Free Speech: A Limitation on Government, a Tool of Responsible Citizenship

By Neal Lemery

When I have deep discussions with friends and family on issues near and dear to everyone at the table, I like to become reacquainted with the essential facts and the original source material. Recent heated social media postings about personal opinions, free speech, and our rights as citizens have led me to look again at the Constitution and the words carefully chosen over 200 years ago. The First Amendment to the U.S. Constitution says:

“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” (1789)

“Many consider this section of the Constitution the cornerstone of our democracy. Some scholars have argued that the foundation for all other freedoms are those guaranteeing free speech and a free press.

“The concept behind that view is that access to information by the public is the basis for a functioning democracy. James Madison, the fourth president of the United States, said it this way in 1822: ‘Knowledge will forever govern ignorance. And a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both.’

“What this means is that a free people must have full access to information about their government, and that they must be allowed to share this information with others. In practice, “the press,” or as we know it today, the news media, are the agents of the people in acquiring and distributing that information. The First Amendment guarantees access to information and guarantees the right to distribution information.” ACLU of Oregon website, https://www.aclu-or.org/sites/default/files/freespeech_full_background.pdf

Fifty years ago, the US Supreme Court held that the intent of the First Amendment was “to allow the media to examine and criticize public figures such as government officials, and that the only exception would be if there was a showing of actual malice or careless disregard of the truth on the part of the media.” ACLU, supra. (NY Times v Sullivan)

As we have dual citizenship (being citizens of the country and our state), we are also protected from governmental restrictions by Oregon’s Constitution.

“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

— Article 1, Section 8, Oregon Constitution (1859)

“[W]e have little trouble in concluding that the people who framed and adopted Article I, section 8, as part of the original Oregon Constitution intended to prohibit broadly any laws directed at restraining verbal or nonverbal expression of ideas of any kind.” State v. Ciancanelli
(Oregon Supreme Court, 2005)

These federal and state Constitutional provisions are essentially limitations on our governments from limiting our individual freedom of expression. One of the ideas from the American Revolution was to limit government regulation of personal opinions. Individuals and businesses can still restrict your expressions on their property and within their own businesses. My contracts with Facebook, my own website platform, and other social media are just that, contracts, with limiting terms and conditions. Those contracts give me access to public forums, but on the conditions the provider proscribes. Their platform; their rules. I’m a customer, a consumer of access to the media.

These Constitutional rights have very little to do with my relationship with the companies I have chosen to use to express my views on social media. After all, publishers of malicious libel and slander have legal liability. One example is the recent lawsuit by a voting machine manufacturer suing Fox News and a commentator for libel to the tune of over $1 billion.

If I want free speech (except if I am malicious and libel or slander someone or their business), and not risk censorship by the media, I can go stand on the street corner. Even there, it is against the law to incite a riot. And, as was held in one famous Supreme Court decision, I can’t falsely yell out “fire” in a crowded theatre.

The other side of the coin of having free speech is that I also have responsibility in how I express myself and what I have to say. That’s part of the duties of good citizenship and civic obligations. We are a community, and a democratic society functions when we act intelligently and advance the common good. Democracy can be messy but we’re in this together.

We have agreed to pay taxes to support public schools, roads, fire stations, and public utilities, because we have decided that educated kids, fire fighting, safe roads, and clean and dependable water are good things to have around. We follow the traffic laws, because, at the end of the day, we’ve been able to travel in an orderly and safe manner. All those good things only happen when we all follow the rules. The Founders of our country referred to those concepts as a social contract.

Like our other civic obligations, speaking our minds and being responsible for what comes out of our mouths and the viewpoints we express comes with obligations to carry out our citizenship duties in the spirit of advancing the common good and the welfare of the public.

I’m all for a rich and vigorous conversation and debate on the important issues of the day. Those engagements are frequent and sometimes range from enthusiastic to boisterous, thanks in part to the Bill of Rights. When we engage with each other, hopefully we all seek to benefit from the experience, and advance the common good. Improving the quality of our conversations is much like that popular saying, “a rising tide raises all boats.”

2/6/2021

Citizenship and Conversation in a Disjointed Time

By Neal Lemery

(Podcast)

In this pandemic year, our craving for “normal” pushes back against the new rules of social interaction. What lies ahead of us grows even murkier. Uncertainty is the new mantra of who we are as a society, and where we are going with our own out of sorts lives. Simple acts of normalcy such as going to school, shopping for groceries, dinner with friends, and a weekend getaway take on all the traits of unpredictability.

Nothing seems routine anymore. The old patterns of life now can be simply “paused”, the calendar becoming a mess of cross outs, erasures, and question marks.

Sound medical advice, scientific wisdom and evidence-based practices run the risk of being politicized in loud, partisan fashion. Wearing a mask at the grocery store now can be a political statement. Nuances and logical development of analysis are discarded if favor of “right vs wrong” and “us vs them” viewpoints. We don’t seem to be able to even agree to disagree or admit we need more information.

Serious discussions about racism and discrimination, the role of police, and how we look at history are now mixed into the swirl of our pandemic responses and thinking. Political rhetoric grows more heated and polarized. “Them” and “us”, “right” and “wrong”, “liberal” and “conservative” are becoming the short slogans that can fit on a baseball cap. Efforts to simplify and quickly label perspectives and opinions are pushing out the deep discussions on public policy and the rich stew of community discourse and public debate that are at the heart of a healthy democracy.

Instead, we are experiencing a “shoot from the hip” attitude, with no room for civilized conversation and thought. Being persuasive and convincing in one’s opinions and views is replaced by an angrily shouted slogan and no room for disagreement, however polite or thoughtful.

