Our Not So Free Speech

By: Jeff Spector
January 6, 2012

As a child of the 60s and 70s, I came to realize that the rights we have as guaranteed by the Constitution and the Bill of Rights are somewhat conditional. Firstly, and obviously, you are not free to yell “fire” in a crowded movie house unless there really is a danger. But secondly, and more provocatively, your speech and right to assemble are limited by what the government might perceive as a “clear and present danger,” whether it be Federal, State or Local. In other words, if one of the governments really does not like your speech or your assembly, they make an excuse to break it up.  While a lot is let go, when that perceived danger arises, they take action.

One only has to look at how various Occupy Movement encampments were handled, the spying and infiltrating the FBI and other agencies did on the 70’s anti-war movement, the KKK in the 60’s and communist organizations in the 50s. Spying was not limited to groups, but also to individuals. All in the name of “national security.” The FBI, especially under J. Edgar Hoover, had extensive files on people including prominent foreigners who lived in the US.  The riot situation at the 1968 Democratic convention in Chicago was born out of an anti-war protest.  In the last decade, in the wake of 9/11, Congress passed the Patriot Act, which allowed the federal and local governments even more power to spy on the American people.

For instance, here in Colorado Springs, the Occupy movement was camped in Acadia Park, an open-square type park in downtown. The worked out an arrangement, under a permit from the city, that they will no longer camp in the park, but be there from the hours the park “opened” and “closed.” The park is wide open so the open and close were arbitrary times set to discourage the homeless from living in the park full time since it is down the street from the soup kitchen.  After a month of this arrangement where the demonstrators and police totally cooperated with each other, the Mayor decided not to grant the folks another permit because “ they had been there long enough.” There was no fighting, urination, sexual assault and only one small incident where a protestor was arrested for having outstanding warrants. But, the mayor decided that free speech is limited to the speech that he likes. Being a very conservative town, it was not what the Occupiers were saying.  However, the Tea Party folks with their racist signs and chants were pretty much left alone, though their rallies were pretty short by comparison.

We can agree that people are not free to perform bodily functions in public or, to commit sexual assaults or other crimes in the name of free speech and assembly. But what about peaceful protest?

So, what is your take? To be really have the right to Free Speech and Assembly as guaranteed by the Bill of Rights or is it conditional?

31 Responses to Our Not So Free Speech

  1. Stacey Valderama on January 6, 2012 at 8:29 AM

    The rule of law cannot itself be codified in law. The rule of law can only exist if it is universally- or near-universally- acknowledged by both the governing and the governed.

    Without the populace completely on board, it is too easy for the rule of “law” to degenerate into the rule of the rich, the rule of the strong, or the rule of the ruthless.

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  2. Will on January 6, 2012 at 9:00 AM

    Jeff,

    What you are not taking into consideration are rights granted to local municipalities to establish and enforce zoning laws– fee simple ownership, granted under the constitution, is restricted by taxation, escheat, eminent domain and police powers (zoning enforcement). This allows for local municipalities to set rules on a wide array of things, such as permitted uses, conditional uses and the types of activities that can take place within the zone.

    For instance, I own a vacation home in Southern Utah and the city came after us as we had multiple (non-related) families in the same home. It was over a holiday break (not permanent), but they still had the authority enforce the ordinance.

    With respect to OWS, the cities have the authority to stop them from staying overnight for instance. And, given the crowd and related criminal activities they attract in some cities, the city has the right to deny a permit. This type of thing may not have happened in Colorado City, but the local municipality can look at what is happening in other cities and deny the permit to avoid this happening in their city. This is called being responsible.

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  3. jmb275 on January 6, 2012 at 9:18 AM

    I agree with you Jeff, it is most unfortunate what has been done to many of the Occupy protesters. They’re annoying, not unlike the Tea Party, but that doesn’t give us the right to spray them with mace.

    Anyway, Jeff, the question for me isn’t whether or not this is an issue, but what the hell we’re going to do about it. And the answer is…nothing. We’ll do nothing about it because people like Ron Paul, who actually believe in liberty, are seen as crazy. We’ll complain and whine about it some, and then we’ll all go home to our TVs and forget about it. We’ll remind ourselves that we’re most concerned with our own comfort, and we’ll convince ourselves things have to be the way they are to prevent some other perceived evil.

    Or perhaps, less cynically, we’ll worry and fret about the infringement of some pet privilege or right, but then with a strange inconsistency we’ll decide it’s okay if we infringe on people’s economic liberty, or the liberty of foreigners, or a woman’s right to her own body, or two people to get married, etc. etc.

