(Editor’s note: This column is in response to a Revolutionary Act column in the wake of the Kathy Griffin revulsion.)
By KrisAnne Hall, JD
When speech, political or otherwise, is taken to the heights of offensiveness one can expect there to be consequences. If a person wishes to push the boundaries into the vile and reprehensible, then that person should be ready to be shamed, shunned, boycotted or soon unemployed. Any or all of those consequences are understandable and often justified in a civil society. Yet to be targeted by the government for prosecution for being offensive is another issue entirely.
If America has forgotten one thing it is that, Liberty is not neat and tidy. It is quite often offensive and abrasive. Thomas Jefferson, author of the Declaration of Independence and our third President declared: “Malo periculosam, libertatem quam quietam servitutem,” translated as “I prefer the tumult of liberty to the quiet of servitude.”
However, the founders of our Constitutional Republic knew that Liberty was the most important thing in society and in life. Patrick Henry, a designer of our Constitutional Republic and delegate to the State of Virginia, professed that he would rather suffer death than a life without Liberty. It is when our ideologies are tested that our devotion to Liberty is truly challenged. No other liberty is more challenging and more delicate than the liberty of free speech.
America’s Founders took free speech to extremes
During our battle for Liberty with Great Britain, it was common for the Sons of Liberty to fashion life-sized, stuffed likenesses of politicians and then hold public mock hangings of these effigies. If that was not offensive enough, at the conclusion of the mock hanging they would also light fire to this caricature and rejoice in its burning.
The Sons of Liberty did not restrain their criticism of the crown. One opposition chronicler of the events noted “The sons or Spawns of Liberty and Inquisition were still venting threats and Insulting the Crown and Officers under it.” (Capt. John Montressor, The Montressor Journals)
Mock hangings were not the only form of potentially offensive free speech expressed by the founders of our Constitutional Republic. These supporters of Liberty also held mock funerals that began with processions marching down the streets with coffins in hand and likenesses of politicians and tax collectors on the caskets, concluding with a full eulogy and funeral service.
One Oxford historian describes our founders’ artistic processions of death: “In the make-believe world of 1764 and 1765, the stamp distributors died, resolving the problem of moral evil through creating surrogate victims which could be mutilated, hanged, and immolated with impunity.” (Ann Fairfax Withington, Mock Funerals and Mock Executions)
These are historical examples of free speech as expressed by the very authors of the First Amendment. Their own expression of political speech was often far from civil and even included artistic and (from the ruling British perspective) vile depictions of the death of the officers of the crown. Without such expressions fueling the understanding of and dedication to the cause of liberty, our nation would not likely have been birthed on this continent.
Founders battle for free speech
Even after our liberty was won from Great Britain, the battle for free speech in America continued.
On July 14, 1798, the political party in power, supported by John Adams, the second President, was able to pass through Congress the Alien and Sedition Acts. With the backdrop of the French Revolution spreading its terror throughout Europe and the fear of foreign subversives infiltrating America, the Adams administration and his party hoped to tighten immigration controls and silence dissenters. This act to protect national security was so destructive to free speech and free press, that our newly formed union nearly erupted in a revolt against this president and the Congress that passed this unconstitutional law.
The Sedition Act declared that people who assembled to protest a law, a politician, or any act of government was guilty of a “high misdemeanor.” This Act went on further to make it illegal to “write, print, utter or publish, cause to be written, printed, uttered, or publish…any…scandalous or malicious writings…” against anyone in the federal government with intent to “defame” or bring them into “contempt or disrepute” or to “excite against them the hatred of the people” is also guilty of this “high misdemeanor.”
As a result of this Act, 17 people were indicted, 10 were convicted, most were journalists, some were not. Here are a few examples:
- Journalist Benjamin Bache would be arrested for printing in his publication “Aurora” that President Adams was a “old, querulous, Bald, blind, crippled, and Toothless.” Since his writings were classified as “abusive” to the President and written in “malice,” he was to be criminally prosecuted.
- David Brown was arrested in April of 1799 for helping to erect a liberty pole with a sign that read, “A Speedy Retirement to the President. No Sedition Bill, No Alien bill, Downfall to the Tyrants of America.”
- Luther Baldwin, a Congressman, was arrested in July of 1798 for getting drunk and yelling out publicly “There goes the President and they are firing at his ass.” It was also reported that Baldwin shouted that “he didn’t care if they fired thro’ his ass.” A tavern owner, hearing these exclamations, declared the statements to be seditious and Baldwin was later arrested and convicted of Sedition.
- The most outrageous case involved Congressman Matthew Lyon, a member of a political party opposing President Adams. Lyon wrote an article in the summer of 1798 criticizing President Adams’ “continual grasp for power” and his “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” In a later writing, Lyon wrote that Congress should dispatch the President “to a mad house” for his handling of the French Crisis. In October, a federal grand jury indicted Lyon for stirring up sedition.
Mimicking the age’s tyrant kings
President Adams’ actions began to mimic those of the tyrannical kings that permeated this generation’s history: The imprisonment of Sir Edward Coke by King Charles I for establishing a petition of grievances against the king; The imprisonment of bishops by King James II for criticizing the king from the pulpit. These are just two examples of the struggle between Liberty and government that gave rise to the Five Liberty Charters from which we would inherit our Constitution and Bill of Rights.