We are all hopefully looking for a sense of civility, order and normalcy in our lives. I find myself weighed down by all the “pausing” of social life, and the angry, strident rhetoric of public opinion. Sarcasm and rage, and downright nastiness and vitriol now seem to occupy center stage in public forums. That approach to our collective life is toxic and exhausting.

I should remember that, perhaps, I might be wrong in my views, or that the situation is more complex and requires more information than I have been willing to admit. Like any effective theologian, scientist, or teacher, I just might not have all the facts, and might not be considering other ways to look at an issue. I might not have all the answers. And, I might even be wrong.

Many turn to social media to air their own views or the rant of their favorite commentator of the day. In their role as a publisher and editor in the public forum, a significant number of Americans ignore their responsibility to be factual, to educate, and to add to thoughtful debate that will improve our society. Be a builder, not a destroyer. If you are going to be a journalist of sorts on the public stage, then act like a professional. It is a public trust.

We have “paused” the democratic ideal of thoughtfully listening to others. We aren’t doing a good job weighing the viewpoints of others, and striving to achieve a collective, informed response and thoughtful viewpoints. Instead, the quick opinion, shot from the hip, seasoned with sarcasm and hostility, dominates. Public conversations have turned into shouting matches. Snarky slogans and nasty put downs of others fill our screens and public interactions. We often forget that “conversation” means a respectful interplay and heartfelt communication.

Our freedoms of speech and expression are precious and should be cherished. And with freedom comes responsibility.

7/17/2020

We Are All Immigrants

We all came from somewhere else. Maybe not in this generation, but somewhere in the not too distant past, we came from somewhere else.

This week, my country celebrated its political beginnings, a time of rebellion and war, a time of rising up against an imperial, oppressive power, and going ahead on our own.

America was a different place in 1776, thirteen separate colonies. Slavery was an accepted economic reality, and times were hard. Only white men who owned property could vote, and earning a living meant hard physical labor and going without much of what we would think are necessities.

Back then, we welcomed immigrants: new blood, new energies, new ideas. We needed more farmers, more merchants, more people in the cultural melting pot we have come to know as America. And, the America today is a result of all of those waves of immigrants, and the optimism and challenges that brought our ancestors here for a new beginning.

On our nation’s birthday, just before my neighbors decided to shoot off their fireworks at dusk, a photo showed up on my phone. My friend had landed at an American airport, and he had just passed through immigration and customs.

The photo told the story: his face ablaze with the biggest smile. He held a paper stamped with the date, and the words “inspected”. It was official. He was now a documented resident of the USA, a big step to becoming a citizen.

Becoming a citizen in this country now is a challenging, difficult journey, far different than when my dad made the trip to the local courthouse, filled out a form, and quickly became “legalized”, a citizen.

My friend’s journey is longer, more convoluted. It involves a lot of expensive paperwork, and a flight to another country and back again. And, he’s only halfway done with the process, even though he came here when he was seven years old.

Now, years later, he’s a college student, and has a career, a marriage. He is finding his way, focused on a profession, giving back to his community, showing his younger siblings they, too, can live the American dream.

His story is my family’s story, too. This anniversary day of independence, of throwing off the oppression of an unjust government, the shackles of poverty and hopelessness, of coming to a new land and being able to work hard and make a new, better life for yourself and your family, is the American story.

It is my story, and now, it is my young friend’s story.

Some of my ancestors left the sweatshops of an English woolen mill, becoming farmers in their new land, working as farm laborers on an unforgiving Iowa farm in the Midwestern heat. They became citizens, raising a new generation of farmers, Americans.

They took the Oregon Trail, finding a new land, and their own farm, becoming homesteaders, new Oregonians. As a child, I heard my grandmother tell the stories of carving out a farm in the forest, a winter spent in a leaky shack with a canvas roof. The next summer, they built a cabin and a barn, herding their new cows for a week through the forest to their new farm.

After the barn and the cabin, they built a school, taking their hard earned money to hire a teacher and educate their kids. Those immigrants, those refugees from an English woolen mill, they built a new life in a new world.

My grandfather came here, too, yet another immigrant, fresh from a prisoner of war camp after the First World War. There was nothing for him where he had come from, except poverty and disease. Coming to American offered hope, opportunity, a new beginning. He, too, worked as a farm laborer, learning English after a long day, taking the steps to become a citizen.

On the other side of the family, there are other stories, of pulling up stakes and moving to a new land, the promise of education, the value of hard work and adjusting to challenges, the possibilities that came with America’s promise.

Looking back, I see that all my family were immigrants. Coming to America, making your life better, working hard, it was who we were, and who we are.

Looking around, I see that my town was built by the sweat and commitment of immigrants, newcomers who didn’t take opportunities for granted, but were willing to work and make this community their home.

American immigration isn’t just Ellis Island and the Statue of Liberty. Not eighty miles away from here, over 100,000 immigrants came to Oregon through the Knappton Quarantine Station on the Columbia River, from the 1880s to the 1920s. We are literally a nation of immigrants, refugees seeking a better life.

They came seeking what my friend wants: opportunity, freedom, a chance to be part of a great freedom-loving nation.

We celebrate the Fourth of July, and in doing so, we also celebrate our history of welcoming others, to make this nation even stronger, even more a land of opportunity.

My family all wanted the same thing: opportunity. They wanted justice, and freedom from violence and a dead-end, oppressive life. They wanted a chance to prove themselves, and make a better life for their kids. They were willing to work hard, and make sacrifices.

They built farms and schools, created communities, and raised their kids. They worked hard, and helped make this country strong and healthy, a place where the rule of law and individual rights are common values.

My friend wants that, too. He sees a bright future for himself and for his family here. He’s working hard, and wants to do his part in making America an even healthier, stronger place, a place where freedom and justice for all is just not a political slogan, but a deeply held belief, and an aspiration for all of us.

–Neal Lemery, July 6, 2016