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Freedom of Expression May 23, 2006

Posted by Matt Hurst in Uncategorized.

In it’s short history the United States has consistently made efforts to curtail the Constitutionally protected freedoms of expression in times when it is faced with a new threat to it’s national security. John Locke’s social contract theory establishes the basis for these kinds of restrictions on the consent of the governed, who give the government the authority to govern over them in return for their personal security and the promise to safeguard their natural rights. For instance, Abraham Lincoln used his power of executive order to arrested the publishers of a paper for a story about a renewed draft call, as they thought it was likely to cause riots – a clear violation of the freedom of the press. But as the mood of the country changed after the war, the same government established the Fourteenth Amendment to make sure all states enforced equal application of constitutional rights of its citizens.
As elected representatives of their people, the Congress should represent the collective mood of their citizenry during their term in office, and so the laws they make come to reflect this sometimes. When representatives make laws that curtail freedom too much, the citizens can respond by electing someone else. A good example is the Alien-Sedition act, which was created only in anticipation of war with France (which never happened obviously). Although the courts upheld the conviction of a newspaper publisher who made seditious statements against those in power, the enforcement of this law became a major motivator behind the overturning of the Federalist party in favor of Jeffersonian Democrats in the next election cycle. At other times a law that curtails freedom is difficult to or the government is unwilling to enforce. The Smith Act that punishes seditious speech was created in expectation of WWII, and later used to prosecute communists in response to the new threat posed by Soviet expansionism. In time the courts significantly narrowed how the law could be applied because of the challenge it posed to the Constitution, and by the 1960s although the threat continued the government was unwilling to enforce the law against those protesting the Vietnam war – a change in the pervasive view of the balance of freedom against national security.
If Chafee’s opinion that “In war time..speech should be unrestricted by the censorship or by punishment, unless it is clearly liable to cause dangerous and direct interference with the conduct of war” is true, then the US has a poor history of balancing the two opinions. With each succeeding new threat to national security comes another effort to curtail the freedoms that are Constitutionally protected. The Patriot Act is just the latest example of a law made that is now being questioned by the populace. But in a democracy the will of citizens to subject themselves to laws that limit their free expression is largely the product of their mood, and the decision to return freedoms also their responsibility at the ballot box.


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