Let’s Temper “the Constitution” with Common Sense
The fact that I became an American citizen through choice and not through the accident of birth should tell you that I hold the U.S. Constitution in very high regard. But the way in which the Constitution is being interpreted today leaves me gravely concerned.
Whatever happened to common sense?
As a reporter and editor, I reveled in the protection of “free speech” the Constitution affords. But I tried to temper this freedom with responsibility. And I was not alone. Most editors in my time tried to use common sense in interpreting their First Amendment freedoms. The media did not normally publish the names of rape victims, for example.
Sadly, in today’s media, the most inflammatory charges and counter-charges are bruited about – apparently without any attempt at substantiation or any thought of the likely consequences.
This may be protected “free speech,” but it is definitely not responsible.
The courts have also taken an extremely generous view of the “free speech” amendment. Justice Oliver Wendell Holmes quite reasonably ruled that you are not protected when you “falsely shout fire” in a crowded theater, but the ruling based on this interpretation has not been upheld by subsequent courts. In ruling against the distribution of anti-draft fliers during World War I, Holmes wrote:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
Holmes’ ruling was rejected in Brandenburg v. Ohio, when the justices held that government cannot punish inflammatory speech unless it is “directed to inciting and likely to incite imminent lawless action” such as a riot.
Recently, Tea Party members and other extremists have taken advantage of their Constitutional rights to issue undisguised calls to violence against individuals and the government (see illustration above). Protesters carry slanderous and inflammatory signs, and show up at meetings “bearing arms.” Advertisements even go so far as to target political opponents with thinly veiled encouragement to do them physical harm.
It seems obvious to me that this climate of hate contributed to the assassination attempt against Arizona Congresswoman Gabrielle Giffords, who was shot in the head and remains in critical condition.
Surely, this is not what the Founding Fathers intended.
I am convinced they would agree that it is time for Congress, the media and Constitutional scholars to get together and address what has become “a clear and present danger.”