October 26, 2021


“The president … will not now be shy about expressing a view or taking the steps that are necessary to try to advocate for the safety and security of our men and women in uniform” whenever journalists’ work may provoke jihadist attacks, spokesman Josh Earnest told reporters at the White House’s daily briefing.

Pope Francis says there are limits to freedom of speech, especially when it comes to someone’s religion, in comments that made reference to the deadly attack last week on the French satirical magazine Charlie Hebdo.

If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought we hate.

Oliver Wendell Holmes, Jr., (United States v. Schwimmer, 1929).

Freedom of speech law is mostly unique in our country, mainly because of its broad spectrum.    We have to understand that speech is the main aspect of individual freedom.    Our forefathers clearly understood this, and thus it became the first amendment of our Constitution.    Since its inception the amendment’s meaning has been under attack and a frequent legal case in the Supreme Court.    Freedom starts with the right of an individual to be free, an all or nothing proposition, subjected only to the persons constrains based on their personal education and values.    Since we live in a society, our rights are limited by the rights of others, and the legal system imposes when and where damage is caused.    In the quote mentioned above, Pope Francis spoke about limits to free speech, with emphasis on religion.    As he is a religious leader, we assume that he was speaking about the personal, moral responsibilities, and not a societal imposed restriction.  In an unfortunate example of his “on the cuff” comments he stated that if the person next to him would insult his mother, he would punch him.    This statement goes against all his prior teachings, not to mention the “turn the other cheek”, Christian dogma.    Regardless of his intention, it is a perfect example of the point I am trying to make.    There is a huge difference between what a person “should” do and what he “can” do.    This difference is lost in the many that abrogate for limits of free speech, a personal decision, not a legal imposition.

In the Pope’s example, his friend “should” not have insulted his mother, but he “can” do it.    The Popes response though, was one that not only “should not be”, but also “cannot”.    Justice Wendell Holmes Jr. explains it very clearly.    Freedom is only confirmed by accepting speech we hate, regardless of how cruel, obnoxious, or odious.    In another case involving the military draft, he delineated the only legal limitations, to wit;    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.    This legal opinion frequently cited for the “fire in the movie” example uses the limit of clear and present danger, an extremely high bar used mainly as a reason to place soldiers in harm’s way in a military conflict.   

Since the latest terrorist attack had to do specifically with freedom of the press, it is good to be reminded of our forefather’s thoughts of the limits, if any, that should be placed to these institutions.    They concluded that any constraint, even a small one, would open the door to censorship.    Jefferson, alarmed by the frequent obscenities written about the politicians in his time, always recommended that in cases of abuses, like libel, the courts representing the people should decide the legality of these expressions.    As we know any libel case against the media, faces a very high level of proof, of not only harm caused, but that it was purposively done.    An old Paul Newman movie “Absence of Malice” makes this point clearly.    We the people have to be extremely aware of the dangers our freedom faces.    We continue to hear the voices from the White House, placing blame not exclusively on the Islamic extremists, but on those that “incite them”.    The above mentioned quote from spokesman Josh Earnest, about potential presidential action is clearly threatening us with a form of censure that could spell the beginning of our losing our right to be free.

Fernando J Milanes MD