“Whoever sends information to another person by electronic means with the intent to annoy, offend, demean, ridicule, degrade, belittle, disparage or humiliate any person and which serves no legitimate purpose shall be required to forfeit not less than $50.00 nor more than $500 together with the cost of prosecution and in default of payment shall be sentenced to the County Jail until such forfeiture and costs are paid, not exceeding 30 days.” — Vernon County Ordinance 11/8/12
Today at the November Vernon County Board meeting, the board, under the guise of anti-bullying and protecting children, passed an ordinance criminalizing speech that has the “intent to annoy, offend, demean, ridicule, degrade, belittle, disparage or humiliate any person and which serves no legitimate purpose.” The penalty for violating this ordinance is a 50 to $500 fine or up to 30 days in county jail.
The first question most people rightfully ask is “What about the First Amendment? Free speech?” The First Amendment is very clear: “Congress shall make NO LAW [emphasis added] abridging the freedom of speech.” Abridging, ironically means diminish, degrade, belittle. NO LAW abridging the freedom of speech. The founders could not have been more clear. NO LAW. Otherwise the founders might just as well have written “Freedom of most speech” with the exception of speech that is annoying, demeaning, ridiculing and so on. They didn’t. They believed even annoying speech is protected speech, annoying as that may be.
Unfortunately after 236 years of court interpretations the meaning of “NO LAWS abridging the freedom of speech” has morphed into SOME LAWS may abridge the freedom of speech. This county ordinance is an example of one such law. Constitutional experts are split on the constitutionality of such laws. The battle for keeping free speech has been waged throughout American history, where at one point, about a century ago, local ordinances were being used to ban public speech, assembly and protest:
“…protesting a local ordinance that banned street meetings and protests, on November 2, 1909 the Industrial Workers of the World launched a Free Speech Fight on the streets of Spokane, Washington. Before the first day was out, 103 workers, trying to mount a literal wooden soap box, on Stevens Street, had been hauled off to jail”… “the City Council was easily persuaded by the employment agencies and lumber interests to enact a local ordinance banning street meetings and protests.
“The tactic of the Free Speech fight spread as other cities attempted to squelch public meetings. A big one in Fresno, California erupted right on the heels of the one in Spokane. Over the next few years there would be dozens more, the largest in Seattle.”(1)
During WWI 175,000 Americans were arrested for speech against the war. These Americans were in violation of the 1917 Espionage Act, which criminalizes speech against the government during times of war. Today Obama uses these Espionage Act provisions to arrest whistleblowers. Thus Obama is reinforcing the veil that’s hiding, what Edward Bernays’ called, “the invisible government.”
Perhaps no statement about free speech is more commonly quoted than you don’t have the right “to shout fire in a crowded theater.” Sheriff Spears used that phrase today to defend criminalizing annoying speech in Vernon County. The comment “‘Fire! in a crowded theater” comes from, Schench v. United States, a 1919 Supreme Court (SCOTUS) decision justifying President Woodrow Wilson’s 1917 Espionage Act, which criminalizes speech that is critical of the government during times of war. Judge Oliver Wendell Holmes wrote this for the majority opinion:
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used 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”
The result of this 1919 decision was that 175,000 Americans were arrested for speech. NO LAWS had become “it’s okay to have some laws criminalizing certain types of speech”. But even here the offending speech must rise to the level of presenting such a clear and present danger that the utterance of such speech would bring about such substantive evils that congress has the right to write laws criminalizing such speech. In the Supreme Courts view, speech arguing against the draft and America’s involvement in WWI, represented a “clear and present danger” whose “substantive evils” was that it could harm America’s war effort. 175,000 Americans were arrested for anti-war speech. It can, and has, happened here.
In Madison over the last several months almost 60 tickets have been issued for speech without a permit violations within the capitol. Like the protesters say, “The First Amendment is all the permit I need”.
So today I had to decide if speech that’s, “intent is to annoy, offend, demean, ridicule, degrade, belittle, disparage or humiliate any person and which serves no legitimate purpose” rises to the level of presenting a clear and present danger, whose use will bring about substantive evils if the board doesn’t stop it. I decided it did not rise to this level and climbed upon my supervisor soapbox. I warned of the erosion of our First Amendment rights to speech, assembly and I talked about our history of struggle to retain them.
My arguments were mostly ignored and it was obvious that the ordinance was going to pass as many supervisors were speaking on it’s behalf. Someone shouted out, “Call the question.” Calling the question means debate stops and a vote is taken right away. Because this is a powerful motion, Roberts Rules, which governs most meetings, requires the motion be seconded, and because this motion limits debate by the minority it takes a two-thirds vote to call for the question. However, somehow the custom of the county board has been that someone would yell out “call the question”. The chair would routinely stop debate and take a vote. No second. No two-thirds vote.
I complained about this rule violation to the legal affairs committee last month. So today, for the first time, the motion to call the question was shouted out, seconded and after a corp council discussion with the chair, voted on properly. In fact the motion failed the two-thirds test (15-14) and debate continued for another 5 minutes or so. Glad all those voices, those supervisors represent, weren’t silenced. A small but important victory for speech.
I voted against the speech ordinance. The ordinance passed 23-5
I hope this letter does not “annoy, offend, demean, ridicule, degrade, belittle, disparage or humiliate any person”, because I’m not sure this letter “serves no legitimate purpose” and I dang sure don’t want to “be required to forfeit not less than $50.00 nor more than $500 together with the cost of prosecution and in default of payment shall be sentenced to the County Jail until such forfeiture and costs are paid, not exceeding 30 days.”. So let me just say I’m sorry, didn’t mean to be so annoying.