The Limits of Free Speech

Full disclosure, the content of this article was originally supposed to be included in the article What is Free Speech?. However, we admit, we sort of got off on a bit of a tangent there with the whole cigar thing and, well, we just kind of ran with it. And then we felt the article would be too long so… Anyway, this whole Twitter fiasco over banning President Trump has raised so many questions and issues surrounding free speech that we still have things to say on this topic and, well, damnit, we’re going to say them. This is our blog after all.

As referenced in What is Free Speech?, there are; perhaps surprisingly, limits to free speech in America. We say surprisingly because the First Amendment to the Constitution of the United States of America seems pretty clear:

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. – Bill of Rights

And yet Congress has, in point of fact, made laws limiting free speech in America. Specifically, we are referencing the federal felony enacted by Congress in 1917 as part of the United States Code Title 18, Section 871 regarding the threatening of a President of the United States. Soooooo…what now?!? How is that even possible? The plain language of the Bill of Rights clearly reads that making a law abridging free speech should be not be possible. As in, 100% impossible.

OK, sure, Congress makes up stupid laws all the time because it is full of complete and utter morons. We all know that. It’s obvious. But those idiotic laws created by halfwits are invariably eventually overturned by the Supreme Court. So surely this statute has been overturned by…HOLY SHIT!…it’s actually been upheld?!? What the hell? Are we in opposite world? Something is clearly amiss! We need to take a look at the history here and what we find is that the saga of the curtailment and censorship of free speech in America has a surprising long and twisted path.

The curtailment of the freedom of speech unconditionally and unequivocally guaranteed by the Bill of Rights, which is part of the Constitution of the United States, actually began a scant seven years after the adoption of the Bill of Rights in 1791. So a mere seven years to say whatever the hell you felt like saying. Then, in 1798, Congress adopted the Alien and Sedition Acts in a clear F’ You! to the First Amendment. This act prohibited:

“false, scandalous, and malicious writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame…or to bring them…into contempt or disrepute; or to excite against them…hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States”.

OK, first of all, can you spell i n s e c u r e? Come on guys, you can’t abide a bit of criticism? People gonna hate. However, this act expired three years later in 1801 after never being challenged in the Supreme Court. In fact, after the election of 1800, Thomas Jefferson pardoned everyone that the John Adams’ administration had prosecuted under the statute, and there were many. So, Jefferson…mad props, yo!

Alright, so other than state and local “obscenity” laws passed at the state and local level; hey, the Constitution only specifies “Congress shall make no law…”, everything remained fairly static up until the 1917 statute making it a federal felony to threaten a President of the United States. People have actually been convicted under this statute. Notably:

• United States v. Stickrath, 242 F. 151, 153 (SD Ohio 1917) – “President Wilson ought to be killed. It is a wonder some one has not done it already. If I had an opportunity, I would do it myself.”
• Clark v. United States, 250 F. 449 (C. A. 5th Cir. 1918) – “Wilson is a wooden-headed son of a bitch. I wish Wilson was in hell, and if I had the power I would put him there.”
• United States v. Apel, 44 F. Supp. 592, 593 (D.C. N. D. Ill. 1942) – Regarding posters advocating the hanging of President Roosevelt
• 2010, Johnny Logan Spencer Jr. for the poem “The Sniper” about the assassination of President Obama
• 2010, Brian Dean Miller – “People, the time has come for revolution. It is time for Obama to die. I am dedicating my life to the death of Obama and every employee of the federal government. As I promised in a previous post, if the health care reform bill passed I would become a terrorist. Today I become a terrorist.”
• 2017, Stephen Taubert – For threatening to hang President Obama

Wow, who knew that President Woodrow Wilson was almost as hated as President Barack Obama? Wasn’t that dude white? And yo, Stephen, you were a bit late to the game there bud. Huh…huh…“wooden headed son of a bitch”…classic.

All joking aside, that’s all awful stuff. We aren’t advocating for threatening a President of the United States, or anyone else for that matter. Which begs the question, why the hell does the President get such special treatment anyway? That’s complete and utter B.S. Is the President a king or something? We don’t want people threatening us lowly plebes either we’ll have you know. But f’ it, apparently people can do that all day long. Lame. Regardless, how the hell is that law Constitutional pray tell?

To answer the above enquiry, we need to look no further than to Schenck v. United States in 1919. This Supreme Court decision states:

“The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Aha!! That’s where “shouting fire in a crowded theatre” comes from! Bonus! And thus we land on where the Supreme Court apparently starts to agree that Congress can, in fact, abridge free speech. Morons. Note that Schenck…really Schenck? That’s your last name? In any case, Schenck was convicted for distributing flyers urging resistance to the draft and the Supreme Court upheld this decision. OK, but sure, everyone makes mistakes, obviously the Supreme Court immediately started to walk back that nonsense. Nope, in fact, the Supreme Court double-downed on that B.S. circa 1942 with Chaplinsky v. New Hampshire. Really…Chaplinsky?