Knowing this history and the ways of tyrannical government, the people knew they had to organize against this unjust and unconstitutional act of their federal government. James Madison and Thomas Jefferson were placed in charge of writing Resolutions for Virginia and Kentucky to express the outrage of the people. Madison’s Virginia Resolution pointed out that this Sedition Act was not only a power not delegated to the federal government but one that is expressly forbidden.
Madison charged that this act alone, “ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.” Madison characterized the federal government’s Sedition Act as a “reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.”
Jefferson’s Kentucky Resolution carried on this list of criticisms and decried the assertion that the federal government had been granted any power to limit the free speech of American’s in order to avoid criticism or offense:
“That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers:”
These kingly acts by Adams would bring about his political demise. Thomas Jefferson would be elected president in a romping victory. The Sedition Act would be repealed. After being elected president, Thomas Jefferson immediately pardoned all those convicted under the Sedition Act.
It is not at all uncommon for a person to lose sight of the proper principles when he sits at the seat of power. He can easily become a tyrant seeking to punish all who oppose him. What he fails to realize is that his behavior is self-destructive. When he attacks the natural rights of his foes he threatens to damage those same rights for himself, his countrymen and future generations. As Thomas Paine had remarked previously:
“An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates his duty he establishes a precedent that will reach to himself.” (Thomas Paine, Dissertation on First Principles of Government, 7 July 1795)
As one studies the details of this stretch of history and looks out on the scene of America today it is obvious that those who do not know their history are doomed to repeating its mistakes.
Lose speech, lose the Republic
“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or controul the Right of another: And this is the only Check it ought to suffer, and the only Bounds it ought to know.” – Benjamin Franklin, Silence Dogood Essay No. 8
Benjamin Franklin rightly declared that the only check a person’s liberty should suffer is that “he does not hurt or control the Right of another.” Expressing offensive speech is not hurting or controlling the Right of another. One doesn’t have a right to not be offended, nor a duty not to offend. If that is not the case then the very foundations of our Republic are illegitimate, the Constitution is invalid and the government has no basis upon which to exist much less upon which to prosecute. Thankfully, our founders understood that these principles were self-evident.
James Madison, our fourth President also known as the Father of the Constitution, described freedom of speech as a kind of property. In 1792, he wrote:
“…a man has a property in his opinions and the free communication of them… Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” (emphasis added)
Madison is reasoning from the principles of Natural Law. A man has property in his faculties by nature of his being. Man was created neither by government nor by another man and therefore has a natural right to what is his, including the faculty of his speech. Government being of creation of that man is instituted with a duty to protect the man’s property, which includes his inalienable rights. Note Madison uses the word “impartially.” For America to be a just government, it must be one that is willing to protect not just popular and palatable expression, but even the most offensive and vile.
To assert that the popular or majority opinion of appropriateness is the measure of the length and breadth of free speech is to ignore the history that demanded the necessity of our First Amendment and to cast aside the principles of Natural Law upon which our founding documents rest.
Benjamin Franklin believed that a nation rises or falls in connection with its handling of freedom of speech:
“This sacred Privilege is so essential to free Governments, that the Security of Property, and the Freedom of Speech always go together; and in those wretched Countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own. Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech; a Thing terrible to Publick Traytors.” Silence Dogood #8
The foundation for freedom
Freedom of speech is the bedrock principle of all wisdom and liberty in society.
When the government can curtail speech, we the people will inevitably suffer the most arbitrary and oppressive governments known to history. Freedom of speech should be such a dear right to all Americans that we would rejoice over the fact that something offensive can be spoken publicly.
When government, or the mob, can determine what is offensive or acceptable, then no other freedom is secure. The protections of freedom of speech were not embedded into the foundation of this republic merely to protect that which my opponents might find offensive, but more than anything else that my speech might be protected when it targets government and its ministers.
These are the principles that truly make America great. It is unfortunately all too common for those who gain the position of power to tend toward an overzealous defense of themselves (like Adams) or, in our day, of their party, or mistake a sense of intense nationalism for a focus on the just cause of liberty. We would do well to understand that we must suffer the speech of fools, so that the speech of the just may have its day.
We cannot allow government to have the power to punish speech. If we wish to be the America that is true to our Liberty foundations, we must hold fast to these rights, even if they make us feel uncomfortable. All the people, all of government, from the local mayor to the President, should be dedicated to the unfeigned protection of all speech and assembly, regardless of how we feel about the message.
Let civil society deal with offense, keep government out of it. That is the definition of “freedom of speech;” that is only way to secure Liberty.
KrisAnne Hall is a former bio-chemist, Russian linguist for the US Army, and former prosecutor for the State of Florida. KrisAnne also practiced First Amendment Law for a prominent Florida non-profit Law firm. KrisAnne now travels the country teaching the foundational principles of Liberty and our Constitutional Republic. KrisAnne is the author of 6 books on the Constitution and Bill of Rights, she also has an internationally popular radio and television show and her books and classes have been featured on C-SPAN TV. KrisAnne can be found at www.KrisAnneHall.com