The argument on the news shows was whether the Constitution's freedom of speech provision does (or should) protect the web site. After all, if I am legally free to walk through a courthouse in the 1960s wearing a T-shirt that says "*&%$ THE DRAFT", can I also proclaim abortion doctors murderers and even say I wish they were dead?
While I was pondering the law of free speech (and being the whipping boy of some of it in the local papers), I remembered what I had recently written on this web site.
My last "column" praised a Supreme Court justice for strictly interpreting the Constitution. That is, if the Constitution doesn't expressly address the issue at hand, it cannot be relied upon to decide the issue. For example, those who are against censuring the President (four weeks ago they were called Republicans, but now that group refers to Democrats) claim that the Constitution only allows for impeachment and nothing else. Thus, a censure resolution would be unconstitutional, they argue.
If the Constitution had always been "strictly construed", the verdict against the anti-abortion web site could not take place. Moreover, child pornography would be legal as well as, say, calling in a bomb threat to your local elementary school.
Let me explain.
The First Amendment to the Constitution states that "Congress shall make no law . . . abridging freedom of speech . . . . "
With all due respect to our founding fathers, there could not have been a worse selection of words. As I sat in a college political science course in 1980, I was immediately confused by the Amendment. It is absolute. Right? It doesn't add phrases such as "unless that speech involves child pornography" or "unless it constitutes a terroristic threat" or "unless it defames another person".
So how can the government enact a law that allows a web site to be sued for the words that appear on the site? Doesn't that abridge the speech of the webmaster? Some judges (most on the Supreme Court) have never subscribed to the "strict constructionist" point of view. Thus, the Freedom of Speech provision has been interpreted to mean that it is not absolute, and that some speech does have limits. Because of this, legislative bodies have been free to enact laws that restrict speech both criminally (i.e. the terroristic threat statute) and civilly (i.e. defamation laws).
As late as 1961, the concept that the Amendment's "no law" provision meant "no law" still had support. Justice Black expressed in a dissent that when any government agency abridged speech it was ''sufficient to render the action of the State unconstitutional'' . Further, he wrote that "I believe that the First Amendment's unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the [reviewing of this issue] that was to be done in this field.''
Rightly or wrongly, Justice Black's view did not prevail. The Court began enacting the "balancing test" and "the clear and present danger" test so that some speech is not protected under the Constitution. In doing so, they in effect amended the Constitution by interpreting the First Amendment to mean something that it clearly does not say. That is, "Congress shall make no law abridging freedom of speech unless there is a really good reason to do so". The end result is admirable, the method is questionable. If the Constitution is poorly written, the amendment process is probably the appropriate remedy.
But, then again, politics are involved in every facet of lives. Although I believe in being a strict constructionist, I'd hate to see the political fallout when a prospective Supreme Court justice is asked, "If we could roll back the clock 50 years, would you hold that yelling 'fire' in a movie theater is constitutionally protected speech under the First Amendment?" Any explanation after uttering "yes", regardless of its veracity, would fall on deaf ears.
Barry Green is the District Attorney for the 271st Judicial District.