In the past couple of weeks’ columns we’ve been looking at
the First Amendment guarantee of freedom of expression, particularly freedom of
speech. The first ten amendments to the Constitution, the Bill of Rights, has
always seemed interesting to me. The Constitution, as originally adopted in
1789 addressed the structure and function of the Federal Government and its
relationship to the States, but was thought by many to be deficient in its
protection of individual rights. The Bill of Rights, introduced by James
Madison immediately after the adoption of the Constitution, was aimed at
rectifying that omission.
The primacy of freedom of expression among the rights
enumerated in the Bill of Rights reflects the degree to which this freedom was
suppressed under British rule. It was a remarkable guarantee then, and remains
unusual today in its scope. Even in the freest of the rest of the free world, freedom
of speech is not absolute; restrictions may be loose, but they are there nonetheless.
Here all expression is protected and any attempt to restrict it is subject to the
most rigorous scrutiny before it can be instituted. Error, if it occurs, is
meant to be on the side of greater, not less restriction.
As a result, as we’ve noted, if you are seriously committed
to this most foundational of American freedoms, you have to be willing to tolerate
expression that is repugnant to you – the cost of my freedom to speak is my
having to tolerate yours no matter how objectionable I find it. To again (
(mis)quote Voltaire, “I disapprove of what you say, but I
will defend to the
death your right to say it.”
(Actually, while this quote is always attributed to Voltaire, it was probably
said by a biographer of Voltaire, Evelyn Beatrice Hall).
Because of the breadth of this
guarantee we Americans have never been 100% comfortable with freedom of speech.
We are fine with it for expression we find agreeable or irrelevant to what we
care about, but less so to the degree that what is said or written or depicted
diverges from what we hold dear, and some even go so far as to try to find
reasons to deny the freedom to those with whom they disagree. The FBI,
particularly under the long reign of J. Edgar Hoover, was notorious for
collecting dossiers on those whose speech they (read “Hoover”) found
objectionable, whether it was Dr. Martin Luther King, Robert Kennedy, or anti-war
protestors during the Vietnam Era.
Recently, here in Nevada, we have
seen what may be a recurrence of this Hooveresque behavior on the part of the
Bureau. According to an Associated Press report, the ACLU has filed a Freedom
of Information Act request to find out what federal agents reported learning
about members of the American Indian Movement (AIM) of Northern Nevada and the “No
Bear Hunt” group. The FBI would neither confirm nor deny that they are
investigating those opposed to the Nevada bear hunt. This seems to be based on
some heated exchanges at meetings of the Washoe County Wildlife Advisory Board
and the Nevada Wildlife Commission in March, which included a County Board
member saying he didn’t want to hear from the Native Americans because he didn’t
want to “hear of bows and arrows,” a comment for which he later apologized. In
the FOIA request, the ACLU cited reports by media, community organizations, and
the public that the FBI had been “engaged in a deliberate plan to harass and
intimidate those who speak out against the hunting of bears in northern Nevada.”
One could easily wax satirical about
the FBI and the right to arm bears, but what is going on here? No threats have
been made, the AIM is not Al Qaeda, and despite some history of militancy on
the national level, the Nevada AIM branch has a different outlook and
objectives than the national organization. Humor aside, this seems to represent
a continuing effort by the FBI to suppress any expression they don’t like – J.
Edgar Hoover’s ghost seems to still roam the halls, or at least the minds of
the FBI.
To paraphrase Jefferson, the price of
freedom of speech seems to be eternal vigilance, including watching those whose
job it is to protect that very freedom.
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