First Amendment

Most political discussions through personal blogs veer pretty quickly into the zany, but once in a while the zaniness leads to a lot of interesting thoughts and discussions.

Yesterday, Chris, Tony and I were debating a recent student protest where the students blocked access to military recruiters on a university campus. When condemning this protest, Tony argued that the military has a right to "freedom of speech." Chris immediately countered that the military has no right to "freedom of speech" because that concept is centered in the First Amendment and the Bill of Rights only apply to individuals. I disagreed with Chris because I can find no language that states that branches of the government are prohibited from bringing suit under the First Amendment. As a matter of course, branches of the government bring suit under the Constitituion from time to time and the court must adjudicate. So, technically, there's nothing to prevent it (at least according to legal friends I have asked).

But it's kind of a zany argument because it would be hard to imagine a scenario where the military would have standing to bring a suit. All of the individuals in the military could easily have standing as they are all covered, but as an entity, it would be kind of odd for the military to end up as the party to a suit. A number of wacky scenarios were posited.

But what do we really mean by our "right" to "freedom of speech." It is certainly not a positive right to have our message heard. It is only a negative right, the right to NOT have the government outlaw speech.

In the example we were debating, the question arises whether or not the government has a positive right to have its message heard (i.e., have recruiters on campus be free from protests that frustrate their mission). The ruling I noted, U.S. vs. O'Brien, seems to indicate that the government does have a positive right to have its message heard when protests would interfere with its duties under the Articles of the Constitution. Think of it as a kind of First Amendment in reverse - the people shall make no protest that infringes on the right of the government to perform its duties under the Articles of the Constitution.

Now, this is all hypothetical as the students are not being charged and they are not asserting First Amendment rights violations for themselves, but it does seem to locate a positive freedom of speech right for the government in the Articles themselves, not the Bill of Rights. In other words, the government has certain rights to take action to make its message known in the face of opposition from citizens.

What was even more interesting was the U.S. vs. O'Brien has become a precedent for two very interesting threads of constitutional thought. First of all, it has become a strong base for arguments against, for example, flag burning, because one can argue that burning the flag does not meet the O'Brien standard of preventing the functioning of the government. Second, the Court found in O'Brien that it didn't matter that the law was passed with the clear intent of squashing anti-war protest because the government's right to raise an army was being impaired. That's kind of an amazing statement, if you think about it.

I thought that was kind of interesting. Thanks to Grubzilla and others for their legal comments. As always, caveats that I am not a lawyer and I am relying on information provided by outside experts.