free speech | Neal Lemery

Published in the Tillamook County (Oregon) Pioneer March 9, 2021

by Neal Lemery

When it comes to opinions and ideas, we are both the producers and the consumers.

I’m always looking out for the latest idea, the most interesting cultural experience. “New stuff” takes many forms – local news, some new political development, updates on a friend’s family or business, not to mention a beautiful photo a talented photographer has posted on social media. The list of what piques my interest seems endless. I’m like the house cat with a ball of yarn or a catnip-filled toy.

Most of my interest comes with a new idea of how to look at the world and approaches to challenging problems. Finding a well-written new book, meeting with a good friend or joining in a group discussion gets my juices going. And if the new idea comes from me, I’m more than happy to “market” it to my friends and others who have the same interests.

Like everyone else in this age of social media and digitized information, I’m able to wear both the hat of the producer and and the consumer. The choice is mine. I’m the gatekeeper of my cultural experiences.

While some may bemoan the perceived censorship or manipulation of a snippet of our cultural offerings, each of us is still capable of finding the story, and choosing how we react, and what we do with the new knowledge. If someone wants to cancel my own cultural experience, to act as my censor, they face a daunting, if not impossible task.

I’m drawn to the deep discussion. The op ed page of a great newspaper is like honey in my tea, and I find a deep satisfaction in the well-thought argument, the well-researched point of view. I might even change my mind or have an intellectual growth spurt. The more diverse the opinion, the better. I love the mixing of curious minds.

My coffee table groans with a wide assortment of books and articles on a wide variety of topics. And, it is up to me, not some powerful media mogul, to decide what ideas I’m going to spend my time on. If I am going to be manipulated, what I consume is truly my own choice.

The idea of freedom of speech also includes both the freedom to listen and the responsibility to choose my materials wisely.

I am my own traffic cop in this hectic intersection of ideas, the melting pot of the great American conversation. How I respond to the ideas of others, as well as what I choose to put out into the world, is my choice. We traffic cops have responsibilities, with truth telling and well-reasoned viewpoints being the primary duties we all have to the community.

This marketplace of ideas is at the heart of the American experience. Innovative thoughts and new approaches have always brought about needed change, and has helped us improve our lives and the lives of future generations. The clash of ideas, the often heated discussions, provide the sparks that light the fires in our brains, and bring about a renewed, invigorated society.

If I fall to the toxic atmosphere of fear and intolerance, I’m cutting myself short, and denying myself access to the riches of the marketplace of ideas. I’m neglecting my own duties as the producer and the consumer, and I’m making the community conversation a mere shadow of what it can offer all of us.

Raging against an opinion or perspective that is not your own only serves to suffocate this marketplace, and limit the work of the marketplace in producing new thought and dynamic change. We need to learn to be better listeners. We also need to examine another viewpoint without the limits of our own fears and biases and be the seekers of truth and reason.

If I am the good listener, and an advocate of reason and truth seeking, at the end of the day I might have even learned something, and come closer to helping to solve a problem.

3/8/2021

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