Why Free Speech Isn't Private Speech

Washington State recently enacted a domestic partnership registry and granted most of the same rights held by married people to domestic partners. Needless to say, the wingnut fringe of the Republican party came unglued, and launched a petition effort to repeal the law.

They recently turned in their petitions. It has been reported that some of the paid signatures gatherers were dishonest about what the petition did (going so far as to say that it was in support of domestic partnerships). In light of that, the organization sponsoring the drive has sought and received a temporary restraining order to keep the names of the petition signers secret.

TACOMA, Wash. (AP) – A federal judge is halting the public release of petitions supporting a gay-partnership referendum.

U.S. District Judge Benjamin Settle agreed to the temporary restraining order Wednesday, in a case that questions whether Washington’s open-government laws could discourage free speech.

But the R-71 campaign says that could lead to harassment. The state didn’t oppose the restraining order, but it will defend the public records law in court.

I’d like to advance some thoughts on the topic.

I’m not an attorney nor a Constitutional Scholar, but I did have sixth grade civics. As I see it, there are three kinds of “speech.” Admittedly, each has some gray area and overlap.

First is private speech or expression. That’s the kind I hold with myself in my head, or privately with another person in a private place. I am not inviting anyone else to listen, nor making the comment such that someone else might reasonably hear or see my expression or comment.

Private speech does not enjoy constitutional protections, because it doesn’t require protection. We often forget that the founders never intended that we go to the Constitution to try to “find” specific protections. They talked a lot about unalienable rights. This means that all conceivable rights accrue to the individual. The purpose of our Constitution was to lay out the boundaries to which the government can, for the public good, infringe on those rights.

Some will certainly bring up the “Bill of Rights,” as an attempt to list rights, but it was a compromise document added to ensure support. People did want certain specific rights enumerated, but the writers of the Constitution never felt a need to try to enumerate rights. They just assumed that all unalienable rights accrued to private individuals up to the point when conflicts arose.

Semi-private speech happens when I have a quiet conversation with another person in a public place…over lunch as an example. I’m not intending for the comments to be public, but both parties should realize that being in a public place can result in the comments being public.

This type of speech presents the most difficulty. I see this speech taking place in private places that may be open to the public (a restaurant for example). In these cases, I’m not totally free to say whatever I want, as held in the famous cases around not being allowed to yell “fire in a crowded theater.” The proprietor is allowed, in my opinion to control my speech or expression if it disrupts his business or disturbs other customers, but only to the extent that he would curtail such expressions for all patrons. The example here is, I don’t believe you have a right to stop gay people from kissing if you allow straight people to kiss, one can’t demand, even in a private establishment open to the public, that African-Americans must eat at a separate counter, but one must remember that on private property, there is much less protection for free speech.

Public Speech, to me, is that speech delivered in a truly public venue, “the town square (literal or virtual).” You are speaking there with the specific intent of public expression, and with a reasonable expectation your speech will be heard. In fact, being heard is generally the reason to conduct public speech. This is the type of speech specifically protected by the free speech clause in the Constitution.

There are two sides to “free speech.” You have a right to take to the public square and speak freely, but I have a right to go to the public square and witness/hear your expression. You are not entitled to go into the public square, but demand that all others be kept beyond ear-shot.

This is what I think is going on in the case of the R-71 supporters, and shame on this Judge for even issuing a temporary restraining order. I believe the minute the R-71 supporters invoked a “free speech” claim of any kind, they immediately ended any expectation of privacy for the signers. In effect, what they have asked, and the court has granted, is the ability to express themselves in the public sphere, but have every other citizen held out of ear-shot.

The Constitution guarantees us each a secret ballot, but we are not allowed to petition our government in secret. Despite Dick Cheney’s beliefs’ to the contrary, that is the very reason for open government statutes. The people’s business is supposed to be done before the people (all of them). Whether or not it might cause people harassment should be of absolutely no concern to the courts. The question is, if a person ventures into the public square to petition their government, are other citizens allowed to listen. This Judge has failed the test. I am entitled to know who is speaking, what they are saying, and who paid for the megaphone.