judicially found to be both “patently offensive” and “without redeeming value.” The celebrated literary icon,” Ulysses,” by James Joyce, was determined to be “obscene” and banned in the U.S. from publication and sale for several years. It is observed that the determination as to “obscenity” has always been subject to challenge and is applied in accordance with the evolving societal standards as exist at the time of such challenge.

We are particularly distressed and disappointed (often enraged) by those individuals who piously arrogate to themselves the missionary role and duty of protector of societal morality. These, reductionist and insular “chicken inspectors” seek to impose their own personal beliefs and standards on others. Their neurotic self-image, as possessing an intelligence especially capable of the discernment of the intrinsic nature of offensive and inoffensive, is no less than delusional.

Several years ago, we were present at a well- attended party, consisting of a heterogeneous group of guests, apparently, the business associates of the host and hostess. A stern looking, well dressed lady seemed to be sermonizing as to the moral necessity for government to oversee morality and prohibit “scandalous and lascivious” material (as she put it). There was a modest amount of contention on the subject, but we did not choose to join this discussion in consideration of the host and hostess, and so merely continued to quietly enjoy our drink. The stern self-appointed missionary of morality, apparently misinterpreting our silence as an indication of endorsement of her point of view, approached us and confidently continued her diatribe, now directing her energetic remarks to us, probably in full expectation of our acquiescent support. Instead of controverting her, we merely offered to get her a drink and a canape. She, in bitter disappointment at our lack of response, exclaimed, loudly: “Oh, you don’t care, do you, well, how would you like it if they allowed sex in the movies?” To which, unfortunately, we could not resist the reply: “Never tried it, but it might work, if the seats don’t fold up on you.”

You can no doubt, imagine her (dramatic) response.

 

-p.

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plinyblogcom

Retired from the practice of law'; former Editor in Chief of Law Review; Phi Beta Kappa; Poet. Literature Student and enthusiast.

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