    Because the reality is, we don’t really want liberty and freedom, we only want liberty and freedom as long as it doesn’t inconvenience us. Or conversely, we’re okay with stripping liberty from others when it agrees with whatever moral code we ascribe to. Which I believe is the ultimate point you’re trying to make.

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  4. Jon on January 6, 2012 at 10:10 AM

    First of all, constitutionally speaking, the free speech amendment was meant for the federal US government, not the states and municipalities. It wasn’t until the 14th that it applied also to the states and decided that it was impracticable to keep. Yes, at the state level there shouldn’t be no constraint on speech, don’t get me wrong there should still be fairly free speech but they should be able to stop people from yelling fire or honking their horn incessantly in the middle of the night. But the federal government should make absolutely no law on speech.

    Secondly, the FBI and CIA are antithetical to a free nation. They should be abolished. Along with all the other horrible laws that the federal government makes (like the unpatriot act and allowing the president to murder Americans without due process and start wars of aggression without, at the very least, approval of congress – constitutionally speaking, of course).

    Thirdly, in a free society, there would be no “public lands” as we know them today. If there is a public land then someone should be able to homestead it and make it there own. If people want to purchase land together they could. This would end many of the injustices and conundrums that happen today because of government owned lands.

    Lastly, how the OWS people have been treated is horrendous and truly shows that the emperor wears no clothes.

    Ditto to what jmb said.

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  5. Cowboy on January 6, 2012 at 10:18 AM

    There is little doubt that across the nation, there was an overreaching effort to silence the free speech rights of the Occupiers. Still, that pressure was pretty much there from the beginning, yet in those places where the Occupiers had large numbers, they seemed to be able to hold their own. So, what happened? My guess, they weren’t driven out by the old men on Wall Street, or the old men on Capital Hill. Rather, they single handly tossed out by Old Man Winter.

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  6. salt h2o on January 6, 2012 at 2:40 PM

    I think homeless people should just sleep with a cardboard sign that says “I am the 99%”- that way they could sleep where ever they want because they’re protesting.

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  7. x1134x on January 6, 2012 at 5:42 PM

    It isn’t rocket science. Anyone who can read and understand English can easily figure it out: Congress shall make NO law respecting the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    NO law. Not a ZONING law, not a PUBLIC SAFETY law, NO law. If the states sign on to this constitution, they must abide by it as well.

    The ONLY variable here is the word “peaceably” to some that would mean “go home after 8″, to others that would mean “no fighting or crime, but protest 24-7.”

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  8. Will on January 6, 2012 at 6:41 PM

    x1134x,

    “Congress shall make NO law respecting the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”

    Agreed, with the key term being ‘PEACEABLY (I would emphasis this term rather than NO), which in some cases the OWS crowd was, but in a lot of cities they acted like animals – defecating in public, urinating in public ,having sex in public and public nudity. What’s more, some of them committed the most horrific crimes possible, including rape , murder and attempted murder of the President of the United States. The guy that attempted to kill President Obama was celebrated in San Diego by the OWS crowd.

    When you have a crowd that is this bad, the local government has the right to stop them. As it was a national movement, local cities have the right to look at what is happening elsewhere and stop it from happening in their city. Again, this is not violating people’s rights; rather, it is protecting society from people acting like animals.

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  9. x1134x on January 6, 2012 at 6:48 PM

    I hope you agree, then Will, that peaceful protests must be tolerated.

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  10. el oso on January 6, 2012 at 7:02 PM

    “Congress shall make no law respecting…” I have not seen any federal law enforcement used to break up any local OWS protests. State and local zoning, traffic, etc. laws enforced by state and local authorities have been used. This is absolutely constitutional since they, and not the federal government have the general police power.
    Political speech and free assembly are restricted in many ways already, but a group assembling on private property will have little interference. A large continual assembly like OWS will naturally attract nuisance complaints and frequently counter protesters. There is a real limit in time and space to this right to assemble when it interferes with MY right to assemble.

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  11. Jon on January 6, 2012 at 9:15 PM

    x1134x,

    Poor argument. Plain English, i.e., congress, it isn’t talking about the state or local governments. Part of what the people feared when signing on with the constitution is to much centralized control, hence the amendments to clarify further that the central US government cannot do these certain things, if for some reason they superseded their authority. Of course, we see, that a paper let’s us know that they have passed their authority, it doesn’t really stop anyone.

