Defending our right to speak

June 25, 2011

OPINION By ROGER FREBERG

When I first set about to write this article, I was reminded about the many situations in which our free expression of ideas can land us in hot water. Exercising your free speech is not without personal cost; all one has to do is look at the history of those who signed the Declaration of Independence to see what costs were paid. Here’s a quote on the fate of those who signed. Of those who lived, most lost almost everything:

“Of those 56 who signed the Declaration of Independence, nine died of wounds or hardships during the war. Five were captured and imprisoned, in each case with brutal treatment. Several lost wives, sons or entire families. One lost his 13 children. Two wives were brutally treated. All were at one time or another the victims of manhunts and driven from their homes. Twelve signers had their homes completely burned. Seventeen lost everything they owned.”

Today, many workplaces, private or public, have various restrictions that can result in your legal termination based on what you may say, write or post about your workplace. It may seem very noble to be a whistle blower, but often the protections – if any – are cursory. Free speech takes courage or at least an alias.

Free speech is also not necessarily cherished in our social gatherings, unless one is amongst liked minded people. Social tact and discretion help temper or censor our strong opinions in public settings. So, if we feel constrained at work and in many social situations from exercising our free speech, when are we really free to speak? Obviously, the answer is ‘anytime,’ but we should know the risks big and little. Many folks have lost friends when talking about money, religion or politics; however, one has to wonder what kind of friends they were to start with?

The challenge for all of us is to speak up when the need arises. Defending your child against the arbitrary punishments of a teacher should be no different than standing up to repressive elected officials hell-bent on raising your taxes just because they can. To make things better for all of us in the long run, we need people to voice their genuine concerns publicly.

The First Amendment

When I was growing up, two of the requirements of my middle school education were to memorize the ‘Declaration of Independence’ and the ‘Bill of Rights.’ The first amendment to the constitution is on ‘free speech:’

“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.”

The history of the development of this amendment had as much to do with protecting various out-of-power political parties from arrest for treason as it had to do with protecting the individual. William Blackstone in ‘Commentaries on the Laws of England’ (1769) said, “Every freeman has an undoubted right to lay what sentiments he pleases before the public…” Interestingly enough, the ‘freedom of religion’ section was added late in the process, which tells me that even in a very religious America, the right to speak freely was highly cherished.

However, the concern today — as well in the beginning — was the threat of government ‘censure.’ Way back then, governments would ‘license’ newspapers to print and their license would be revoked if the King didn’t like what was written and it was treasonous to speak against the king. You can imagine what limited reading was available.

The FREE internet

Although we are told that various political entities have a ‘kill switch’ on the internet and some countries have restricted or taken the internet ‘private’ (like Iran), the internet has given the average person a window on the world and current events as they happen that was only available – in the past – to the privileged few. Knowledge is power after all and elitists don’t like to share. Senator Jay Rockefeller made a widely distributed statement that gets to the heart – I believe — of elitist angst:

“It really almost makes you ask the question would it have been better if we had never invented the internet,” —  Senator Jay Rockefeller

So, as long as we have a sort of ‘free’ internet, we all have a chance to decide for ourselves what we think of the world and events as they play out. Let’s make sure this never changes.

40th Anniversary of Cohen vs. California

Free speech often has unusual champions, as exemplified in the landmark case of Cohen vs. California that is celebrating 40 years today. Samantha Harris of F.I.R.E. (Foundation for Individual Rights in Education) writes:

“Indeed, FIRE frequently cites Cohen when writing to universities that have charged students with disciplinary offenses for using profanity or other offensive but protected speech. Among other things, the Court’s recognition that “one man’s vulgarity is another’s lyric” has proven an important defense against universities’ attempts to prohibit speech simply because it offends the sensibilities of others.”

As David Hudson of the First Amendment Center notes, “Cohen v. California is an important case to be celebrated whenever we reflect on the crucial importance of the First Amendment in our free society.”
Anti-SLAPP Suit

Guys with deep pockets no longer fit you with cement overshoes, they just take away your money through litigation. Few of us, other than the legendary three families of San Luis Obispo County” have the resources to fight back long term. However, if you do not contest a litigation, you lose pure and simple.

A SLAPP suit is “a strategic lawsuit against public participation (SLAPP) … that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.”

The California Anti-Slapp project says the following: “While most SLAPPs are legally meritless, they can effectively achieve their principal purpose: to chill public debate on specific issues. Defending a SLAPP requires substantial money, time, and legal resources, and thus diverts the defendant’s attention away from the public issue. Equally important, however, a SLAPP also sends a message to others: you, too, can be sued if you speak up.”

If you win your anti-SLAPP suit you probably will recoup your attorney fees. Additionally, you may have grounds to counter sue and that’s when –potentially- the other guy could pay big.

“Going to the Mattresses”

Most men know this expression as well as they know where a quarterback places his hands. It’s from the ‘Godfather.’ It means that if you find yourself in a free speech fight, then fight to win.

The first freedom a society can lose is to lose the right to speak freely and openly. If we lose this right, then everything is gone.

Roger Freberg is a San Luis Obispo resident who is using his retirement to write a culinary-inspired blog, comment on important local events and occasionally enjoy getting sued for his journalistic excellence.