John Whitehead's Commentary

“Congress shall make no law…abridging the freedom of speech…or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”—First Amendment to the U.S. Constitution

The United States has historically stood for unfettered free speech, which is vital to a functioning democracy. Unfortunately, the tendency on the part of government and law enforcement officials to purge dissent has largely undermined the First Amendment’s safeguards for political free speech. The Occupy Movement, and the government’s response to its encampments in public spaces, perfectly illustrates the fact that there is no longer any such thing as unfettered free speech in America today.

The very fact that protesters have had to resort to occupying various public spaces in order to open up a national dialogue about issues of concern says a lot about the state of the First Amendment, or rather the sad state of it. Moreover, the heavy-handed police response to the Occupiers shows the degree to which the corporate state will go to silence these protesters and discourage any further uprisings.

There was a time when communities had town squares—public areas where people gathered to exchange information, ideas, and do business. These served a vital function in America’s history, allowing opinions and ideas—whether good or bad—to be aired and debated. Yet as areas once open to the public have been overtaken by state and corporate interests, traditional public forums for free speech have all but disappeared. Town squares have been replaced by private shopping malls and parking lots, neither of which are freely accessible to individuals hoping to voice their views. Consequently, protesters, even those not engaging in civil disobedience, are shut out, sometimes forcibly, from public areas, while attempts to peaceably assemble are overburdened by government regulations and permit requirements.

Furthermore, the court-sanctioned use by the government and private entities of so-called “free speech zones” to isolate protesters, even in public parks and college campuses, makes clear that the right to speak freely in public has eroded. Concentrating, monitoring and minimizing the effects of protests are the real reasons for using designated protest zones. Obviously, protesters are only perceived as dangerous because their message challenges the status quo. It’s the message that is feared. Thus, efforts to confine and control the dissenters are really efforts to confine and control the effect of their messages, whatever those might be. This is true whether they’re challenging environmental policies, free trade agreements or the political campaigns of candidates running for public office.

Martin Luther King, Jr. recognized the importance of being able to come together in public and address social, political, and economic issues. He knew that there was more to American democracy than simply waiting for Election Day. The ability to come together and hash out differences is instrumental in pushing government officials to respond to the wishes of the people. Without a mass mobilization of individuals during the Civil Rights Era, we would be living in an entirely different America. Just imagine if the hundreds of thousands of participants in the 1963 March on Washington for Jobs and Freedom, which culminated with Martin Luther King, Jr.’s “I Have a Dream” speech at the Lincoln Memorial, had been forced into free speech zones. There likely would not have been a 1964 Civil Rights Act.

The right of political free speech is the basis of all liberty. It’s the citizen’s right to confront the government and demand that it alter its policies. But first, citizens have to be seen and heard, and only under extraordinary circumstances should free speech ever be restricted.

Historically, societies have always benefitted when the right to speak freely was secured rather than curtailed. These free speech forums provided groups and individuals of all political and ideological persuasions a physical space to be able to come together to speak their minds.

For example, the agora, the center of public life in ancient Greece, found its most spectacular display in Athens. Public life emanated from the agora, with courts, commercial enterprises, and libraries adorning the square. People assembled in the agora to talk politics, religion, and business. The Roman Forum had a comparable function during the time of the Roman Republic, allowing citizens to engage civic and business leaders and discuss the issues of the day. The Forum housed marketplaces, courts of law, and religious temples. Both of these public areas were used with frequency, allowing citizens to keep abreast of current events and debate with their neighbors.

Moreover, many of the most important actions during the American Revolutionary period took place in public areas. In fact, it is where Americans mobilized themselves against British tyranny. For example, Faneuil Hall in Boston (sometimes referred to as “the Cradle of Liberty”) is where the colonists protested against the Sugar Act in 1764. On March 6, 1770, Americans gathered at Faneuil Hall to recount the events of the Boston Massacre. It was there that colonial radical Samuel Adams gave an impassioned speech demanding that the lieutenant governor remove all British troops from the town.

However, somewhere along the way, Americans lost touch with the impact and importance of these free speech forums. For example, Faneuil Hall, once the staging ground for revolutionary fervor, now requires individuals hoping to use the venue to submit an “Event Application” form at least thirty days in advance of proposed events.

This erosion of free speech started with the upheaval of the 1960s. The protests against the Vietnam War frightened many establishment figures and led to the creation of “free speech zones.” Now free speech zones have come to dominate the political landscape. George W. Bush, for example, used them excessively during his first term as president and both the Democratic and Republican parties have used them at various conventions to mute any and all criticism of their policies. Perhaps the most egregious instance of imposing a free speech zone upon protesters came in 2004 at the Democratic National Convention. It was there that Boston Police constructed a cage of jersey walls and chain link fences out of sight of the convention center which protesters were huddled in to.

Caging people who want to exercise free speech goes against the entire concept of our Constitution, the Bill of Rights and what the revolutionary generation stood for. When political protest is caged, it's not just the rights of a few protesters that are at stake. The very definition of freedom is in danger. Freedom cannot be exercised from within a cage.

Nor should the centers of power be shielded from the citizen. Our representatives have a contractual, constitutional duty to make themselves available to us. Unfortunately, politicians have gone to great lengths to evade this fundamental duty in recent years. In fact, keen to avoid voter rage, Democrats and Republicans have come up with a plan to keep things “civil”: that is, avoid town-hall meetings at all cost, make minimal public appearances while at home in one's district, only appear at events in controlled settings where they're the only ones talking, and if one must interact with constituents, do so via telephone town meetings or impromptu visits to local businesses where the chances of being accosted by angry voters are greatly minimized. What this does, of course, is effectively do away with any pretense that we have a representative government.

No matter what your political persuasion may be, every American has a First Amendment right to speak their mind, gather together and protest against government programs with which they disagree. As such, there are really only three ways to deal with a government that doesn't listen to the voters: one, you can be uncivil—showing up at a controlled event and shouting, heckling, and creating a disturbance and otherwise raising hell; two, you can engage in civil disobedience—staging sit-ins, refusing to pay taxes, etc.; or the final option, which is no real option at all and which we don’t want to see happen, is violence.

We’ve already seen the first option, incivility, exercised more frequently, especially in the wake of the heated town hall meetings over health care reform where outspoken Tea Party activists made headlines for heckling politicians and causing disruptions. Their “uncivil” behavior prompted a number of so-called free speech advocates to start propounding about the need for “civility.”

We are seeing the second option played out now in the Occupy protests, as people resort to creating shanty towns and occupying parks to get attention. The response by government officials has been to send in the police, armed with rubber bullets, sound cannons and pepper spray.

Unless we act now to preserve the freedoms enshrined in the First Amendment, not only the right to freedom of speech and assembly but the right to petition one’s government for a redress of grievances—and by that I mean something as simple as picketing in front of City Hall, then I fear we will see the third option played out, outright violence, which will play right into the government’s hands and the institution of police state tactics.

What can you do? Right now, the best thing you can do is sound the alarm. Form local citizens groups in your community. Educate your neighbors on their rights and inform them about the grave possibilities we face as the police state aura grows stronger. Continue to voice your discontent to your representatives at the local and state levels, and in Congress. Most of all, stay informed and exercise your right to redress your grievances with the government while you still can. It’s fine to occupy public parks, but it would be far better to occupy city council meetings and congressional offices.        

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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