Freedom of Speech

“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.”

That is the first amendment to the Constitution of the United States. To many, it means that we have total freedom of speech – to say whatever we want, however and whenever we desire. But is that true? Is it what the amendment’s authors intended?

How much free speech do we really have? The fact of the matter is that much speech is severely restricted while other speech is completely unfettered. And sometimes, the rules regulating what’s allowed and what isn’t don’t really make much sense.

Let’s look at some of the cases where free speech isn’t free at all.

    • Sedition – incitement of resistance to or insurrection against lawful authority – is a crime punishable by up to 20 years in prison1.
    • Conspiracy – an agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement’s goal – is a crime frequently assigned the same punishment as for the target offense whether or not the accused actually participated in the crime.
    • Inciting a riot2.
    • Disclosure of state secrets is a crime3.
    • Falsely yelling “FIRE” in a theater or other crowded gathering to create panic is a crime.
    • A person committing libel – a false, written defamatory statement – or slander – a false, oral defamatory statement, can be sued in civil court for any damages sustained by the victim.
    • Then there is the issue of “whistle blowing”. Does the First Amendment protect that? Unfortunately, most “whistle blowers” are punished (in spite of the so-called “whistle-blower” act) for truthfully exposing waste, fraud or abuse.

As we see, there are numerous abridgments to free speech. So, given that first amendment freedom of speech is not absolute, the question is, where do we draw the line?

Let’s look at a recent case now before the Maryland state court in Montgomery County. The former Director, CISA4 who was fired by the president for making the statement on Twitter “59 election security experts all agree, ‘in every case of which we are aware, these claims (of fraud) either have been unsubstantiated or are technically incoherent.'” Now this was a simple statement of fact, but it was punished by dismissal because it disputed the President’s claims. So what about Mr. Kreb’s freedom of speech? This was not slander, it was not libel, it violated no statute, but he was punished for making it. Is that not censorship which is a clear violation of the First Amendment?

Then there is the follow-up issue of the televised statement on Newsmax by Joseph diGenova (one of the President’s cadre of lawyers) about Mr. Krebs that “He should be drawn and quartered – taken out at dawn and shot.”5 Here, again, we have the issue of whether the First Amendment permits such speech. And what about the media that permits such speech to reach far and wide? If there are to be restrictions on the speech itself, should there not be restrictions on the media that broadcast such speech. If the speech itself is inflammatory, is not the media that broadcasts such speech adding fuel to the fire? These questions have major ramifications not just on the speakers, but on the media as well, especially social media where almost no restrictions apply. Where do we draw the line?

Don’t get me wrong. I am a strong supporter of freedom of information and an opponent of unwarranted secrecy and censorship. But I also oppose speech that is harmful to others or our government6. I also believe that First Amendment freedom of speech should not be absolute and there needs to be some restrictions on what is spoken and how it is conveyed. But the line needs to be carefully drawn as it is a slippery slope to censorship and abuse.

1 18 USC Chapter 115 (esp. 18 USC 2384)

2 18 USC 2101

3 This is true regardless of any real threat to national security. Unfortunately, much information is unnecessarily classified SECRET and the laws covering state secrets are often abused to hide embarrassing information from the public.

4 Department of Homeland Security, Cybersecurity and Infrastructure Security Agency

5 This televised statement resulted in numerous threats to Mr. Krebs, his family and property, and caused him to relocate for his security.

6 The issue, “What is truly harmful?” is also a sticky one as it is purely subjective. If one is simply “morally offended” or simply embarrassed , does that constitute harm?