The Freeware Hall Of Fame
Presents:

United States Myths - and their realities


By Rey Barry

"Americans have free speech"

Among our bundle of exaggerations pleasant to believe, none is more alluring or deceptive than "Americans have Free Speech."

It's based on the 1st Amendment to the US Constitution that says "Congress shall make no law ... abridging the freedom of speech, or of the press ..." The 14th Amendment makes that applicable to the states also. We focus on that and look no further, missing the other 90%.

The truth? If you hold a protest sign on the steps of the US Supreme Court building, you will be arrested, fined, and jailed. Why? Because the chief justice totally abridged freedom of speech on his steps. He can do that because he's the Judiciary, not Congress.

The 1st Amendment doesn't apply to the Judiciary.

Suppose you were a sailor aboard the USS Seawolf on July 17, 1996, and suppose you witnessed a missile firing that brought down TWA Flight 800. You cannot ever reveal anything about it without fear of serious retribution. The Navy is under the Executive branch which can abridge freedom of speech at any time, for any reason or none, and be unaccountable to anyone.

The Free Speech Amendment applies only to legislative bodies, and they have many ways around it.

Away from government we have even less free speech. If you say, "That's a Japanese car" that's ok. But if you say, "That's a Jap car," you will be warned not to. If you do it again you'll probably be fired. Censorship has a new name, political correctness.

Kids who talk in a chat group or in email can be arrested, tried, convicted, and jailed, as happened recently to teens in Virginia and other states. They did nothing but talk. There were no acts committed or even planned, merely thoughts expressed. Expressing wrong thoughts is now a crime in the US.

You might think school kids are told they have free speech to trap them.

The First Amendment does not confer ANY right of speech. What it does is place a limit on the power of one branch of government, the Legislative, to control speech. And even that limit is as much myth as reality now.

We see it every day. Government workers called judges impose gag orders on everyone in the courtroom whenever they like, and are answerable to no one but fellow government workers.

The entire Grand Jury system, federal and state, operates in secrecy. Free speech? Anyone revealing more than a name and decision can be jailed without recourse and without end. And sometimes the agenda and even the decision are secret. There's no freedom whatever.

The Grand Jury system is an autocracy, government by one individual subject only to a jury finding that comes from the prosecutor's side of the case, because there is no other side presented.

New York State chief judge Sol Wachtler was famously quoted by Tom Wolfe in "The Bonfire of the Vanities" that "a grand jury would indict a ham sandwich, if that's what you wanted." He would know; he, himself, was indicted.

Recently California enacted a law keeping investigations of police misconduct away from Grand Juries. One state out of 50 admits Grand Juries are incompatible with justice.

The Executive branch routinely demands secrecy, puts embarrassing documents out of the public eye, can prosecute anyone who violates its self-serving "security net."

Departments in the Executive Branch are free to limit your speech if bureaucrats choose to. One example: real estate salespeople can be prosecuted for revealing to an inquiring home buyer that someone in a house had AIDS.

This isn't a privacy matter. No one need be named. Merely confirming that someone in a dwelling had AIDS is prosecutable. HUD, the Department of Housing and Urban Development, is free to stamp out free speech because the First Amendment doesn't apply.

Where else doesn't it apply?

The military, an arm of the Executive Branch, has active total control of the speech of its members on active service, and near-total control of veterans who know secrets.

In the daily world such as the family dinner table or at a baseball game, an Internet chat room or the workplace, we have only the freedom of speech the person in charge allows.

The First Amendment has no control over limits on speech you set where you make the rules. If your chauffeur or your secretary or your shop foreman tells you off you can fire her. She has no Constitutional protection.

If the father of a Little Leaguer uses language the umpire doesn't like, he can eject dad from the ballpark. Dad's speech isn't Constitutionally protected because the Little League is not under Congress.

Very few of our daily activities have an assurance of free speech.

And in its few "assured" areas the First Amendment means less than we think. Law makers have passed thousands of laws abridging freedom of speech.

None of these is secret. We know them. They are important to our lives.

For example free speech ends at a line beyond which it's called libel and slander.

Free speech ends at a line beyond which it's called invasion of privacy. That line moves with the times. It moved a lot when the NY Times won a case establishing that public figures have far less privacy than ordinary people.

Free speech ends at a line beyond which it's called commercial speech. There are bookshelves of laws passed by Congress and the states, and libraries of rules made by government departments, limiting commercial speech.

Our run-amuck intellectual property laws limit speech. If you want to sell Uncle Fred's vintage English riding boots on eBay, don't expect to call them "shabby chic." Designer Rachel Ashwell owns the term "shabby chic", and is a subscriber to eBay's Verified Rights Owner (VeRO) program. If a search robot from eBay or Ashwell spots "Shabby Chic" in your auction headline, eBay must cancel your auction due to trademark violation.

Congress gave Ashwell the right to steal the term shabby chic for itself. In fact thousands of Ashwells are allowed to steal thousands of everyday terms, thanks to congress.

(The US Congress is mostly indifferent conspirators on the take, but you know that. As Mark Twain put it, Congress is the country's only criminal class.)

