Crossville Chronicle, Crossville, TN

January 30, 2013

Scout Report: I know it when I see it

By Clinton Gill
Glade Sun editor

CROSSVILLE — "Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates." Ben Franklin, Pennsylvania Gazette April 8, 1736

In previous columns I have tried to explain the role of religion and the importance of the press in sustaining a free society. In this last piece on the First Amendment I'll try to tackle the complexities of free speech and its implications.

While all men are created equal, they do not come programmed with factory settings. The need for some form of government arises from this basic law of nature: Every person is an autonomous creation. Every person is unique in some way. Our nation was founded on the principle of autonomy, or self-governance. Society only needs laws when it has no moral standard to guide conduct. This is the reason why religion was the first thing mentioned in the Constitution. We were founded on the philosophy that people could peacefully coexist with minimal mediation by regulating their own conduct. Obviously, the more similar people are, the more they can agree on and the less likely they are to have conflict. As society becomes more diverse, the disparity of differences increases, as does the need for an equalizer. In order for a society to peacefully exist, there must be some thing that binds people together, some commonality. This could be race, religion, language, culture or creed, along with any number of other things that serve as the lowest common denominator. The lowest common denominator is what defines a nation. To be clear, a nation is not the same thing as a country. A country is a geographic location with defined borders. A nation is that sense of "We." A country with no sense of nation is a country at war with itself. To illustrate this point, prior to the Civil War, if you asked someone from Virginia what they were they would likely say they were American. During the Civil War, if you asked that same person what they were they would likely say they were a Virginian.

The United States has commonly been referred to as a melting pot because of all the different cultures that have come together under one flag. However, the U.S. could not in any way, shape or form be construed as a single homogenous culture. It would be more accurate then to conceptualize our culture as a salad bowl. In this depiction, citizens maintain their distinct properties while still being part of a salad. But what does that have to do with free speech?

A common misconception in interpreting freedom of speech is that its purpose is to give citizens the right to be seen and heard, to express their artistic nature or to be as obnoxious as they please. While 200 plus years of jurisprudence allows citizens to do those things, the intended purpose of including free speech in the Bill of Rights was to keep the government from shielding itself from public examination or to criminalize criticisms of its conduct; everything outside of this was open to public restrictions for purposes of preventing crime, breach of peace, enforcing public morality, etc.

That no longer seems to be the case. The strength of the Constitution is also its weakness; it assumes and requires a citizenry with a sense of morality. The right of free speech has been used to tear the fabric of our society just as much as it has been used to preserve it. As John Adams noted," We have no government armed with power capable of contending with human passions unbridled by morality and religion....Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." All rights come with responsibility and limitations. Some of these limitations are hard to define; pornography, for instance, is covered under free speech as long as it is not considered obscene. What exactly is considered obscene? As Justice Potter Steward once famously quipped, "I know it when I see it." The problem with subjective definitions is that limits of obscenity have a direct correlation with moral decay – garbage in, garbage out.  

Just because you have the right to do something doesn't mean it's the right thing to do. Our nation was based on the philosophy of self governance. So what do we do, as a society, when people take their freedoms too far. Should we enact more laws to govern their conduct? No. We need to keep in mind the Constitution was not created to limit the freedoms of the citizenry, rather, it was created to restrain the government. Creating more law expands government and shackles individual liberty. You cannot legislate morality, people must choose to accept it under their own free will. It is the obligation of the citizenry to restrain themselves, to conduct themselves morally and to influence, teach and mentor those who may not have been instilled with wholesome values. In 1787, there were only four federal crimes, now there are well over 4,500 criminal offenses, yet the country is morally bankrupt and is losing its sense of nation. You cannot legislate morality, but you can use your freedom of speech to influence it.