In Chaplinsky v. New Hampshire, the Supreme Court implemented the “fighting words” doctrine. Swear…swear to God, as crazy as that shit sounds, we are not making this up. You see, in 1940 a Jehovah’s Witness named Walter Chaplinsky was detained for distributing pamphlets accusing “organized religion” of being a “racket”. Setting aside the fact that the Jehovah’s Witnesses are, well; you know, sort of an organized religion and all while simultaneously setting aside that, well, the dude kind of has a point there… In any case, good ol’ Walter ends up calling a town marshal, and we quote: “You are a God-damned racketeer” and “a damned Fascist”. Poor S.O.B. ends up being convicted under New Hampshire’s “offense language” law and the Supreme Court, the Supreme Court of the United Freaking States upholds this nonsense, stating:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Honestly? In any case, it is not until 1969 that things start to get any better with Brandenburg v. Ohio. Damnit Ohio, always sticking your nose in things. In any case, this is where the Supreme Court started to walk back the ridiculous restrictions around free speech. Sure, it’s beyond unfortunate that this particular case essentially defended KKK member Clarence Brandenburg’s right to spew vile racial bigotry. And, what the hell, are all KKK members named Clarence? We don’t mean to stereotype but; damn, you meet a guy named Clarence and you know you are immediately thinking “This guy’s a Ku Klux Klan Grand Master”. OK, sure, maybe not Clarence Thomas. Maybe. But still… In any case, this is essentially the start of the Supreme Court steadily narrowing the scope of what is regulated speech. Fortunately, that narrowing continues to this day.

Oh wait, except for New York v. Ferber, where the Supreme Court upheld bans on child pornography in 1982. Wait…a…minute…1982? Are you telling us that in 1942 poor ol’ Walter got fined for calling someone a “racketeer” and a “Facist” but it took you Supreme Court yahoos 40 more years to declare child freaking pornography illegal?!? Shame! Shame on you Supreme Court. Priorities. Priorities people. Honestly though, Supreme Court, we are 100% with you on the child pornography thing. Definitely not something that the founders of the Constitution could have ever dreamed of in their day. But the rest of it? It’s like you read the Constitution to say:

“Congress shall make no law abridging the freedom of speech, unless at some point in the future Congress just says “F’ it” and makes some laws to abridge free speech anyway and then it is OK.“

But…it doesn’t say that. The Constitution…it doesn’t say that. Still, technically, the child porn stuff should have been an Amendment. Technically.

So, anyway, that is the condensed version of the history of the limitations on free speech in the United States of America. That is, until Big Tech tossed a veritable hand grenade of controversy into the whole steaming pile of excrement that is the Supreme Court’s history on this issue. Seriously, honest to God, we’ve…we’ve lost a considerable amount of respect for the Supreme Court researching and writing this article. You convicted poor ol’ Walter for calling someone a Fascist for Christ’s sake? Might as well lock up half the freaking country at this point, starting with Don Lemon.

So, what is the point of this exercise other than a long, drawn out excuse to once again point out what an idiot Don Lemon is? Well…you say that like it is a bad thing. Personally, we think that’s enough. The dude called like 74 million Americans fascist Nazi’s after all. But sure, what the hell, let’s make this an “and knowing is half the battle” moment.

OK, so let’s go with this. Perhaps you are wondering just why is The Objective Observer so concerned about free speech? Well, the reality is that it is because we; well, if we are being honest, we say some pretty messed up, crazy shit on this blog site from time to time! Not Don Lemon moronic messed up crazy shit calling everyone Nazis, but still… Seriously, have you read A Cure for the Flu or Vegetarians Are Still Stupid? Admittedly, no joke, we’re “out there”. So, you had better believe that we are concerned about free speech. Luckily though, we have a secret weapon at our disposal. Want to know what it is?

Canada.

You see, WordPress is owned and operated by a Canadian firm. That’s right, SUCK IT! American Big Tech and all of you other censuring, freedom hating Americans, you can’t touch us here! Nyah, nyah, nee, nyah, nyah! And this is how Canada has become more free than America, the “Land of the Censured”.

Honestly, we…we truly hate Big Tech and other American censors. You’re…making…us…defend…Canada! Canada! Of all places! We truly despise you Big Tech, you…you…you…Fascists!! Oh…oh shit…we’re going to jail. We’ll be sure to say “hello” to Walter…

Seriously though, we…uh…we kind of feel bad for Walter.