Wednesday, June 23, 2010

Free Speech Addendum; Re: General McChrystal

As we discussed in the last 2 posts on New York Court Watcher, the First Amendment's "no law" language does not really mean no law at all. And the Supreme Court has never so interpreted it. (See Kagan Nomination--Questions for Her & Her Questioners, Part 2 ("Judicial Activism" & the Constitution [Free Speech]), June 18, 2010; Kagan Nomination--Questions for Her & Her Questioners ("Judicial Activism" & the Constitution), June 14, 2010.)

In the very last post, we discussed "no law" specifically with regard to free speech. The First Amendment's declaration allowing "no law abridging the freedom of speech" really means "no law abridging free speech except where pretty darn necessary."

So, e.g., a law prohibiting falsely shouting fire in a crowded theater? Yep, allowed. (Justice Holmes's classic example in Schenck v. U.S., 1919.)
A law prohibiting the incitement of violence with vulgar, inflammatory epithets? Yep, allowed. ("Fighting words;"Chaplinsky v. N.H., 1942.)

And the example I always use in class: a law punishing a soldier saying "F__ you" to a commanding officer giving orders, or other such insubordinate speech to a commander? Yep, allowed. (See, e.g., along those lines, Parker v. Levy, 1974.)

Well, the inclusion of that example in the last post turns out to be quite prescient. The remarks of General Stanley McChrystal and members of his staff were a metaphorical "F__ you" to the President (as in the Commander-in-Chief) and some of the President's closest war advisers.

The remarks, revealed in a story to be published in Rolling Stone later this week,
manifested disrespect, disloyalty, insubordination, and even contempt for the General's civilian superiors. Including, again, the Commander-in-Chief--as well as the Vice President, and the President's National security Adviser (former General James Jones).

The point here is not about how inappropriate the comments of General McChrystal and his staff were. Nor about how, if at all, he and they should be disciplined.

The point is that this is a concrete, real, live, today illustration of how the First Amendment's "no law" does not and can not always mean no law. No, not for soldiers speaking to their commanders. And no, not for wartime Generals and other officers speaking about the Commander-in-Chief and their other civilian superiors. All speech is not and can not always be free from laws prohibiting, punishing, and otherwise abridging it.

The even larger point is that Constitutional language cannot simply be strictly interpreted and applied. Can anyone seriously believe that it should be? (Ms. Kagan? Her Senatorial questioners?) Or believe so and accept the ramifications of such a position?

Well, she and her questioners might respond that the Framers of the First Amendment (and, by extension, of the Constitution itself), didn't really intend an absolute freedom of speech. It's the intent that should be strictly applied. Yep, that's it. That's what we really mean. What were the Framers actually thinking at the time? That's what should be strictly applied!

OK. Let's try that. We'll do so in the next post.

But for now, General McChrystal, Ms. Kagan, and Senators on the Judiciary Committee (some of whom seem impenetrable on these issues), "no law abridging" free speech is not nearly as absolute as it sounds. It has not, and sensibly can not, be strictly interpreted and applied. Most notably with regard to soldiers in wartime.