The Elephant in the Room

As one of very few conservative Republican columnists in academia, most will expect this column to function as a review of a verifiably bad year for conservatives. We failed to retake the presidency, failed to retake the Senate, lost part of the majority in the House of Representatives, and lost important battles over the budget and spending, all in part due to the party’s seeming inability to respond to the American people. On that note, most would expect this column as a sort of reset: Let the summer take hold and farewell until then.

But while writing, I could not think of this column as a farewell, but instead, as more of a placeholder. The day for farewells will come eventually, hopefully a few years from now. Instead, this column will bridge a gap. I will return to writing in the fall, but as this is the final issue of The Observer for the next few months, I wanted to take a moment to explore a problem that has been bothering me recently.

The problem is free speech, and the myriad of ways we define free speech through politicians, the judiciary, and the classroom. Nearly all countries recognize the importance and fundamental nature of the freedom of speech; most have codified it within their constitutions. Several others have acknowledged the freedom through court precedent in a common law system. However, others still have refused to recognize the fundamental right to free and open discourse; typical wrongdoers like Iran and North Korea are among those in this list.

Of course the United States recognizes a right to free speech, and the promise of such is repeated by self-proclaimed patriots around the country. We enshrine this right in the First Amendment to the U.S. Constitution, the first article of our Bill of Rights, where it is written, “Congress shall make no law…abridging the freedom of speech, or of the press.”

In 14 words, we state our continued loyalty to the free flow of ideas, the free expression of perhaps unpopular opinion, and the freedom to say what we desire. And we reaffirm our allegiance to these principles each time we say the Pledge of Allegiance or invoke our ability to criticize our leaders.

The U.S. differs from most countries in that we did not qualify our freedom, but simply stated that “Congress shall make no law” curtailing speech. Stealing a phrase from U.S. Supreme Court Justice Hugo Black, “No law means no law.” He continued that the First Amendment is “wholly ‘beyond the reach’ of federal power to abridge.”

This view of First Amendment absolutism never garnered a majority of the U.S. Supreme Court, but Justice Black as well as compatriot William Douglas continued to espouse “literalist” views on the freedom of speech. It is to this view of uninhibited speech and unhampered discourse that I ascribe.

While the Court carved out exceptions to the constitutionally guaranteed freedom of speech in Scheck v. US (1919), Sacher v. US (1952), and Brandenburg v. Ohio (1969) the American public watched as free speech rights were curtailed in the name of public safety, an ill-informed decision that remains good law today.

Meanwhile Black and Douglas voiced their strenuous opinions in defiance of the Court, to no avail. Lack of public outcry over this unconstitutional abridgement of rights left the Court more able to curtail rights further in cases dealing with erotic material – FCC v. Pacifica (1978) – and symbolic speech – Virginia v. Black (2003).

Even with these divisions between so-called protected and unprotected speech, the Court’s doctrine as to deciding these divisions has been circuitous at best, leading many, myself included, to question the veracity and jurisprudence behind many of these decisions. A question asking no more than “Can someone stop me from saying something when they don’t like what I’m saying?” requires a very involved answer when it should instead consist of one word – no.

If the same destruction of our constitutionally guaranteed liberties were conducted today, the outrage would be enormous— and it has occurred. The rights to privacy and due process guaranteed by the Constitution and verified by the Supreme Court have been under assault by government actions like the Patriot Act, National Defense Authorization Act (NDAA), and drone strikes… or at least some people say this. And these curtailments have led to massive protests, most recently culminating in a 13-hour filibuster by Senator Rand Paul of Kentucky against the government’s perceived indifference to cutting off due process.

If the systematic destruction of the freedom of speech could be undertaken today rather than 50 years ago, one can imagine the outcry being much the same. Protests would have occurred across the country. Politicians (read statesmen) would have lined up on the Senate floor to decry the possibility that constitutional rights could be limited as they had been. Hopefully the message would have fallen on receptive ears and ensured the continuation of our rights. And we would be better for it.

Andrew Breland is a sophomore planning to triple major in political science, English, and History. At CWRU, Andrew serves as the Vice President of the Case College Republicans and the treasurer for the Case Western Mock Trial Team. After graduation, Andrew plans to attend law school and pursue a career as a civil litigation attorney specializing in Tort defense.