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  12. x1134x on January 6, 2012 at 11:02 PM

    el oso, laws are subject to judicial review, and MUST be deemed CONSTITUTIONAL, i.e. they cannot conflict with principles already established within the constitution. ALL US laws must conform to the US constitution.

    The same reason your local government can’t make a law that says “federal laws don’t apply here”. Just the other side of the coin.

    You can’t pass a law that makes slavery legal *locally* would be another example.

    As jon astutely points out, however, they’re just words on a piece of paper, and they’ve been circumvented or flat ignored since the mid 1800s. They are still quite clear.

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  13. el oso on January 7, 2012 at 4:04 PM

    x1134x,
    As I said originally, the states and local govts have the general police powers in the constitution. They are perfectly within their authority to regulate assembly, commerce, and other activities in public roads, parks, buildings, etc.
    I do not have the right to organize a protest that shuts down major roads at my whim. It interferes with too many other people’s rights and will be shut down.

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  14. Bradley on January 7, 2012 at 5:40 PM

    It’s real simple. The 1% are the feudal lords and the 99% are the serfs. Democracy has turned out to be the tyrant’s best friend, since they can always hoodwink half the people. Why else do we need guns to spread democracy?

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  15. SUNNofaB.C.Rich on January 7, 2012 at 7:24 PM

    oh, I thought I saw “Occupy Salinas, California” the other day but then I realized it was the same dirty bums that hang out in that park all the time. There’s some real idiots out here in California associated with the “occupy movement” though… to the extent of breaking into private property and all that. So I guess I don’t have any sympathy for their counterparts out in Colorado.

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  16. x1134x on January 9, 2012 at 10:50 AM

    el oso: the local governments only get to define what “peaceable” means. They DO NOT have the authority to prevent peaceful assembly “if they want” because they have “police powers”. Sorry. They do not.

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  17. FireTag on January 9, 2012 at 4:48 PM

    Folks:

    “petition the Government”

    The key word is not peaceable or local, but GOVERNMENT. Nothing I see there about protesting on private property, against private citizens, or private institutions just because you don’t like them. That kind of “speech” does have restriction because the Constitution is supposed to allow government to protect citizens from each other. You can’t just disparage RICH people as a solution to inequality unless you want every body to be equally POOR.

    Now, if OWS was really concerned about the collusion between the Federal Government and Big Finance it would do better to complain about the President, the Chairman of the Federal Reserve, and the Senate Majority Leader who actually have a stranglehold on fiscal and economic policy. OWS would have a lot more credibility if they actually worked against politicians in BOTH parties and actually managed to camp out in the right city.

    Right now, they aren’t convincing anybody who wasn’t already in their choir. That’s why the local politicians aren’t putting up with the circus the way they were at first. They launched a revolution, and nobody came.

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  18. Jeff Spector on January 9, 2012 at 7:25 PM

    Will,

    “but in a lot of cities they acted like animals – defecating in public, urinating in public ,having sex in public and public nudity. ‘

    Are you sure you are not confusing that with NASCAR?

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  19. Will on January 9, 2012 at 8:40 PM

    Jeff,

    Lol. Not much difference I suppose. You could add hippies and wal-Martians to the list.

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  20. SUNNofaB.C.Rich on January 10, 2012 at 12:01 AM

    Wal-Martians, i’ve never heard that one… that’s pretty good!

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  21. Douglas on January 10, 2012 at 3:11 AM

    Jeff – the canard about the “Tea Partiers” being ‘racist’ has been well refuted. If their objection to tax dollars being given to ungrateful cretins that make welfare a lifestyle rather than a stepping stone out of poverty, and breed further generations of cretins and criminals, if THAT is “racist” then we do well for Americans of ALL colours and creeds to be “racist”.
    As for the OWS crowd…geez, if they’ve that much gumption and pee and vinegar, how about first expending their individual efforts on further their own interests – namely procuring for themselves what they seem to be in most desperate need of: (1) a bath (2) a haircut or hairstyle (3) a shave or manicure, and finally, (4) a job, even humbly scrubbing floors or shovelling manure! Instead, the OWS crowd seem to composed of a gaggle of mis-educated crybabies that have entirely bought into the notion that the world, or at least the US white male taxpayers, owe them a living. It’s well that Colorado Springs and other municipalities, (like here in Sacramento) drove these knuckle heads out of their camps, for reasons of public hygiene, if nothing else.

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  22. Jeff Spector on January 10, 2012 at 7:19 AM

    Douglas,

    “the canard about the “Tea Partiers” being ‘racist’ has been well refuted”

    Defended, yes, refuted, not really, the pictures and audio spoke a thousand words.

