It turns out that Maryland, the self-proclaimed “Free State,” isn’t so free after all.
Item: The Montgomery County Council passes an ordinance requiring anti-abortion pregnancy counseling centers to tell women that the government encourages them to find “a licensed health care provider” — an implicit rebuke of advice offered by these religiously affiliated centers.
Item: The Baltimore City Council forces anti-abortion pregnancy counseling centers to post notices telling clients that abortion services are available elsewhere.
Item: The Bel Air Volunteer Fire Company — the largest in Harford County — suspends and demotes firefighters for posting threatening Facebook comments against a restaurant that won’t give them discounts.
Item: The state prosecutes and convicts a political consultant for making exaggerated claims in a recorded telephone message to voters.
Item: Congress makes it a crime to lie about receiving a military medal, even though such false statements may not cause any harm.
In each instance, authorities cracked down on what they considered dangerous or misleading speech. And in each case, the goal was to silence statements that authorities disagree with.
Last week, federal courts tossed out three of these actions as unconstitutional attempts by government to control the speech of others.
Two rulings came from the federal appeals court in Richmond, both by 2-1 votes, wiping out the Montgomery and Baltimore pregnancy center mandates.
Montgomery County’s required health disclaimer “suggests to potential clients” that these religious counseling centers are “not to be trusted” and their services “will usually be inferior to those offered by medical professionals,” wrote Judge Paul Niemeyer. That’s a judgment governments cannot legally make. It forces counseling centers to give clients advice anathema to their moral and religious beliefs.
Similarly, Niemeyer discarded Baltimore city’s mandate forcing anti-abortion centers “to participate in the city’s effort to tell pregnant women that abortions are available elsewhere.” That means the centers must bring up issues they never would have raised with clients.
“The First Amendment protects not only ‘the right to speak freely,’ but also ‘the right to refrain from speaking at all,’” the judge wrote.
Also last week, the Supreme Court came to the defense of even untruthful speech.
Lying about receiving the Congressional Medal of Honor may be “contemptible,” but in our democracy, Justice Anthony Kennedy wrote, “one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”
Last year, the high court made a similar ruling in a case involving a church group from Kansas that protested outside a Marine’s funeral in Westminster. This was a repulsive action, said Chief Justice John Roberts, but “we cannot react to that pain by punishing the speaker.” Instead, we must “protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
The judicial message from these federal cases is clear: Aggressive, politically inspired government speech control is dangerous and unconstitutional.
Speech control also will come into play when Julius Henson appeals his conviction for using an Election Day robo-call message that suggested voters need not go to the polls because it was already clear who had won the 2010 race for governor.
Did this constitute “fraud,” as prosecutors charged? Or, is this law an example of the majority party using broad, chilling censorship powers to stamp out disagreeable, exaggerated political speech?
Justice Kennedy noted last week, for instance, “that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation.”
His observation also seems to apply to misleading political robo-calls in the final, hectic hours of an election campaign.
It could apply as well to the demoted and suspended Harford County firefighters, should this controversy end up in court.
Some firefighters had suggested on Facebook last month that they not respond to fire calls at a Sonic Drive-in because it wouldn’t give them discounts. One post suggested setting a fire there.
The incident poses novel Internet-age issues:
How much freedom does someone have on the worldwide web?
Can Facebook comments be grounds for dismissal from a volunteer fire company?
Do threatening or outrageous Facebook statements qualify as constitutionally permitted speech? Are such messages merely macho exaggerations or do they go beyond constitutionally protected behavior?
How much of what is written on the Internet enjoy full or partial First Amendment protection? Where do we draw the line?
This week our nation is celebrating the 236th anniversary of American freedom and independence. Let’s not forget that a basic liberty remains under occasional challenge from well-intended, but overly zealous, elected and appointed officials who want the First Amendment to protect their own interests but not the voices of dissenters.
We need to remember what Justice Kennedy wrote last week: The right to free speech is “the matrix, the indispensable condition of nearly every other form of freedom.”
Without the freedom to speak our minds, our other fundamental rights “would wither and die.”
Barry Rascovar is a political columnist and communications consultant. He can be reached at firstname.lastname@example.org.