FROM MOUNTAIN MEDIA
FOR IMMEDIATE RELEASE DATED OCT. 28, 1999
THE LIBERTARIAN, By Vin Suprynowicz
Levying a 'free speech fee'
Las Vegas radio talk show host Patricia Saye decided a month back she
wanted to burn a United Nations flag in front of the Foley Federal Building
on Oct. 24. She was told she had to apply to the federal Environmental
Protection Agency for permission.
She went through the "air pollution" rigmarole.
Then she was told to apply for a permit from the Las Vegas Fire
Department, as well. Ms. Saye did so, documenting how she would have a fire
extinguisher on hand, how she would burn the flag a distance away from any
buildings, and so forth.
Permit approved. But then Ms. Saye was told bout the $60 fee.
"You are telling me I have to pay $60 to express my First Amendment
rights?" she asked. "I told them that it seems a little ridiculous. ... I
think it has the potential in the long run to deter free speech."
The fee in no way restricted Ms. Saye's rights, contends Las Vegas Fire
Department spokesman Timothy Szymanski. "If she gets the permit, she can do
what she wants."
Mr. Szymanski is wrong. Charging a fee is obviously an abridgement of a
right, since there is always someone who will be deterred by the fee.
Imagine the (quite justified) outcry if any government agency were to start
charging "a nominal $60 manuscript inspection fee" before allowing
churchmen to preach their sermons.
In the famous Miller case of 1939, the Supreme Court held it's OK to
charge a $200 transfer tax on a sawed-off shotgun, only after the court
determined a sawed-off shotgun was not the kind of "weapon of militia
usefulness" protected by the Second Amendment. Though the thrust of the
decision is often purposely misquoted, the high court clearly meant that
such a fee or tax would (start ital)not(end ital) be constitutional if
levied upon any weapon protected for militia use by the Second Amendment --
like a machine gun.
"Where rights secured by the Constitution are involved, there can be no
rule making or legislation which would abrogate them," ruled the Supreme
Court, much more recently, in Miranda vs. Arizona.
"If the State converts a right into a privilege, the citizen can ignore
the license and fee and engage in the right with impunity," the courts
further ruled in Shuttlesworth vs. City of Birmingham Alabama.
And, most famously in Marbury vs. Madison, the very first Supreme Court
instructed us: "All laws which are repugnant to the Constitution are null
and void."
Charging a citizen a $60 fee for "permission" to express a political
protest is absurd, dangerous, and un-American.
# # #
Speaking of Supreme Court decisions and "inherent" dangers, a number of
readers have called me on an error, as I referred to Justice Oliver Wendell
Holmes' famous ruling that we don't allow people to yell 'Fire' in a
crowded theater, as having been written in dissent.
I was wrong. Justice Holmes was writing for the court in Schenck vs. the
United States, when in 1919 he penned the now infamous doctrine: "The most
stringent protection of free speech would not protect a man in falsely
shouting fire in a theater and causing a panic. ... The question in every
case is whether the words are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent."
And what was this "clear and present danger"? Why, Mr. Justice Holmes was
upholding the imprisonment of Charles Schenck, general secretary of the
Philadelphia Socialist Party, for publishing 15,000 pamphlets which
protested U.S. involvement in the First World War, and urged young men to
resist the draft.
The current textbook "Mass Media Law," by Don Pember of the University of
Washington informs us: "Sedition prosecutions in the period of 1915-1925
were the most vicious in the nation's history as war protestors,
socialists, anarchists, and other political dissidents became the target of
government repression."
This is the proud tradition which our brethren of the left embrace when
they parrot back Justice Holmes' words to us as evidence that "no right" -
they really mean only the despised Second Amendment, of course - "is
absolute."
Unfortunately for this argument, Professor Pember further instructs us:
"To many American liberals this notion seemed far-fetched and Holmes was
publicly criticized for the ruling. ... Holmes changed his mind about his
test ("clear and present danger") in less than six months and broke with
the majority of the High Court to outline a somewhat more liberal
definition of freedom of expression in ... Abrams vs. U.S. (1919.)"
By 1957, the high court found in the Yates case that to sustain a
conviction under the Sedition acts the government must prove the defendants
advocate specific violent and forcible overthrow o the government. And by
1969 the court went so far as to hold that even advocacy of unlawful
conduct is protected by the First Amendment, "unless it is directed toward
inciting or producing imminent lawless action and is likely to incite or
produce such action."
"The government found it impossible to do this in the 1950s," Professor
Pember concludes in his 1977 text, "and the Smith Act has not been invoked
to punish an act of expression in more than 25 years."
So Justice Holmes admitted he was wrong within six months, and the high
court has since so eviscerated the Sedition Acts that no one even tires to
enforce them anymore (Thank heavens.)
Shame on those who embrace these red-baiting words, written in service of
mass conscription for the tyrant Wilson's Great War. The Socialists were
never right about much, but I believe they had every right to publish their
darned anti-war pamphlets. Don't you?
Vin Suprynowicz is assistant editorial page editor of the Las Vegas
Review-Journal. His new book, "Send in the Waco Killers," is available at
1-800-244-2224.
***
Vin Suprynowicz, vin@lvrj.com
"The evils of tyranny are rarely seen but by him who resists it." -- John
Hay, 1872
"The whole aim of practical politics is to keep the populace alarmed -- and
thus clamorous to be led to safety -- by menacing it with an endless series
of hobgoblins, all of them imaginary." -- H.L. Mencken
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