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The Right to Free Speech

Next to the Declaration of Independence, no document has influenced the world more than the Constitution of the United States of America; a document drafted by the Second Continental Congress, in Philadelphia on September 17, 1787.

Broadly speaking, the Continental Congress felt that, as written, the Constitution could easily lead to tyranny and on March 4, 1789, in the City of New York, the 1st Congress of the United States passed 12 Articles as proposed amendments to the Constitution of the United States. The proposed amendments required ratification by three-fourths of the States. Article I and Article II dealing with Congressional representation and compensation of Congress failed to be ratified by the needed three-fourths; however, the remaining ten Articles were ratified and became the first Ten Amendments to the Constitution of the United States; subsequently known as the Bill of Rights. It is the First Amendment to the Constitution that is the subject of my article.

“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 redress of grievances”

The First Amendment guarantees that we, as citizens, have right to speak freely; however, nowhere in its text does it indemnify us for free speech. Although an individual’s right to free speech has generally been upheld by the courts, in matters the courts perceive the individual acting as a citizen commenting on issues of public interest (Pickering v. Board of Education); it is by no means Carte Blanche, and you can be held accountable for things that are said. Some of the more revealing cases involve the termination of employment by an employer for cause in both private and public sector positions.

One case that comes to mind is BONN v. CITY OF OMAHA U.S. Court of Appeals, Eight Circuit. This is a case in where Tristan Bonn, acting as the Public Safety Auditor for the City of Omaha, was terminated for filing a report critical of the Omaha Police Department. Bonn claimed Civil Rights violation and freedom of speech. Both the lower and appellate courts upheld the termination. Other interesting case law Smith v. Frouin, 28 F.3d 646 (Illinois 1994) involving a Chicago police detective’s complaint about a smoke free zone.

What these cases reaffirm is that although The Bill of Rights guarantees the individual a right to free speech it does not indemnify or hold harmless the individual for the consequences of that speech. Furthermore, they illustrate that courts have maintained a balance. The moral of the story has always been “know what you’re talking about and choose your words carefully;” remembering that I can’t keep you from saying something but I can hold you accountable for what you say.

-Sal Palma
twobirdsflyingpub.wordpress.com

13 Responses to “The Right to Free Speech”

  1. Mike Matheson says:

    I understand and appreciate the importance of these documents, but I think this statement may be a tad over-reaching:
    “Next to the Declaration of Independence, no document has influenced the world more than the Constitution of the United States of America”

    It’s not hard to recall documents with a bit more of a historical/global impact: Magna Carta Libertatum, Code of Hammurabi, Declaration of the Rights of Man and of the Citizen, and obviously religious texts such as the Torah, the Old Testament and New Testament, and the Qur’an.

    • Sal Palma says:

      Mike you’re obviously a well schooled individual, but unlike the Magna Carta Libertatum, which I’ve studied in its original Latin, The Constitution of the United States was not a document foisted upon monarchs and potentates requiring them to recognize subjects as free men. It stands unique in that it was drafted by free men under a representative form of government, and with all of its imperfections it is not subservient to anyone individual or groups of individuals.

      That was my point.

  2. Kevin says:

    The author of this article does not understand the Bill Of Rights. The way this author thinks is the reason potential whistle blowers stay silent. The whole ” you will be held accountable” aspect is horrendous and that is not how the document should be interpreted. If something is corrupt, you should speak up. If something is wrong, you should point it out. Not silence people because they are afraid of being held accountable of breaking some silly law to hide what really goes on. I think the author needs to think about what Liberty really means. We are temporary beings, and we should be able to say what ever it is we want to say. People should be allowed to be critical.

    • SSD says:

      Kevin,

      You don’t seem to be able to differentiate between the Government and the public. The First Amendment protects you from the Government but not from yourself. Based on your comment, I don’t think you have a firm grasp of the First Amendment.

      SSD

      • Kevin says:

        SSD,

        http://youtu.be/r9-3K3rkPRE Check out this video about William Binney, a 32 year veteran of the NSA, who spoke up about the NSA violating your 4th amendment rights. He got raided by the FBI for speaking up. IF something that is corrupt is classified how will the beans be spilled? The guy in this video actually cares about peoples rights. I understand your workplace can fire you for saying remarks not agreeable to the company or just plain belligerent. A private company and the government are different. The government is the people and paid for by the people. So the government should do what is best for the people. As in the case of BONN V CITY OF OHMAHA. I believe Bonn should not have been terminated for being critical of the police department. If no one is critical, nothing gets changed. People ESPECIALLY in government need to be critical of everything that is going wrong or being wasted.

    • UVRC says:

      Kevin,

      Further to what SSD wrote. You can blow the whistle on corrupt practices, but that doesn’t save you from libel or slander charges if any of your comments regarding others are false and injurious.

    • Sal Palma says:

      Kevin:

      Liberty simply means that you are free of restriction and duress to pursue your own path. James Holmes of Aurora, CO notoriety was free to choose his path; however, the path he chose was to murder innocent people. He will therefore be held accountable. The fact you are free to choose does not relieve you of responsibility.
      Employees have a responsibility to their employers it does not mean they have to collude with or be accessory in the commission of a crime, but when you say something, knowingly or not, detrimental to the employer you may very well be held responsible for the consequences. The courts have been clear on that and have taken a balanced approach in their rulings.
      Read the cases when you have a chance.

  3. reverend says:

    Well Said! Kudos! Thank you sir!

  4. Mike says:

    I’m sorry, but the author’s view of the 1st Amendment is exactly the opposite of the intent and meaning of the 1st Amendment. The whole concept of freedom of speech is that a person can speak out WITHOUT fear of retaliation. If you have to carefully pick and choose what you say out of fear that someone might disagree or be offended by your words, then that is definitely NOT freedom of speech. That is a decidedly liberal point of view. The idea the author presents is the whole philosophy driving this idiotic wave of political correctness now infecting this country.

    • Sal Palma says:

      Mike:

      Most liberals that I know feel exactly as you do. They think they can act, protest and say whatever they please and be indemnified by the 1st Amendment. Take the flag burning issue. Put let pursue that just a little further. The 1st Amendment, through the freedom of speech and expression clause allows you to speak freely – so you go out and burn a flag. You are free to do so; however, in the process of burning the flag you burn down my store, you are liable for that. The Constitution and Bill of Rights allows you to choose your path but does not indemnify or hold you harmless for the path you choose.

  5. Kevin says:

    Sal, your argument is still incoherent. Your inclusion of James Holmes misses the point. We are talking about freedom of speech. Not mass murder. It seems like the people here are stuck on the division of right vs left. That gets us nowhere. You think liberals protest so you are against everyone who protests. We should be proud when people protest. People should flex their rights. We should not fear of retaliation. I believe in maximum freedom and minimum government. I thought most military dudes did too. We supposedly fight middle eastern people for these freedoms, lets enjoy them and not try to restrict everything.

  6. Brearly Mason says:

    Kevin,
    You need to study the Dixie Chics and Susan Sarandon.

    Liberty is not easy, it is not suppose to be, it comes with a large a degree of responsibility. This large degree of responsibility is generally why people of weak mind and body end up giving it up.