COMMENTARY: Fraud, insurrection and limits to the First Amendment

I love my neighbors. But let’s suppose I don’t. Let’s suppose that my neighbor and I have a genuine dislike for each other. What is more, I want the three feet lying on the far side of my fence that are currently part of his yard. Hatred, envy, greed all come together in my mind, and I hatch a plan to get rid of that neighbor.

I decide to accuse that neighbor of pedophilia. I spread the word that he is a pedophile. I put up flyers to that effect. I then call the police and accuse him of pedophilia. When the police ask me what evidence I have of that serious charge I tell them it is their job to find the evidence. My job is simply to make the accusation. I want his house and computers searched. I want him arrested and interrogated. I want him brought to court.

When I am told that they need more than just my say-so, I tell them that I heard he was a pedophile. Who said it? I can’t remember. When and where did I hear it? I’m not sure. Did anyone else hear it. Sure — but I don’t know who. It is just general knowledge. You know. Everyone knows he is a pedophile.

The police go ahead and do a routine investigation. There is no corroborating evidence. They tell me there is no reason to believe my neighbor is a pedophile and they make no arrest. In the meantime, my neighbor has heard of all of this and is now suing me for slander. I counter with the First Amendment.

“I have freedom of speech,” I say. “I can say anything I want.”

The intelligent among you know that this simply is not true. But for the ignorant among you, let me give you a small history lesson. in terms of the right to speak, but the responsibility not to slander, commit fraud or incite harm.

In 1917 two anti-war activists were found guilty of attempting to cause insubordination among soldiers who had been drafted to fight in World War I. They had circulated leaflets urging draftees not to “submit to intimidation” by fighting in a war being conducted on behalf of “Wall Street’s chosen few.” The case, Schenck v. United States, went to the Supreme Court. Justice Oliver Wendell Holmes wrote the verdict, noting that “… the character of every act depends upon the circumstances in which it is done.” as an example, he gave what has become an oft-misquoted statement: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” The court upheld the conviction of Schenck.

What Justice Holmes made clear is that tolerance, even that which is codified in law, exists within, not separate from, the fabric of human interaction. Living in a free society carries responsibilities as well as rights.

No, you may not spread lies about your neighbor. You may not lie about circumstances to facilitate perpetration of fraud. You may not say you won an election that you know you lost to try to call up an army of flying monkeys to tear down the Capitol. There is no freedom of speech that allows you, me or the former president to lie in a way that produces harm to others, to our Constitution or our nation.

The demimonde of Donald Trump’s toadies want to say that the former president’s indictment is about free speech. They are lying. It is about his trying to use a lie to cause a violent overthrow of a legally and properly elected government. It is about Trump being a jejune, spoiled, petulant little bully who thought he deserved to win because his ego can’t stand looking at a loser every day in the shaving mirror.

Free speech allows me to tell the truth about our failed former President. It does not allow me to lie about my neighbor. I seriously keep the faith.

Louise Butler is a retired educator and published author who lives in Edinburg. She writes for our Board of Contributors.