    As for the OWS protestors, A bit of a stereotype is being applied by you there as opposed to any real argument against their message, which does, ironically, somewhat coorespond to the tea party message, only presented from the opposite POV.

    here in colorado Springs, the protestors set up in the morning and went home each night. there was no hygene issues and they and the police had a good relationship.

    It was the Mayor who decided not to have them there anymore and is looking to draft legistation to ban any type of protest except in “protest zones.”

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  23. Jon on January 10, 2012 at 7:29 AM

    It seems like you are both looking at the fringes of the group rather than the majority.

    And yes, they both carry the same message, they both don’t like the mercantilism. And yes, both groups advocate socialism.

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  24. Douglas on January 10, 2012 at 12:42 PM

    Jeff – as to visual evidence that would reasonably characterize the Tea Partiers as being racist, put up or shut up. However, I share your concerns about the CS mayor wanting to create restrictive “protest zones”. Not necessary, IMO, to ensure public safety, and a slippery slope. I want these idiots to have every leeway possible to make damned fools of themselves. Your protesters in CO seemed to be better behaved than the cretins we had to deal with in CA. Oh that I could put a “flux capacitor” on a bus and go back to 1968, to bring Mayor Daley’s skull-cracking thugs wearing badges to kick some ass. They knew HOW to deal with “protesters” back then….just ask the late Abbie Hoffman.

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  25. Jeff Spector on January 10, 2012 at 2:00 PM

    Douglas,

    here is one article on that racist stuff:

    http://www.thedailybeast.com/newsweek/2010/04/25/are-tea-partiers-racist.html

    however, your dismissive attitude and abrasive words give me a hint that all the proof in the world probably doesn’t matter.

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  26. FireTag on January 10, 2012 at 5:16 PM

    Jeff:

    I guess the question is whether the OWS in Colorado is more the rule or the exception.

    To paraphrase a friend whom I shall not name, but whose initials are JS:

    The charges against OWS have been “Defended, yes, refuted, not really.” Here’s a report from yesterday’s Washington Post — that bastion of right wing journalism :D — on the conditions surrounding Occupy DC camps.

    http://www.washingtonpost.com/blogs/post_now/post/city-rat-population-has-exploded-around-occupy-dc-camps/2012/01/09/gIQA6AoylP_blog.html

    We both succumb to stereotypes too easily.

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  27. Douglas on January 11, 2012 at 12:38 AM

    #25 (El Jefe..) at least you tried. If the “Daily Beast” is the best you can do, I must politely refuse to engage in a battle of wits with a man that disarms himself. Sir, beware of doing what your fellow son of Judah, a certain Carpenter from Nazareth, referred to as straining at gnats and swallowing camels.
    If I seem “abrasive”, it’s because I follow the style of our 33rd President, the haberdasher from Independence, MO. I don’t give anyone “heck”…I speak the truth plainly, but some think it “heck”

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  28. Jeff Spector on January 11, 2012 at 8:25 AM

    Firetag:

    “The charges against OWS have been “Defended, yes, refuted, not really.”

    Touche’ my Firend. That is a good one! :)

    However, I wouldn’t deny the problems with some of the OWS encampments.

    However, while I do not think that all of the Tea Party members are racists, there is that element that is out there.

    I doubt that true OWS followers are rapists and nudists.

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  29. FireTag on January 11, 2012 at 10:27 AM

    Jeff:

    And there are elements of Stalinist revolutionaries in OWS. On both sides, we need to separate the extremists that pollute the left AND the right and hear legitimate grievances from “normal” people against the actions of the politically and economically powerful BEFORE the extremes eat the “normals” and those grievances can get addressed only through violence.

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  30. Jeff Spector on January 11, 2012 at 10:48 AM

    Firetag,

    “And there are elements of Stalinist revolutionaries in OWS.”

    I am not aware of any of that anymore than I am of Hitler Fascists in the Tea Party.

    “On both sides, we need to separate the extremists that pollute the left AND the right and hear legitimate grievances from “normal” people against the actions of the politically and economically powerful BEFORE the extremes eat the “normals” and those grievances can get addressed only through violence.”

    Completely agree, it seems that with extreme views come extreme rhetoric which seems to always have an inflaming characteristic to it.

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  31. Bob on January 11, 2012 at 11:24 AM

    #25: FireTag,
    ““And there are elements of Stalinist revolutionaries in OWS.”
    I would not worry about these “cells”. The members are all now about a 105 years old .

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