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In Search of the First Amendment

Over the years we’ve all heard every manner of reference to the Bill of Rights, notably the First (the right to free speech) and Second (the right to bear arms) Amendments. Indeed, I can’t count the number of times I’ve heard people—professionals and amateurs—remind us that we can’t shout “Fire!” in crowded theater.

Not that I’m an expert on the U.S. Constitution, but as the former editor of a labor union newspaper who was once threatened with a lawsuit by a disgruntled union member claiming we had violated his First Amendment rights by refusing to publish a political essay he had written, I like to think I’m fluent.

Of course, being “threatened with a lawsuit,” is close to meaningless, particularly in California. In my Dad’s day, men would threaten to punch you in the nose (“You want to go outside and settle this?”). In my day, they threatened to sue you. Although lawsuits are still in vogue, and threats of violence now involve guns (“I’m going to blow your fucking head off”), people today seem nicer. They threaten to “un-friend” you on Facebook.

At issue was what this person saw as a bedrock Constitutional guarantee. He claimed to have the unassailable right to express a political opinion without having it edited or censored, even if that opinion happened to contradict the views of what he referred to as “the Establishment.” In short, he insisted on having his scabrous anti-labor polemic published in a union newspaper.

I refused to run the piece. While my first impulse was to threaten to blow his fucking head off, I urged him to take a moment to think about it. A union is no more compelled to publish the views of an anti-union member than the Catholic church is obligated to publish the views of an atheist. Surely, he could see that. He responded by quoting the First Amendment. Only he left out parts of it. In fact, all he could recall was that he was somehow guaranteed the right to political free speech.

This is the entire First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” So unless I was Congress, and was set on passing some law, the issue before us wasn’t a First Amendment issue.

But because I was new in the job of editor, and didn’t want to do anything that put the union in jeopardy, I consulted a labor lawyer to make sure I was on solid ground. He told me I was. He assured me that this fellow had absolutely no grounds for insisting we run his piece.

However, he did raise another issue. He noted that because our by-laws were so wildly democratic, if this guy came to the Hall and demanded that our newspaper print all articles submitted to it, and they took a vote and the vote carried, we would have to comply. After all, the paper’s expenses were underwritten by our members. The membership “owned” the paper.

Our story has a happy ending. I looked up this guy and told him what I had found out. I told him he could come down to the union hall and put the issue to a vote. I also promised him that if the vote carried, the newspaper staff, beginning with me, would resign. That was no idle threat; it was a fact. None of us had any interest in moderating some stupid debate about the efficacy of the American Labor Movement.

He not only instantly understood what I was saying, he sheepishly confessed to having submitted the piece in the spirit of a Devil’s Advocate, with the goal of intentionally (in his words) “stirring the pot.” He assured me that he was not anti-union. It ended with us shaking hands.

While I haven’t stayed in touch with this guy, people I have stayed in touch with still talk to him. Apparently, he has gone around telling everyone that he had proudly voted for Donald Trump. If he did so in order to “stir the pot,” he’s more of an ass than I thought he was.

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David Macaray is a playwright and author. His newest book is How To Win Friends and Avoid Sacred Cows.  He can be reached at dmacaray@gmail.com

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