“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.”

—First Amendment of the Constitution

Once upon a time, our civil liberties as enumerated in the Bill of Rights were like the plumbing under the house: necessary underpinnings of our existance, but not really something to which we gave a lot of thought. If something seemed broken, we called in the “experts” and trusted them to deal with the problem appropriately, without the necessity of ever getting our own hands dirty. Then our circumstances changed. The rapid growth of the Internet, combined with the repercussions of a terrorist attack on our soil, threw many of us into a tangible awareness of our rights and the realization that if we didn’t learn a little about how to protect and maintain them ourselves we were going to wind up, well, knee deep in sewage. For the last six years, there has been increasing awareness and involvement, and looking around the web and at our own government it is clear that lines which were once nearly invisible are being etched deeply into the sand. On some level, we all know that the next battle to be fought on our soil will not be one of “us” fighting “the terrorists”. It will be us fighting for which version of ourselves we want to become.

The Portents

Sifting through the news of the last year, it is clear that some dominant themes are emerging. Assumptions long held by the common man that his freedoms were guaranteed in the United States are being challenged. The media has been informed that its right to confidentiality is conditional. Protestors have been informed that they must protest in “Free Speech Zones“, well away from public view. Bloggers are being arrested and imprisoned for asserting their First Amendment rights. Kids are being turned over to the cops for creative writing essays. Disgruntled consumers are running to the media to complain about the words on their coffee cups. The Christians are worried that their right to express their religious views are being curtailed, folks are being kicked out of airports for having Arabic slogans on their t-shirts, and allowing their users to post a key on their website which can be used to override copy protections on HD DVD’s. Verizon is claiming it can hand over client information to the government on its free speech grounds. Joseph Frederick is still waiting to hear whether it is allowed under the Constitution for him to hold a sign stating “Bong Hits 4 Jesus”. The list goes on and on.

Coming Soon To A Court Near You

Not all of the incidents touching our First Amendment freedoms will make their way to court. Many of them are complaints brought by individual citizens to public attention just to blow off steam. Some are a bright flash in the pan, to be settled quietly out of court later on. But the sheer numbers, and the steadily building awareness of the questions they engender, along with our government continuing to declare its intent to monitor every potential venue for the point where First Amendment rights become “criminal” virtually ensures a showdown.

This is hardly the first time our government has taken steps to censor us for our own protection. The limits of personal freedom are most strenuously challenged in times of national turmoil. Emma Goldman spent time in jail for urging protesters to take to the streets in 1893, and eventually was deported to Russia for criticizing the United States’ involvement in WWI. National unrest over our role in that war led to the Espionage and Sedition Acts of 1917 and 1918, at the urging of President Wilson who feared that widespread dissent would damage the war effort (the act was repealed in 1921). The generation reaching maturity in the 1950’s was called “The Silent Generation”, largely due to fear of reprisal for speaking their mind in McCarthy’s America. In 1927, the case of Whitney v. California ruled that the government was within its Constitutional bounds to punish speech which was “inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow”. This, however was overruled in 1969 by Brandenburg v. Ohio, which declared that free speech, even so far as an abstract incitement to violence or crime, was Constitutionally protected. This decision remains a standard of free speech parameters to this day.

The history of free speech in America is demonstrably a long tug of war between those who believe in the necessity for each citizen to be able to freely speak their mind (no matter how unsavoury their ideas) in order to maintain an effective democracy, and those who believe that the expression of critical or revolutionary ideas will erode the stability and security of the nation. The arguments against freedom of speech are nothing new…they have been hauled out in every era under the same justifications. Those who would reach into history for precendent have much from which to draw. Dissent has been quelched under the guise of being damaging to war efforts. Peaceful protestors have been arrested for disturbing the peace. Organizations based on revolutionary or unpopular ideas have been infiltrated and undermined, Religions have fought for their right to be heard, and been fought against with equal vigor. We have named one scapegoat after another, and tried to dominate or expunge their culture. And none of this is unique to the United States, in the past or present. Every nation which has ostensibly recognized the right of its citizens to free speech has also swung on the pendulum, fearing the consequences and debating when enough is too much.

What makes our current dilemma different is the ease and availibility of communication. Knowledge of new laws or awareness of illegal clamp downs on free speech shoot around the world on the gleeful backs of electrons, drawing responses not only from those close to the victims, but from those removed by space, time, and culture. Despite attempts to monitor and limit the communication of ideas and beliefs, they leak through and are passed around. The ordinary people of the world are face to face with the world of ideas, the notion of limitation of their access has direct relevance. The highly personal nature of the conflict turns stalwart conformists into rebels, soccer mom’s into subversives, and even government servants into traitors to their brethren. No matter who we are in our daily lives, there is a story out there somewhere which reminds us that this could happen to us. That person in handcuffs could be us. Suddenly, we care.

The Losing Battle

On the other side of the debate rest the public servants and loyal citizens who truly believe that some ideas are dangerous, chipping away at our solidarity and security. In trying to create the safest environment possible for ourselves and our children, they feel that allowing complete freedom of expression opens the doorway to violence, immorality, and uncertainty. They argue that there are some concepts which we can all agree need to be buried for our own safety. That some ideas or statements are damaging to others, and that therefore such ideas must never be expressed. What they neglect to recognize is that in denying the right to express such ideas, the ideas do not themselves magically disappear. They are simply spoken softly or held within where they fester, creating a climate of distrust both of ourselves and each other. Limiting speech is limiting the free exchange of ideas, and the outlawed ideas themselves become dangerous. You cannot know the true beliefs of another, and so everyone is a potential threat. Everyone is suspect. The climate of distrust thus created is inherently unstable, and the disintegration of our countries will come as the citizens turn against each other in fear.

With the increasing access to the Internet and phone service, however, this is a moot point. Were we to go so far as to assume the potential for governmental technology reaching a point where all communications can be monitored, there still remains a limited tolerance for arresting and holding an ever-increasing portion of the population. Even at our current point in time, the simple fact that the United States has incarcerated the largest percentage of its population of any nation in the world is enough to make many of us view that system with unease and suspicion. If we were to reach a point where everyone had loved ones in jail for crimimal expression of ideas, we would pitch headlong into revolution faster than you can say “Wonderbread”. Again, the matter of direct relevance turns the theoretically palatable into the intolerable. The government of every nation is uncomfortably aware that there are more of “us” than there are of “them”.

The inevitable ultimate failure of attempts to limit free speech does not absolve us of the obligation to be vigilant now in defense of our rights. There is a long path we could travel before reaching the apex of this swing, and no one of us should ever have to face imprisonment for speaking our mind. We must stand steadfastly behind not only those with whom we agree, but also behind those whose statements are abominable to us. In our personal interactions, we will argue vehemently over the merit of any idea, but in a court of law we must hold to principle, recognizing that if we choose to relent we have no control over the power to sort the “acceptable” from the “unacceptable” ideas. We have an obligation to inform our children of their rights, to help them fight for them, and to stay informed and fight for our own. Every small decision made, whether in a courtroom or a classroom or our living room, has a bearing on the future we are creating together. Now is the time to consider what future that will be.