Wednesday, December 14, 2011

Freedom of Speech Is the Right to Offend Everyone

Howdy! Yes, your man of liberty has returned to this little blog. Time to dust off the tables and sweep up a bit. It has been a while so please excuse the mess.


This blog has always focused on Libertarian ideas and issues. Well, with that in mind I was watching an interview that Larry Flynt and Jerry Falwell did on Larry King back in 1996(watch it by clicking here) and it got me thinking about if freedom of speech actually has any limits. Of course my first response is HELL NO! Freedom of speech and freedom of expression should, in theory, have no limits at all. Yet, in reality the only real limits in the case of free speech and expression is slander and liable. Both slander and liable are not easy to prove in the court of law because you must prove that what was said or expressed was meant to damage, by way of lying, a person's ability to maintain a job and live within their community. You can also sue someone in civil court for emotional damages if what was said or expressed caused you deep emotional trauma. In both situations, it is very subjective and comes down to a matter of taste in the majority of cases within the US court system.

I did mention Larry Flynt, so before going forward let's take a look at his battle with Falwell all those years ago. Flynt thought it was damn funny to publish a parody of Falwell. So, in Hustler magazine Flynt published a parody ad of Falwell having sex with his mother in an outhouse(after first kicking the goat out of course). It was meant as a joke to give working class people, the majority of Hustlers readership, a good cheap laugh. Well, Falwell took offense to this and dragged Flynt and his company though a long court battle which took years to finally resolve. It was clear from the start that Falwell was not going to win this case in the end. The supreme court finally had to get involved and of course ruled in Flynt's favor. Yes, Flynt lied about the sexual history of Falwell but he did not intend to cause damage to Falwell's ability to maintain a job or live within the community. He was simply expressing himself and making a joke. It was clearly stated under the ad in question that it was a parody and meant as humor. So, what we can learn from that is freedom of speech cannot be limited on matters of taste. The fact that Flynt made an off color joke in a magazine intended to be risky and adult themed is not a violation of Falwell's right to live peacefully in his own community. Nor did such a joke damage Falwell's ability to maintain his job. Yes, Falwell was really offended but it is highly unlikely he suffered any deep emotional trauma. In the case of Flynt VS. Falwell, it is perfectly legal to offend another person in the United States of America.

Now, let's look at another example from, my current home for almost six years, Tokyo, Japan. The laws on freedom of speech and expression are pretty much the same in Japan except for a few minor differences. I will not get into Japanese free speech laws at this time. What I want to point out is the difference between violating someone's rights under the natural law of liberty vs. simply expressing yourself in a manner which might offend others. I took the picture featured in this post at Shibuya, Tokyo. It was in the early evening when a truck rolled by with an ad featuring a row of almost naked young women. The ad was for some web site which had little to do with beautiful young women. In Japan, such types of ads are so common that it is really rare for anyone to feel deeply offended. This truck was driving around the main section of Shibuya to expose this companies ad to as many people as possible. Let's use the America idea of freedom of speech and expression to judge if this ad damages the local business's  ability to make money and exist in the community. If this trucking company regularly drives ad trucks around Shibuya featuring almost naked young girls promoting a variety of products, and sales of several businesses in the area drop during the same time, is the trucking company liable for damages caused by the ad?

Frist of all, we would have to prove that the ads directly lead to a drop in sales for the local businesses. The only two ways to do that would be to get ahold of public complaints filed concerning the ads or customers saying, on record, they will not shop at the area due to the ads. Even if you have both of those things it would still be very hard to prove the trucking company is liable for damages. Shibuya is an area in which there are plenty of ads featuring half naked young women. So, it becomes clear very quickly that being offended does not fall into the terms of liable or slander.

It would appear that freedom of speech and expression also includes the right to offend everyone. Morality or personal taste has no bearing on freedom of speech or expression. Like wise, if someone does say something which offends you, it is your right to respond to what was said. You cannot respond with violence or attempt to damage someone's ability to maintain their job or live peacefully within their community. A war of words is the only proper way to respond to speech which offends you; under the natural laws of liberty.

Thursday, January 13, 2011

The Power of the Tenth

2011 has now arrived. Many American`s, having no job and losing hope daily, still found a way to smile and ring in the new year. Now that all the cheap wine has been drank and merry making is over we are still left with the question; How to we take our nation back? So many people are left scratching their heads as to what to do. For many liberty lovers it seems everything attempted to restore liberty to Americans ends in failure. The big knock out blow to government tyranny seems to be unattainable. Maybe it is time to bring out the secret weapon. The one thing which always scares the scum bags running the Federal government is of course the tenth amendment of the US Constitution.

The Tenth Amendment reads as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

In short the tenth amendment states that any power not granted to the Federal government,by the US Constitution, is a power of a state or the people directly.

The tenth amendment is often dismissed as simply overstating the already clearly defined relationship between the Federal and State governments. It is also seen as something not to be invoked due to the fact that the tenth was used by the Southern States as a way to justify seceding from the Union during the civil war. The latter point is used by many to dismiss anyone invoking the tenth as grounds to claim the Federal government has overstepped its bounds. Yet, these `talking points` commonly used to marginalize the tenth fail to take from it the power to keep the Federal government in check. Just because it is hard to invoked the tenth successfully, does not mean to cannot be done.

How can the tenth be used to get the Federal government under control? This is a question which gets asked often. Well, there are many things which the Federal government does these days which can be challenged by invoking the tenth amendment. The most effective way to use the tenth is in situations in which the Federal government makes agreements or treaties without making the same agreements or treaties with the states. This becomes very important when you consider all the various treaties the Federal government makes with the UN; just as an example.

Lets take the UN gun ban (which you can read a bit about here) that is slowly coming to realization in the chambers of the UN. This planned treaty would start the process of banning private gun ownership by the central governments of all member nations. Under certain conditions, the Congress could actually ratify this and the Supreme Court could give them a legal pass. Yet, this does not mean that the local state government would be powerless to stop such a clear attack on personal liberty and national sovereignty. The tenth amendment would have to be used by the state governments to block Federal authority.

Some might argue that since the Senate represents, in theory, the states then by the Senate ratifying such a treaty than an agreement will have been reached with the states. This is not true. The Senate is part of the Federal government and makes laws within the power of the Federal government; not the actual states themselves. A national gun ban would be completely out of line with the US constitution; even if the supreme court fails to make a ruling throwing out such a ban. At that point the tenth amendment would come into play. The states would invoked the tenth under the grounds that the only agreement the states have made with the Federal government, concerning the people`s right the hold arms, is the second amendment. The states would reserve the power to regulate fire arms sales and ownership since the Federal government does not have such power from within each state. So the Federal government could sign a UN treaty to ban fire arms but it would only apply on Federal property or outside of a union state(which is all states).

Now this may be a bit of a extreme example, based on something actually happening in UN chambers, but it does outline how the tenth can be used to keep the Federal government in check. Keep in mind the Federal government often abuses the ethos of common law to get around the tenth. This is why it can be hard to invoke the tenth amendment successfully. When attempting to use the tenth amendment a lot of research must be undertaken to ensure the Federal government does not use end-around tactics in common law to dismiss a tenth amendment argument.

For an extra case study in using the tenth amendment on a personal level to protect yourself from Federal intrusion read this.