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Freedom of speech is not absolute

Published October 16. 2019 12:07PM

When the First Amendment was ratified in 1791 as part of the Bill of Rights, Americans were ensured of what is known as the five freedoms — speech, religion, press, assembly and petitioning the government. They also constitute what we commonly call “freedoms of expression. The Supreme Court has written that this is “the indispensable condition of nearly every other form of freedom.” Without it, other fundamental rights could die.

While all five of the freedoms in the First Amendment are fundamental to our notion of liberty, the one we cherish most is freedom of speech. We are free to say pretty much what is on our minds; we can even criticize our elected officials by calling them idiots and morons, sometimes worse. Doing so doesn’t say much for our vocabulary, but we are free to do it without the police showing up at our door and arresting us.

But freedom of speech is not an absolute; let’s call it a qualified right.

A 15-year-old Luzerne County boy found that out recently when a state appellate court ruled him delinquent because his statement about upping the body count from a Florida school shooting in 2018 amounted to terroristic threats.

A three-judge Superior Court panel ruled that the boy, known only in court records as “J.M.M.,” made the remark with “conscious disregard” of the terror that it would cause among his classmates at the vocational-technical school he attends near Wilkes-Barre.

“We hold that in the context of the special circumstances … made in a school setting, a threat made with the mental state of recklessness … constitutes a true threat falling outside the scope of the protections of the First Amendment,” wrote Judge Mary Jane Bowes.

The boy told his classmates he wanted to “break the record of 19” of the gunman at Marjory Stoneman Douglas High School in Parkland, Florida. (Actually, 17 were killed in this infamous mass shooting.)

We are constantly being warned not to make incendiary statements, even when we are not serious or trying to fool around. That’s why free speech advocates are worried that one of our most cherished freedoms might be eroded or diminished in our rush to stamp out inflammatory comments.

In a case more than a century ago, Supreme Court Justice Oliver Wendell Holmes is famous for having conceived the concept of falsely shouting “fire” in a theater and causing a panic. He said this is not protected speech.

What jurists must determine in cases such as these is what are the circumstances, and do the comments present a clear and present danger that will cause harm, panic or chaos.

Let me show the difference: If someone pulls a prank on you, and in a moment of relief you smile and say, “I could kill you for that,” this is a big difference from someone with whom you have had a serious argument saying to you, “I am going to kill you.”

First Amendment protection is not limited to verbal speech. It also protects “symbolic speech” — nonverbal expression whose purpose is to communicate ideas. In its 1969 decision in Tinker v. Des Moines, the Supreme Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. In 1989 (Texas v. Johnson) and again in 1990 (U.S. v. Eichman), the Court struck down government bans on flag desecration.

Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances.

Locally, there have been two such notable cases in the past decade. Ten years ago, the Palmerton Area School District attempted to initiate a dress code. After its enactment, 20 protesting high school students were reprimanded for wearing “Property of PHS” T-shirts reminiscent of prison garb. The punishment given to these students caught the eye of the Pennsylvania branch of the American Civil Liberties Union, which sent a letter to district administrators and the school board demanding that the district clear the students’ records, which they did rather than get into a court fight.

Five years ago, after two Easton Area Middle School girls came to class wearing “I love boobies” bracelets to call attention to breast cancer awareness, school officials suspended them when they refused to remove them. The district claimed the bracelets distracted the boys in the girls’ classes.

The ACLU joined the case, and the local and state courts sided with the students and their parents. The school board, which spent hundreds of thousands of dollars fighting the case, had no success with the appeal that went all the way to the U.S. Supreme Court, which refused to hear the case. When push comes to shove, we may disagree with the ideas and opinions of others, even if they anger us and are the opposite of ours, but we need to see and hear them, because if we ban them, then no one’s liberty is secure.

By Bruce Frassinelli | tneditor@tnonline.com

Comments
Not sure I totally agree Bruce... In fact, I'm chewing my morning Pop-Tart into the shape of a gun... oh darn, I ate too much off again.
Next time Bruce, I'm warning you... next time!

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