More and more voices around the world are calling for dialogue as a 
means of settling differences peacefully. Perhaps our nation will at 
last come to the realization that dialogue is precisely what 
constitutional free speech is all about. 

The word speech in the First Amendment does not mean one-way utterance 
as it perhaps does today. Rather, it means dialogue, willing and 
cooperative discourse about governmental issues. The word speech cries 
out for interpretation in the context of the times when the First 
Amendment was written. In those days people were frequently heard to 
say, "I wish to have speech with you." Shakespeare wrote about people 
being "in speech" with each other, as did Sir Walter Scott in Ivanhoe. 
Helen Hunt Jackson in her 1880 best selling novel Ramona (later made 
into a movie) tells of individuals "seeking speech" with others. 

The phrase "the freedom of speech" (note the definite article) seems 
first to have appeared in a British Bill of Right of 1689, following a 
bloody war where it referred to Parliamentary debating. It means 
speech-making before willing listeners, two-way discourse, communication 
and discussion. 

Previously the king had sent his soldiers into Parliament arresting 
members for debating matters over which he, the king, claimed sole 
decision-making authority, like making war or whom his son should marry. 
Tyrants throughout the ages have sought to stamp out gatherings of 
people discussing and debating issues about their own welfare and about 
the common good. 

But our Constitution does not uphold any right or freedom to speak or 
express oneself irrespective of the rights of others. It declares 
no right whatsoever to inflict views and opinions - and sales pitches - 
on unwilling ears. Or imbed "messages" (political, religious, or 
commercial) in anothers brain cells. Nor to slander, or disturb 
a church service or shout fire falsely in a crowded theater, or to 
harangue an unwilling audience. There is no more a right to intrude on 
anothers sensibilities than there is to blow smoke in someone's face. 

The students who have brought suit against Stanford for attempting to 
moderate their conduct towards others should be advised that our Bill of 
Rights guarantees rights against government, not against citizen peers. 

"The freedom of speech" -a process and not an individual right at all 
- was a well established concept in early America. Not only had this 
process been declared free in the British Parliament, but the same words 
appear in our own Articles of Confederation. Moreover, the same words in 
essence were written into the original U.S. Constitution to protect our 
lawmakers, at Article 1, Section 6, providing that "For any Speech or 
Debate in either House, they shall not be questioned in any other 
Place." 

James Madison, who authored the First Amendment, merely extended the 
same freedom to the state legislatures, the existing town meetings, and 
to the citizenry at large. 

Personal conduct, whether friendly, hostile, or unbecoming, is not dealt 
with in the First Amendment and no one can show original intent in this 
regard. The founding fathers were nevertheless concerned about manners 
in the forum; the first thing they did when convening in 1787 to write a 
constitution was to forbid "indecorous" speaking. Had they later 
proclaimed a freedom of speaking they would have been thought idiots. 

There has never been a more ardent champion of free speech than U.S. 
Justice Hugo Black. In apparent reference to the Skokie incident he said 
no one has a right to tramp up and down the street threatening others. 
That's conduct, he said. 

Alexander Meiklejohn, noted educator, political philosopher and ACLU 
pioneer, said repeatedly that speaking is subject to regulation " the 
same as shooting a gun". He pointed out that speaking is abridged the 
moment any deliberative session is gaveled to order. 

Unfortunately, the First Amendment has been misinterpreted for 75 years. 
Virtually all speech decisions have dealt with conduct, often outrageous 
conduct. At this very moment the U.S. Supreme Court is pondering if the 
peace threatening conduct of anti-abortion protesters at abortion 
clinics is 'protected' by the First Amendment. 

Free speech, we are told contradictorily, is subject to all sorts of 
exceptions. Everyone knows that even the heroic soapbox orator cannot be 
allowed to function near a voting place. Court figures tell us almost 
daily that "Everyone knows that free speech has limits." 

We do not really have freedom of speech because we have not yet 
discerned what it is. Meiklejohn said that while Congress may not 
abridge it, there is nothing whatsoever preventing Congress from 
enlarging it. 
 
 

1994 Louis Worth Jones