Using the Constitution’s protections — all at once

In my rights mind
By JEFF INGLIS  |  September 19, 2012

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On the occasion of this week's 225th birthday of the US Constitution, I wanted to embrace our culture's all-or-nothing ethos, by not just exercising all of my Constitutional rights, but using as many as possible all at once. I got to do that, but I also met a person who was using those rights in a much more important way than for the sake of a news story.

It's become commonplace today to hear people — especially those in public office — talking a good game about the Constitution. But let's be honest: Almost nobody in elected office has used many important rights in the document they take an oath to uphold. How come? Easy: If you hold an elected office, it's a near certainty that you've never been arrested for anything — and a whole swath of Constitutional rights only really get a workout when the government's trying to exercise its power to take away your freedom.

I wanted to figure out what's there — and what's not; the Ninth Amendment reminds us that people have rights that aren't listed in the Constitution, that still need to be respected. But shelves and shelves of books have been written interpreting flowery formal 18th-century language and centuries of ensuring court rulings; I wanted to stick as closely as possible to the actual exercise of the rights, though theoretical what-ifs are never far away.

Determining specific protections is not necessarily a political or philosophical controversy. People who believe in reading the Constitution literally will agree that what qualifies as "speech" involves lots more than the sounds made by passing air through human vocal cords — it includes writing, advertising, product packaging, and all forms of art. It even includes other forms of expression, as we saw last year in several Occupy-related lawsuits (including in Maine), where judges found that the act of living in a tent on public land was a legitimate message that should be protected from undue government interference. (But as those rulings also spelled out, there are no rights that are completely absolute and utterly free from government intervention. In the Occupy cases, usually it was the government's duty to enforce sanitation and fire-safety rules that ended up trumping the protesters' rights to express themselves through tent villages.)

Armed with my research, and a checklist of my rights, I set out to Monument Square to give them some exercise.

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FREE SPEECH

Kathleen Johnson, a Portland mother of five, was sitting on the Congress Street side of the curbing around the monument of "Portland to her sons who died for the Union," holding a sign reading "Stop Maine's DHHS from stealing our kids! They lie to take them and they create more lies to keep them!" Her view, critical of a government agency (the state Department of Health and Human Services), is protected under the First Amendment.

In North Africa on the same day as I spoke with Johnson, riots flashed around US and other Western embassies and diplomatic missions, clashes that had already cost the lives of four Americans, including the US ambassador to Libya. Relatively inexperienced with speech not authorized by a government (after decades under dictatorship), protesters objected to a film insulting the Prophet Muhammad — by targeting the government of the country from which that film had originated. Here, by contrast, we assume that if something is published, it hasn't gone through a government censor (unless it's actually issued by the government, whose censors are often — and often laughably — called "public information officers").

Free speech seems simple: Have a thought, an opinion, a piece of information, a concept, or any other tidbit — and say it. Or write it, or sing it, or paint about it, or camp in a park about it. Or do nothing: Your right to remain silent is here, too. Free speech doesn't mean free of consequences, though. There are legal limits, such as criminal and civil penalties after the speech has occurred for incitement to riot, threats, slander, and libel; private jurisdiction — which is how malls can ban pamphleteers; and hate-crime limits, which in Maine mean an assault can become more serious if there are racial, gender, or sexual-orientation epithets hurled along with punches. But the most important free-speech restrictions to the people I spoke with (and to me personally, as I reflected) were social, not legal: the risk of alienating friends or relatives, of being seen to have bad manners or poor taste. In extreme cases of national security or other serious danger, the government can seek to prevent you from speaking.

This shouldn't silence people with legitimate points of view that simply differ from government perspectives — and indeed, Johnson says she has met several supporters as a result of her sign, which she displays in Monument Square a few days a week for a couple hours at a time, in between other obligations.

FREE PRESS

What she's doing would have, in colonial days, also qualified for protection under the First Amendment's provision of a free press ("speech" still meant the vocal kind then): She had created a sign and was displaying it in public. Today that extends to online expression as well as many forms of news media (though notably not TV or radio stations that use the public airwaves; the government regulates the users of that public resource to ensure it is, at least broadly, used for the public good). It can also be limited, in extreme circumstances, by interests of national security, though usually government officials use persuasive power, rather than coercive effort, to forestall publication of sensitive information.

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