What Are We Saying? Violence, Vulgarity, Lies ... and the Importance of 21st Century Free Speech

By Pomerance, Benjamin P. | Albany Law Review, Fall 2012 | Go to article overview

What Are We Saying? Violence, Vulgarity, Lies ... and the Importance of 21st Century Free Speech


Pomerance, Benjamin P., Albany Law Review


ALBANY LAW SCHOOL Dean Alexander Moot Courtroom Thursday, September 27, 2012, 11:00am

WELCOME & OPENING REMARKS

Good morning. Welcome to the Albany Law Review's annual fall symposium. I am Benjamin Pomerance, the Law Review's Executive Editor for Symposium. It is truly an honor to welcome you to this program which focuses on one of the most important components of the American legal system: the right to freedom of speech.

We are here today essentially to talk about ten words: "Congress shall make no law abridging the freedom of speech." (1) Since 1791, these words have existed within the First Amendment of our federal Constitution. Outwardly, these are very simple words. Yet much like baseball games and horse races, laws and freedoms are not won or lost on paper. And in practice, these ten words have given rise to some of the fiercest debates in our nation's history, battles over what this seemingly straightforward clause actually means.

Free speech is one of those rare areas of law that literally affects everybody. There is not a person among us today who does not communicate his or her thoughts in some way. Likewise, there is not a person among us who is not a recipient of communications from other people. It is no wonder, then, that we have become so concerned about freedom of speech, both when it is taken away and when it is allowed.

The notion of free speech--and, by extension, its cousin, free expression--tends to be uplifted as a beautiful thing, a fundamental part of a free society, a key ingredient of our democracy, and all of these other truisms ... until we start looking at speech and expression that we don't like.

What happens when somebody says something so offensive about a particular ethnic group or religious order or gender or sexual orientation that it goes beyond our conception of the farthest bounds of decency? What happens when somebody burns the American flag as a symbol of protest? What happens when somebody lies and profits from those lies? What happens when somebody starts communicating with members of groups that we deem to be a threat to our national security? Are these the types of speech that our First Amendment is meant to protect? And if not, then where and how do we draw the line about what speech is protected and what is not?

Three floors below us, near the cafeteria of this law school, there is a picture of one of our most famous graduates: Robert Jackson, who went on to become one of the finest justices ever to sit on the United States Supreme Court. Below that picture is a quote which seems fitting as a starting point for this symposium: "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

Our program today will focus on things that matter much, that touch the heart of the existing order. It will examine some of the most sensitive struggles over free speech and free expression occurring in America today. It will look at what we truly value most out of our First Amendment, and what those values really mean when stretched to their furthest degree. And it will force us to confront what we honestly believe when we proudly say that we live in a land that's free.

Chances are, many of us will differ on these fundamental questions, just as Justice Jackson predicted. …

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