Editorial Still ‘NO LAW’ Against Free Speech By BECKY O'MALLEY

Friday February 03, 2006

Thanks, Cindy Sheehan, for giving us a nice hook for one of our periodic lectures on why everyone should love the First Amendment to the Constitution of the United States. Here’s what it says: 

“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.”  

Justice Hugo Black used to holler at doubters “that means NO LAW!” — nothing, for instance, like saying that Cindy couldn’t wear a t-shirt with the number of American soldiers dead in Iraq printed on the front to the State of the Union address. Congress didn’t pass any such law, but that didn’t stop the Capitol police from thinking they had. Even the police have finally, belatedly, figured it out, perhaps helped by the Congressman whose wife was also reprimanded for expressing a pro-government point of view on her own t-shirt. Mrs. Congressperson, however, was not arrested, though Cindy was. 

Subsequent amendments and interpretations have extended the prohibition on restricting speech to all government bodies. The government, in any of its multifarious manifestations (federal, state, local) may not restrict the content of political speech, period, and it has to watch its step in trying to stop other kinds of speech as well. The City of Berkeley learned this lesson a few years ago, expensively, by taking a city law which tried to keep citizens from begging for money in undesired spots, like near ATMs, as far as the federal appeals court. Berkeley’s own judge Claudia Wilken, at the request of the American Civil Liberties Union, issued an injunction against the enforcement of the Berkeley ordinance because it purported to regulate the content of panhandlers’ speech.  

A lot of otherwise politically astute people don’t quite understand the special role of government action in the free speech debate. A discouraging number of well-meaning critics, including members of the anti-war Code Pink organization and letter-writers to this very paper, thought that BART should not have rented advertising space for an anti-abortion ad to a religious group.  

Wrong. BART is a government entity, and under both the freedom of speech and the free exercise of religion clauses it can’t censor the content of its ads. And besides, everyone benefits from knowing what the sponsors of these ads think, even if we don’t agree with them.  

Other countries, even other “democracies,” don’t have the same ingrained reverence for free speech which our own First Amendment ensures. Just this week, Britain narrowly escaped passage of another Tony Blair special, a proposal to make it a criminal offense to incite religious hatred through threatening words or actions, which critics interpreted as banning any criticism of religion whatsoever. Around the world countries left and right, democratic and undemocratic, have repeatedly tried and sometimes succeeded in passing similar regulations. 

Some first amendment purists would argue that dissenters have the right to scrawl rude comments on the BART ads if they want, or even to tear them up. Whether or not dissenters to any speech should be allowed to silence their opponents is a hot, endlessly disputable topic which often comes up in the context of hecklers at lectures on campuses. But the key difference is that individuals tearing up signs and shouting down speakers are not government action, though they may be regarded as rude.  

A lot of people do have a problem with rudeness in discussions. The Washington Post’s ombudsperson expressed shock because e-mail correspondents and bloggers scathingly criticized the paper for implying that Jack Abramoff gave money to Democrats, when in fact he didn’t, though some of his clients did. The comments that were so shocking to the Post were not untrue, obscene or personal, though they were very pointed, sometimes vulgar and occasionally profane. The Post in its horror shut down its blog, but that can’t last forever. This is the new new journalism, where the readers talk back, as any regular reader of the Daily Planet’s opinion pages can attest, and the old media will just have to get used to it.  

We’re used to it, though we sometimes cringe at the vituperative tone of some attacks on our paper. About the only thing we don’t print is personal attacks on private individuals, because we have no way of checking whether they’re true or not.  

Researching this piece did bring to our attention that we received one letter about the Abramoff affair that we failed to print, because we’d mislaid it, as sometimes happens around here. If letters and comments aren’t addressed to opinion@berkeleydailyplanet.com, and sometimes even if they are, they can get lost. In any event, here it is now, from a stalwart supporter of the Planet: 


Your editorial makes it look like Abramoff gave money to Boxer. Abramoff gave no money to Democrats. An Indian tribe did give money to Boxer, including one tribe tied to Abramoff. There is no evidence that Abramoff directed the gift. Certainly the Republicans would like to spin the events to make the Democrats look bad also. Please pull down the Internet posting of your editorial, as it is misleading, clarify your editorial, and re-post it on the Internet. 

—Tim Hansen 


We can’t take mistakes out of our archives, but we can run subsequent corrections which should be found by online searches. Tim is absolutely right—we were misled, as thousands of other irate readers were not, by what we read in the Post and elsewhere, and we appreciate the correction, as we do all corrections.