Wednesday, December 5, 2012


The Arlington Kerfuffle, Part Deux: Freedom and Consequences

The curious Lindsey Stone saga (of which I first wrote here) continues to invite commentary from across the infosphere.  Some of it is just silly. David Drumm, a guest blogger on Jonathan Turley's legal blog, defends Ms. Stone on the grounds that she was justified in her actions because the sign itself demanded mockery:
While the photo obviously mocks the sign, many apparently thought it mocked those buried at Arlington National Cemetery. A sign demanding “Silence and Respect” deserves to be mocked. The wording of the sign projects a sense of arrogance and entitlement common to institutions that view themselves as sacred cows. Adding the word “Please” to the sign would change the command to a request, a more sensible sentiment.
Riiiiiight.  Note to Arlington Cemetery:  Your "sense of arrogance and entitlement" cost Lindsay Stone her job.  After all, she never would have acted like an adolescent had you just said "please".  Or something.

Somewhat more common is the sentiment that Ms. Stone's actions--together with their subsequent consequences--constitute a First Amendment "freedom of speech" issue.  James S., a member of one of my LinkedIn groups, expressed the thought in fairly typical fashion (slightly edited for typos):
I learned that many people have no idea what irony is. I also learned that people are more than willing to Monday-morning-quarterback from the safety of their couch or desk, but I already knew that. If she was indeed being so loud and disrespectful, why did no one stop her then and there? Perhaps because she wasn't actually yelling or making a big scene like those [who] oppose her freedom of speech have made since then?
James highlights two issues.  The first seems to say that she was joking, not really protesting.  She was being ironic, you see.  This is true (by her own admission), but less relevant than James imagines.  The second attempts to defend her right to do so on First Amendment grounds, which simply does not apply in this case.

I made both points in my response:
Perhaps some people misunderstand irony, but it is fairly said that others misunderstand propriety. 
Moreover, it is important to remember what the First Amendment guarantees, and what it does not. The text ("Congress shall make no law ... abridging the freedom of speech") protects the content of one's speech as a legal matter, but does not protect the speaker from the consequences of his or her words (or photo). Ms. Stone exercised her freedom under the law, though likely her purpose was less profound and more adolescent. She then suffered the consequences apart from the law, which is to say she was not prosecuted. Rather, she suffered public approbation, then separation from an employer which chose (for business reasons) not to absorb the first cost alongside her. These, though harsh, are not an affront to freedom, but rather an expression of it. 
This is important because many people mistake the right to speak with the right to be heard without consequence of any sort.  In simple terms, if I go to my neighbor's house for dinner and proceed to insult his wife, I have exercised my right to speak freely under the law.  He then has the right to tell me I'm a moron and throw me out of his house.

Neither Jonathan Turley nor any other Constitutional scholar would argue otherwise.

UPDATE:  Fascinatingly, CNN's Piers Morgan appears to have made precisely the same mistake just this morning, invoking the First Amendment as inoculation against dissent (and thus inviting ridicule).


  1. Well said my Air Force brother! Eric Ogren

  2. This is not about law. People in the cemetery defended her right to law. However, respect of others while may not be a law should be a practice. "...On these two laws hang all the laws and all the prophets. Love God with all your heart and love your neighbor as yourself. I am sure Lindsey has some issues that would prompt her to do this, but does that negate respect for others?

  3. In support of the notion that the First Amendment isn't involved: It wasn't until Gitlow vs. New York in 1925 that the Supreme Court ruled it even applied to the states. Even then, the reasoning had to lean on the Fourteenth Amendment, and so would have been impossible before the Civil War. (Indeed, Massachusetts had an established church into the 1830s.) As Jailer rightly noted, it doesn't apply to employers (and it won't be until President Obama appoints a couple more Supreme Court justices that it will be found to apply to employers of all sorts - "You didn't build that!")

    If Ms. Stone wants to console herself however, have her wait a little while and try it again: It won't be long before both Virginia and the Federal Government have "hate crime" legislation broad enough so that she can be arrested and martyred.

  4. I'll add to the last comment, in particular its sardonic side:

    Yes, it's the Facebook generation. But they're part of a paradigm in which "freedom" is guaranteed (except when it isn't) at the purely individual level, but nowhere else: As an individual, you can be as sexually irresponsible as you want, and as boorish as you want (unless you hurt the feelings of a member of some "protected group"), and as financially irresponsible as you want, and someone will be found to find it your First Amendment right (and the courts will follow not much later).

    But, if some one of Burke's "little platoons" chooses to try to moderate that individual's behavior, it will soon find that its freedom to do so has been - or shortly will be - stripped from it. In a word, "civil society" is being hollowed out. The consequences will be coming soon to a church near you.

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  6. Your point about the freedom of speech's being a LEGAL right is, sadly, a fine point that too few seem to get. No, you cannot be jailed. But you CAN be fired, scorned and in extreme cases (under the legal doctrine of "fighting words") find yourself with a poke in the snoot but having no legal recourse. You brought it on yourself ... made your bed, now lay in it ... pick your favorite cliché.

    With you, I hope that she, her accomplice and all who learn of this incident are wiser for it. To quote Eleanor Roosevelt (who was also quoted by ADM Rickover), "Learn from the mistakes of others. You can’t live long enough to make them all yourself."


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