God bless free speech.
It is what allows columnists — or anybody else — to write whatever we want without fear the government is going to haul us off to jail. In Russia, you can go to prison for calling their war against Ukraine “a war.” In China, you get sent to a camp for adhering to certain religions.
Free speech is so important in the United States, it is the First Amendment to our Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” Not only am I allowed to air the truth as I see it — Donald Trump is a traitor who should be in prison — but all sorts of salacious material are permitted. Courts decided, grudgingly, that offensive artworks and obscene comedy sketches and extreme pornographic videos are also free speech and cannot be banned.
There are, of course, exceptions. Free speech doesn’t permit you to shout “Fire!” in a crowded theater. I didn’t just grab that example by accident. During World War I, a pacifist was arrested for distributing a leaflet claiming the draft was unconstitutional. In upholding his conviction in 1919 in Schenck v. The United States, Justice Oliver Wendell Holmes wrote:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... The question in every case is whether the words ... create a clear and present danger ... that Congress has a right to prevent.
A half century later, the Supreme Court decided we are a great enough nation that our freedoms extend even to resisting a war we are currently fighting, and Schenk was dialed back. Now to be illegal, speech usually must be libelous, or promote imminent lawless action — you are not free to deliver a speech urging your neighbors to kill someone.
Nor can you own child pornography, and it’s important to understand why. Child pornography is among the most restricted material in our society. You don’t have to produce it or sell it to commit a crime; it’s a crime simply to possess it.
Why does child pornography merit such a unique level of suppression? I’ll give you a hint: it’s called “child pornography.” Children cannot consent to sexual acts with adults and are severely damaged by being forced to do so. Child pornography hurts children, so we suppress it with all the legal might our nation can bring to bear, even if it infringes on fundamental freedoms.
To summarize: an essential part of the Constitution gives Americans a right, but that right is limited when the free exercise of it harms children.
So why all the trouble with guns? Why does a logic universally accepted regarding the First Amendment completely fall apart when we get to the Second? The harm to children from guns far exceeds the harm done by child pornography.
“Over the last two decades, more … children have died from guns than on-duty police officers and active-duty military combined,” Joe Biden said in his June 2 speech on the need for sane gun laws. “Think about that: more kids than on-duty cops killed by guns, more kids than soldiers killed by guns.”
Unlike the words of our previous president, that’s not only true, but an understatement.
The far right have a twisted logic about gun laws that goes like this: the Second Amendment is such an absolute value that even the most common-sense restriction — don’t sell assault rifles to teenagers — is a step toward the bogeyman of total confiscation. Ban .50-caliber bullets, their thinking goes, and the black helicopters are on their way.
As they repeat that, over and over, remember: by their reasoning, child pornography should be legal, out of respect for the First Amendment, the harm it causes children shrugged off.
Among Republicans, 44% say schoolroom slaughters are the price we pay for living in a free society — ignoring that, a) if kids are being regularly gunned down at school, then this isn’t a free society, and b) we already create all sorts of exceptions to our rights in order to preserve a sane and humane nation. We already do so with guns — no machine guns, no sawed-off shotguns. We can do more. As another Supreme Court Justice, Robert H. Jackson, once wrote, the Bill of Rights is not a suicide pact.
