Monday, August 4, 2008

New Jersey's Assault on the First Amendment

"I disapprove of what you say, but I will defend to the death your right to say it."

That quote is widely attributed to Voltaire, although it may actually be a take-off of Voltaire’s "I detest what you write, but I would give my life to make it possible for you to continue to write."

Either way, Voltaire speaks for anyone who cherishes his First Amendment rights, myself included.

On July 31, 2008, New Jersey’s Supreme Court expanded the reach of the state’s “anti-discrimination” statutes by declaring that “Making jokes and comments about a person's religion can create a ‘humiliating and painful environment’ and be a form of on-the-job discrimination…,” reports the New Jersey Star Ledger. According to staff writer Kate Coscarelli;

The New Jersey Supreme Court said remarks about someone's faith -- even as a form of ribbing or "breaking of chops" -- cannot be tolerated in the workplace.

Clarifying anti-discrimination law, the court declared that a person claiming religious-based harassment does not face a higher legal hurdle than people who claim they were discriminated against because of their sex or race.

"It is necessary that our courts recognize that the religion-based harassing conduct that took place ... in this 'workplace culture' is as offensive as other forms of discriminatory, harassing conduct outlawed in this state," Justice Jaynee LaVecchia wrote for a unanimous court.

The ruling holds the borough of Haddonfield in Camden County accountable for discrimination claims made by a Jewish police officer whose co-workers made crass comments -- claimed to be poor attempts at humor -- about his ethnicity and pasted stickers of the flags of Israel and modern Germany on his locker.

By now it should be obvious where we are headed. The power of legal precedent has been unleashed against our free speech rights and the First Amendment. As a result, we are witnessing the logical consequence…a steady reduction on what we are “allowed” to say. In other words, we are fast approaching the day when American citizens think and speak only by permission, not by right. At the end of that road lies dictatorship.

The First Amendment right to free speech is limited only when it can objectively and reasonably be proven to result in physical harm, or the threat thereof, to others. The proverbial “yelling fire in a crowded theater” is an example of that. (Indirect physical or material harm such as in the case of libel can be addressed through the civil courts.) In other words, only when the rights of others are violated can government properly intervene. Otherwise, the right in a free society to speak out is absolute.

But once we accepted a single breech in the absolute principle of free speech, the die was cast. From campaign finance laws, to “commercial” speech restrictions, to "hate” crime and “hate’ speech legislation (prevalent in Europe), to attacks on lobbyists, to laws against “offensive” speech, to FCC restrictions on “violence” and “obscenity” in media content, to the attempt to revive the “fairness-doctrine”…the government’s ever-expanding encroachment on our freedom is evident. All of these restrictions require the government to determine what is offensive, or hateful, or fair, etc…i.e., to engage in the coercive control of ideas. That kind of power in the hands of the state is inevitably the death knell for any free society.

If any politician were to openly advocate for the repeal of the First Amendment, he would be “tarred and feathered” at the polls. But the First Amendment is being systematically repealed, piece by piece, right before our eyes.

Those who are the victims of offensive or insensitive remarks, or of a “hostile” work environment, have the same free speech rights as the offenders. He can fight back verbally, and enlist the support of co-workers or his superiors to put a stop to it if necessary. He can form an ad hoc group to resort to social ostracism of bigoted offenders. In a worst case, he is free to quit and seek employment elsewhere, or start his own business. And, of course, there is that great strength that is the hallmark of a free society…rational, non-coercive intellectual and social activism. Or he can simply ignore the bigot, which is usually the best course of action except in the most extreme circumstances. As long as the initiation of or the threat of force is absent, the same free speech rights that enables the offender can be employed by the victim (or any motivated person) in a myriad of ways.

Short of instances where an employee’s actual rights are violated, it is the responsibility and right of the employer to determine what kind of behavior is appropriate in his workplace and what is not, and to act accordingly. Yes, some may face the injustice of being fired by an insensitive employer for being a “trouble-maker.” Never-the-less, what one does not have the right to do is to agitate for the negation by governmental action of anyone’s free speech rights, because that would also negate the rights of the innocent, including one’s own. If one person’s rights are violated, then the rights of all are violated.

Loyalty to any principle, including the principles underlying the First Amendment, requires…demands…that the rights of all are protected including those of its worst practitioners. Flag burners, Ku Klux Klaners, Nazis, Black Separatists, Communists, and there ilk all have the right to express themselves, however “offensive” that may be. The same goes for those who engage in verbally offensive behavior or who express discriminatory viewpoints. (The vandalizing of the property of others, such as with the pasting of stickers on another’s locker, is wrong and should be punished. But that is a property rights, not a free speech, issue.) The line that separates the vague and undefinable term “offensive,” or one’s right to discriminate (however irrational), from true harassment is determined by when the initiation or threat of physical force commences.

A government may enact bad policy and law. But as long as people are free to speak up, there is open the possibility for change. If there is a single turning point where a nation tips from freedom into outright tyranny, that turning point is at the juncture that separates the coercive power of the state from the individual’s ability to speak freely. By failing to protect the First Amendment rights of its worst practitioners, we are careening toward that tipping point. As distasteful as it may be to defend the rights of bigots or “harassers” …and it is very distasteful to me…that is what is required to defend the First Amendment. Our Constitution guarantees not what you can say, but that you can say it.

So to paraphrase Voltaire, I detest the kind of offensive and unjust racial, sexual, religious or any other kind of despicable language that is the target of the laws that led to the Court’s decision. But for the sake of the survival of a free society, I will defend to the death your right to say it.

Post Reference 34

No comments: