With great power comes great responsibility.

Ben Parker (Cliff Robertson), Spider-man 2002

Last Thursday, my alma mater the University of Virginia hosted its second annual Oratory Competition. Conducted underneath the dome of Mr. Jefferson’s historic Rotunda, 10 finalists addressed the question, “Is free speech important at a public university in our democracy – and why?”

The winner, third yearman Jered Cooper, began by quoting Richard Nixon’s first inaugural address, as follows:

In these difficult years, America has suffered from a fever of words; from inflated rhetoric that promises more than it can deliver; from angry rhetoric that fans discontents into hatreds; from bombastic rhetoric that postures instead of persuading.

Richard M. Nixon, January 20, 1969

I am sure Jered chose those words to remind listeners the vitriol in today’s political rhetoric is nothing new. He then suggests the United States has seemed “…to have collectively forgotten something that is key to a healthy democracy: free speech.” Words that are right in line with those of a Philadelphia-based non-profit, the Foundation for Individual Rights and Expression (FIRE). Their mission? “…to defend and sustain the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty.”

Sounds admirable. And in many instances it is. For example, FIRE has defended students and faculty at American universities who have been punished for their personal opinions. For example, this year FIRE provided legal services to a Collin College professor who was reinstated after being fired for union advocacy and supporting removal of Confederate monuments.

However, the First Amendment is not absolute. In 1919, Supreme Court Oliver Wendell Holmes, Jr., in response to speech designed for the principal purpose of creating panic, famously opined the right to free expression does not include “shouting fire in a crowded theater.” Neither should we blindly accept advocacy of free speech as absolute. My right to free expression demands that I address the flaws in both Mr. Cooper’s and FIRE’s position on the topic.

First, reread the Nixon quote. He is not advocating free speech as an absolute right. Just the opposite. He is siding with Ben Parker. The First Amendment gives every American “great power.” But it also demands citizens wield that power responsibly. Nixon simply pointed out three instances in which he believed individuals had abused the power and shirked their responsibility–inflated rhetoric, angry rhetoric and bombastic rhetoric.

Second, FIRE’s website makes no reference to responsible oratory or behavior. Are they not concerned expression based on demonstrable lies is not what the founding fathers had in mind? By their silence, do they not see how the “big lie” is the epitomy of Justice Holme’s dire warning that shouting “Hang Mike Pence” in a crowded Capitol Building is not protected under the Constitution.

Third, I would be more sympathetic to FIRE’s efforts if they were more consistent in the application of their principles. In their press release announcing Suzanne Jones’ reinstatement at Collin College, FIRE attorney Greg Greubel proclaimed:

Censorship is un-American. FIRE is proud to defend people of all political views who are punished simply for speaking their minds. And we’re not stopping now.

Among things Collin College cited as leading to her dismissal was the fact she signed a petition requesting the McKinney, Texas city council remove a Confederate statue. Yet, FIRE did not offer to defend three University of Florida professors when they were barred from testifying in a lawsuit to overturn newly enacted alleged restrictions on voting rights. However, FIRE was quick to applaud Florida governor Ron DeSantis when he announced the state’s university system had adopted a free speech resolution based on the University of Chicago’s “Report of the Committee on Freedom of Expression,” often referred to as the “Chicago Statement.” Perhaps FIRE’s new mantra should be, “Watch what we say, not what we do.”

The U.S. Constitution is a unique and wonderful document, a model for governance. But it was flawed. It permitted slavery. Overuse of punctuation makes some passages ambiguous. Those shortcomings can and, on occasion, have been addressed by the 27 amendments adopted since 1789. The most grievous flaw, however, is its one-sidedness. It delineates multiple rights each of us as citizens retain and specifically prohibits government from restricting those rights. “…Congress shall make no laws…”

Yet it says nothing about each citizen’s responsibility not to abuse those rights. Instead, we are expected to align the Constitution with our personal value systems. Let me close by pointing how confused this makes me when it comes to elected offiicials such as Marjorie Taylor Greene who espouse Christian nationalism. The term suggests they are bound by two documents: the Bible and the Constitution. As originalists they believe they must adhere to the written word of the Founding Fathers, yet apply it selectively when it comes to judicial interpretations.

The same holds true when it comes to the Old Testament which they accept as the virtual word of God. If only they did. I guess when it comes to election fraud and the attack on Paul Pelosi, the 9th Commandment does not apply. “Bearing false witness” seems to be their stock-in-trade. Furthermore, based on what we’ve seen the past two years, if God him/herself issued a subpoena for them to bear witness (false or not), they would fight it tooth and nail.

FIRE did not start the fire. But its absolute defense of free speech encourages others to stoke the flames which may eventually incinerate Madisonian democracy.

For what it’s worth.
Dr. ESP