Free speech? Copyright and trademark laws limit your right to use your own name if it's Howard Johnson, or Thom McAn, or Lillian Vernon, or any of the thousands of names corporations copyrighted or trademarked.

Free speech can put you behind bars if it's "fighting speech." You can be prosecuted and jailed for provoking someone.

Free speech can end in a jail cell if it can be called "inciting to riot." It can end in a cell if it's called "reckless endangerment."

Free speech ends at any arbitrary line Congress draws "in the public interest," as it defines that. In Florida an 86-year-old grandmother was handcuffed and jailed for mouthing off to an over-zealous airport baggage inspector, "What do you think I have in there, a bomb?" That was not a recent case: it happened in 1988. Airport speech censorship has always been totalitarian, but far more obvious since 9/11.

Children are suspended from government-run schools for writing on walls. Free speech ends at defacement. They are persecuted if something they write disturbs an administrator. A teenage artist who included an anti-social poem in her painting was required to undergo three months of counseling. We read about five-year-olds suspended from kindergarten for pointing a finger and saying, "Bang."

The Internet and shrink-wrap software licenses are loaded today with bars to free speech, not always legitimate. McAfee's claim you can't publish reviews of their products didn't stand up in court, but someone had to waste thousands of dollars to win that case.

At one time, Microsoft vowed to stop anyone from publishing benchmarks of their products without permission.

Peremptory, over-reaching claims like that are now the norm as Congress and the courts collaborate ever more with corporations and against people. The Digital Millennium Copyright Act (DMCA) nullified the First Amendment by providing for take-downs, fines, and prosecution at the will of any holder of a copyright.

Just like with red-light camera traffic violations, you are presumed guilty unless you can prove otherwise at your expense. In the same vein, the Supreme Court ruled in 2014 that you are legally responsible for meeting every requirement found in a company policy of 100,000 words of turgid, alien, legalese available to you only in visually challenging micro-type.

Local governments and institutions, universities especially, elevated the censorship of political correctness into law or rules. They dictate that speech which might possibly hurt someone's feelings or be taken as insulting is grounds for fining or firing or expulsion.

"That's a Jap car" rather than "That's a Japanese car" will bring instant reprisal in academia especially. In some Nebraska schools children cannot be called "boys and girls" or any other gender terms on the chance some may feel omitted.

Those are just two of the mildest examples of insipid political correctness. No one need be affected. Someone just has to say it could be taken wrong to make all the good sense in the room vanish. Political correctness is intentional censorship, the opposite of free speech.

One of the most egregious PC oppressors is the Univ. of New Hampshire. They denounce using the word "American" for being "insensitive to South Americans," "seniors" rather than "people of advanced age", "rich" should be "person of material wealth", and "poor" to "person who lacks advantages that others have."

Of course those people are morons. And they are the future. George Carlin is the expert on this.

Speech in the US is free only if it's within approved limits. It's only thanks to the American Civil Liberties Union there aren't more limits, because government is forever erecting barriers the ACLU knocks down.

Many nations have as much freedom of speech as we have or more. They didn't in 1776 but they do today. They are going in one direction while we go in the other.

A French court recently struck down a string of speech restrictions American software publishers tried to impose there. They are the same restrictions our Congress gave publishers the power to impose on us.

The First Amendment was written for people with the Pioneer Spirit. We are people with the Pioneer Stereo. Times changed and the interpretations of the First Amendment changed.

In the 21st century, the Supreme Court affirmed the right of Topeka, Kansas, Westboro Baptist Church dip-shits to disturb the funerals of soldiers killed in battle. The same court invented a right for those with huge sums of money to funnel it to politicians anonymously and without limit, defining as speech what is intended as bribery.

Watching the court side with evil resulted in surveys showing again and again the First Amendment would not today be ratified by anyone: not Congress, not state legislatures, not the people.

Elections prove Americans don't really care because we re-elect lawmakers who don't really care. The founding fathers believed their heirs would guard constitutional freedoms, and gave us the right to bear arms for that. They were aware that government could betray us. They couldn't foresee our being too distracted to care.

The founders treated signing a petition as the first step to achieving the will of the people; we treat it as the last because we have no courage to follow through. They were yeomen with little to lose; we have middle class values.

In Thomas Jefferson's hometown there's a huge Free Speech Chalkboard on the downtown mall where people can write what they like. It all gets erased every Thursday. The concept that institutional graffiti is an affirmation of free speech is not mentioned by Jefferson, but he understood symbolism.

Jefferson also understood the importance of openly criticizing those in power. He realized it was a powerful government survival tactic. Letting people blow off steam keeps resentment from building up. Right now you're angry and motivated; write it down and tomorrow you'll be cool.

Choose another myth?

Introduction - How these myths began
"The US separates church and state"
"Justice will triumph"
"We have self-government"
"You cannot be forced to incriminate yourself"
"Americans have free television and radio"
"No Man is Above the Law"
"Corporate political contributions aren't bribery"
"The best is yet to come"
"Abner Doubleday originated baseball"

The name Freeware Hall of Fame is Service Marked by Rey Barry (rey at cstone.net)
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