I found an article about a North Carolina man arrested in Helen, GA for cursing in public. As you may imagine, there was a lot of discussion about this violation of the man’s right to free speech, but all of the discussions I found were constitutionally wrong. I think this is a very good time to discuss what I saw that other people got wrong, and why it’s important.
Freedom of Speech
I’m sure you’re wondering what I’m talking about here. Most of us cherish our right to free speech and do not like to see that right for others infringed. I agree, this was a violation of this man’s right to free speech. When we see someone’s freedom of speech being infringed, our first reaction is usually to claim a violation of the First Amendment. However, there’s a problem.
Congress shall make no law … abridging the freedom of speech,
You see the First Amendment to the U.S. Constitution says Congress shall make no law abridging the freedom of speech, but since the man in GA was not charged under a law created by Congress, there was no violation of his First Amendment rights. Some of you may be confused right about now, because if the First Amendment only protects our right to free speech from Congress, how is this right protected at all? Especially since most infringements of our free speech rights come from places other than Congress? If this is not a violation of this man’s First Amendment protections, how can it be a violation of his free speech rights?
Because it is a violation of his Paragraph V rights.
Freedom of speech and of the press guaranteed. No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty.
Constitution of the State of Georgia, Paragraph V
We forget that our rights are not only protected by the federal government, but by the state governments as well. Every state constitution has a list of protected freedoms similar to the ones found in the Bill of Rights. In this case, the man can claim that his right to free speech was restrained by this law and therefore his Paragraph V rights were violated. And that is a very important distinction.
Separate Sovereigns
When I discuss the Supremacy Clause in Article VI, I’m often told that having the Constitution apply to the states would make everything a ‘federal case’. This is a perfect example of why that’s wrong and how it’s our misunderstanding of the Constitution that makes everything a federal case.
When the states ratified the Constitution they created the federal government and delegated to it certain powers, reserving all other powers to themselves. This was confirmed by the ratification of the 10th Amendment. While the protecting of freedom of religion, speech, press, assembly, and petition that was delegated to the federal government was limited to acts created by Congress, the states retain the authority to protect it within their own laws. Georgia did this by ratifying Paragraph V in their state Constitution. If a federal case were to come of this, then this man should lose, not only because what happened to him was not a violation of his rights protected by the First Amendment to the U.S. Constitution, but because a finding in his favor would be a violation of the 10th Amendment as well.
Some of you eagle-eyed constitutionalists may say, “But the judicial power of the United States extends to cases between a state and the citizens of another state.” True, but the 11th Amendment limited that to a one-way authority.
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The states, as sovereign entities, didn’t want people from other states suing them in federal court; they wanted such suits to remain in their state courts. Besides, this man should be suing the town of Helen, since I believe it was a town ordinance that he was charged with violating.
Conclusion
Whether you believe this law is a violation of free speech or merely holding someone responsible for abusing that liberty, the point I want to make here is that this is not a federal case. Should this man petition for the arrest to be nullified on First Amendment grounds, his case should be rejected on the basis that Congress has done nothing to infringe on his rights. Should a federal court accept this case, it would be another step down the road to federal supremacy and away from state sovereignty as well as one more brick on the road toward judicial tyranny. Fortunately, if handled correctly, it might also be one more opportunity to stand our ground for the Constitution and the rule of law. If we do not do so because we are offended or our feelings are hurt, this will become just another step along our road to serfdom.
