Subj.: Meiklejohn and free speech 
Date: 12/03/98 

Dear Paul - 

Greetings.  By now you have received my voluminous material attempting to respond fully to your letters of last May.  I hope your schedule will enable you to at least examine this critically during the holiday break 

We should both note that you and I for the most part have been writing about one way expression, as opposed to the process of two way discourse.  There is a chasm of difference, as William Winter said in the excerpt I sent you. 

I have just dusted off Meiklejohn's words before that Senate subcommittee in 1955, where he insisted that the act of speaking, as before that subcommittee, was subject to all sorts of limitations - "the same as shooting a gun." 

And when one person inflicts sounds or sights on another, that person is engaging in conduct/behavior as regards the other person.  Does the Constitution and Bill of Rights deal in any way with such interpersonal relationships?  The answer must be no; these instruments deal exclusively with governing powers entrusted to a specially created mechanism as well as governing powers (and human rights) zealously retained (by the creators: "We the people) 

I have said publicly without challenge that no one can show original intent in the area of lateral relationships - how one person relates to another.  The presumption is that citizens who are mature and capable enough to proclaim to the world their ability to govern themselves ("using" their delegates and representatives, as Meiklejohn said), are at the same time capable of self restraint and civilized behavior - and regarding each citizen as the equal of any other in the deliberative process of making the system of democratic self government workable and maintainable. 

The founding citizens set a notable example of this during their four hot months of deliberation.   And Lincoln summed it up at Gettysburg: "Founded in liberty and dedicated to the proposition that all men are created equal." 

Of course each citizen has the right and power to participate in the process of governance.  No one needs to assure us of that. We have not only the right but the duty of conversing and debating (and speaking out) about the system of government we have created.  This does not mean we have abolished the Golden Rule of human conduct. 

The words "the freedom of speech" denote what they denoted back in 1689 when members of Parliament, after bloodshed, won the right and power to debate governance issues without interference from the king.  It was the process, quintessentially democratic, that was deemed sacrosanct; where speaking and other interpersonal conduct was consensually regulated in order that speech (as the word was then used) could take place. 

Just the other day I noted how the King James Bible uses the word speech.  "And he whole earth was of one language, and of one speech."  Genesis 11:1.  Shakespeare wrote of persons being "in speech" with others.  Also Sir Walter Scott.  Had the nation's founders, knowing that ordinary manners dictate that persons should take turns when attempting to converse, proclaimed a freedom of speaking they would have been adjudged idiots 

And yet, this is just what the high court back in 1919 thought free speech consisted of.  The judges ruled that some one way assertions were good and some were bad, and since that time they have been trying to "draw the line" between conduct becoming and unbecoming an American citizen in the public arena.  Almost all court decision on free speech deal with human interrelations, i.e., conduct, not with the relationship of the citizen to his or her self created system of government, which is the relationship of a part to the whole. 

And so we have an utterly ridiculous and self contradictory doctrine that free speech means solo utterances, some of which are free of government regulation (and thus "protected") and others (like bad-mouthing an arresting police officer face to face) are punishable.   In other words, some conduct is "protected" and some is punishable. 

Courts are often heard to say, "Everyone knows free speech has limits."  Such dicta refers to speaking, that is, conduct; not to speech as a deliberative process.. 
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Whatever free speech is, it is absolutely off limits to governmental power, that is, if the words "Congress shall make NO LAW..." have any meaning at all. 

What does make sense, as Meiklejohn tried valiantly to get across, is that in our system of democratic self governance it is absolutely necessary that our basic deliberative and decision making processes MUST THEMSELVES BE DEMOCRATIC - and there is nowhere a more democratic decision making process than the traditional parliamentary law, now popularized as Robert's Rules of Order. 

There are persons, as Meiklejohn said (want quotes?)  who are philosophically opposed to government of by and for the people (all the people, that is).  They would, intentionally or witlessly, destroy this sine qua non of self government and substitute a system of decision making based principally on selling, and on propagandistic, mind manipulative PR operations (now referred to as sound bites). 

Such persons know from experience that if the tobacco industry can for years deceive people into believing cigarettes are good for you and for society as a whole, the same people - the body politic - can similarly be deceived into thinking that some other form of government is better than what we constitutionally now have. 

Meiklejohn summed it up: "Manipulation of men is the destruction of democratic self government." 

Well, I have rambled and am sorry.  I still feel that what I have said lacks cogency.  I invite and indeed solicit caustic comment but, after all, we must eventually get together face to face if we are to agree in interpreting our common idol.  Hope things continue well with you. 

Highest regards, Lou. 
 
 

1998