Is what you got
Freedom from choice
Is what you want
--Devo "Freedom of Choice"
|How the left reads the first amendment|
Multiple recent events have bombarded us recently which are almost violently challenging basis American assumptions about rights and liberty. For centuries, the USA has been founded on some very basic principles of rights and freedoms. The founding documents of the United States were very strong on the concepts of liberty, laying out foundational principles about what freedoms and privileges all humans enjoy, and the American government is legally ordered to defend.
There have always been those who opposed liberty because of moral or cultural concerns; there were those who said rock and roll music was evil and bad for kids, so it should be silence, there were those who said that blacks could not be allowed in public pools, and so on. And today that continues with those who say that Alex Jones must not be allowed to speak in public.
The common theme has always been the same, those in power, the establishment, oppose voices and ideas which challenge their power and dominance. The people who protested for unlimited freedom of expression in Berkeley grew up to oppose freedom of expression today: what changed is that back then, they were the rebels and today, they are The Man.
And each time, the debate rages over what is freedom of speech, how much the first amendment protects, and what freedoms mean. The debates are usually confusing and confused, with few people on either side who really comprehend the topic very well.
What is at stake here are two sometimes conflicting principles, both stated in the first amendment: the freedom of expression and the freedom of association. Does my freedom of speech trump your ability to choose who you associate with? Does you freedom of association compel me to engage in certain expressions or suppress others?
This sounds terribly theoretical, but it comes up regularly in the news. Can you compel me to bake you a cake? Do you have to allow me to post on your social media site? Can you fire me for what I've said in the past on social media? If you protest, can I stop your protest because I find you offensive and evil? Is speech violence?
FREEDOM OF SPEECH
The more proper way of stating this is "freedom of expression" since the idea is that "speech" can take various different forms. This doesn't just protect words, but art, music, and a host of other expressions which can contain controversial or political import.
Its important to remember that there are two versions of this concept which are used in public life, but often confused or interchanged.
The first amendment contains the requirement by the people that the federal government protect and not attack free expression insofar as it does not materially damage other rights. That is the legal, constitutional version and it only applies to government, not any other. You cannot condemn a private business for violating the first amendment: it is not limiting their actions, only the government's.
The second concept, however is broader. Freedom of expression ("speech," the press, assembly etc) is an innate, God-given, inalienable right all human beings share simply by being human. We all have the right to freedom of expression merely by being human, although that right's expression can be suppressed (you can be silenced, you just still have the right to speech).
Why is this important? As a society, we agree to an informal and unwritten contract: we will give up certain non-critical freedoms in order to gain greater safety and expression of our overall rights. I have the right to express myself however I wish even if it is lying and damaging to people, but we have agreed that it is illegal to slander or libel someone. I have the right to yell "fire" in a crowded theater (as the saying goes) but have agreed that it ought to be illegal to create chaos and riot that may harm people or businesses.
In other words, while the constitutional protection of free expression only applies to the federal government, the right of free expression is universal and should be protected in all peoples in all situations. There is no legal compulsion and ought be no governmental penalty, but the social contract hinges on the defense of human rights and our willingness to tolerate and however reluctantly defend the rights of others.
FREEDOM OF ASSOCIATION
This is also in the first amendment (along with freedom of the press, freedom of religion, and the right to petition the government if over violations of rights, although that last one is pretty well forgotten). It is written in the form of "peaceably assemble" but is again broader than that simple concept. People have the right to associate with who they please -- or do not please -- and the government may not compel them to either.
This means that you can choose who you will work with or play with, who you will hang with or not, who you will allow into your circle of friends or private club or not. Government may not tell anyone that they must associate with -- work with, work for, or otherwise be with -- or must not.
However like all rights, such as freedom of expression, there are societally-agreed limits. No right's free expression may legally violate another person's human rights. You may not use your freedom of association to ban Mexicans from your business: they have freedom of association, too.
INALIENABLE BUT LIMITED
Now remember, the key thing here is that you have the right to do these things, but you do not have the legal freedom to do so. In other words, you can do them, but will face punishment.
What I mean is this: you have the right to slander people all day long, because the freedom of expression is unlimited and innate. It cannot be taken away or limited; it is inherent, an "inalienable" (un-removable) part of being human. But, and this is an important 'but,' your free expression of that right may be limited in some circumstances.
You legally are not allowed to destructively lie about someone, even though you have the innate right to do so. This concept is easier to understand in some examples than others, as we'll see.
Again, this comes down to the social contract: in order to have any semblance of culture and cohesive, orderly society, we agree to hedges on our expression of rights. Those boundaries on our free expression of our rights are to be as limited and few as possible, but must exist for humanity to coexist. Thus, we have libel laws, we have laws about not being able to ban someone from business. Nobody can legally say "we don't serve your kind here" despite having the right to do so.