Politician's Lot(t): Constitution No Protection From 'Stupid Speech'

By Michael L. Betsch | July 7, 2008 | 8:29 PM EDT

(CNSNews.com) - Many public officials have found that all it takes is one slip of the tongue to bury them in a landslide of criticism, from which they are unable to escape. Their First Amendment right to free speech is trumped by the political damage caused by the remarks.

The free speech issue is part of the controversy involving Senate Republican Leader Trent Lott (R-Miss.), who is still experiencing fallout from comments he made two weeks ago at a birthday party for retiring Sen. Strom Thurmond.

In complimenting Thurmond on his 100th birthday, Lott praised Thurmond's 1948 presidential campaign, which stood for racial segregation, among other things. In the two weeks since Lott spoke, there have been many calls for his resignation, endangering his future as Senate GOP leader.

"While Sen. Lott's speech is 'protected' under the First Amendment, his position as Republican Leader in the Senate is not," said GOP political consultant Rich Galen. "Senator Lott's inadvertent remark re-opened a wound which is so deep, so hateful, and so divisive that even after it heals - as it certainly will with time - it will leave an ugly scar."

Applying his own First Amendment litmus test, Galen posed two questions regarding Lott's comments.

"Was Mr. Lott attempting to intimidate or incite others to do bodily harm to 'a person or group of persons? ... Was Mr. Lott's intent even to anger a person or group of persons?" Galen asked. The answer to both questions, he said, is a definitive 'No.'

But Galen said Lott's remarks will not soon be forgotten by civil rights activists and Democrats. Regardless of First Amendment freedom of speech protections, Galen said Lott should step aside as the Senate majority leader.

"Mr. Lott presents a constant distraction and a constant worry to his colleagues on both sides of the aisle, in both chambers of the Capitol, and at both ends of Pennsylvania Avenue," Galen said. "There wouldn't have been any wound to grind sand into had Lott not said that in the first place."

At Least Lott Still Has His Tongue

"In the old feudal system, there were no First Amendment rights," said political researcher Paul Craig Roberts in his syndicated column. "The legally privileged were free to engage in hate speech and to verbally harass others, but any commoner who replied in kind could be sued or have his tongue cut out."

But Roberts said the current controversy surrounding Lott indicates the existence of a new feudal order in which rights are determined by "race, gender and handicapped status" and the minority victim reigns superior.

"Black Americans have been granted the right to be offended by any words they don't like and to extract retribution," Roberts said. "The offending speaker finds himself forced into contrition and humiliating apologies. Often the penalty is a destroyed career."

Roberts said the Lott controversy has exposed the harsh reality that the First Amendment has been "trumped by the race-based privileges of the new feudalism." The only constitutional guarantees that exist today, he said, are "the amendments that permit the income tax and direct election of senators."

Lott Compared to Farrakhan

"Trent Lott's predicament is not a constitutional matter," said Rep. Jesse Jackson, Jr. (D-Ill.), a member of the Congressional Black Caucus. "It's a matter of values, morality, and bipartisan politics."

According to Jackson, Trent Lott may reflect the values of the Republican Party, but he doesn't reflect those of the United States Senate and the American people.

"What do we want?" Jackson asked. "The Congressional Black Caucus wants Senator (Don) Nickles (R-Okla.) to treat Senator Lott like he treated Minister Farrakhan! We want Senator Nickles to put together a bi-partisan coalition and formally censure Senator Lott for his intemperate words. We want equal treatment under the law!"

Jackson is proposing that Nickles pursue the same method of justice that he prescribed in 1984 after Nation of Islam leader Louis Farrakhan called Judaism a "gutter religion" and told a Chicago radio audience, "Hitler was a very great man."

On June 28, 1984, Nickles introduced and current Senators Carl Levin (D-Mich.), Orrin Hatch (R-Utah) Joseph Biden (D-Del.), and returning Sen. Frank Lautenberg (D-N.J.) co-sponsored the 'Nickles Amendment' (S.A. 3363). It condemned the allegedly anti-Semitic statements made by Farrakhan. The Senate voted 95-0 in support of the amendment.

Jackson said he is calling on Nickles to have the "courage of his 1984 convictions" to censure Lott in the 108th Congress by offering a Senate resolution similar to the bi-partisan amendment that was unanimously passed 18 years ago.

'Stupid Speech' Has Political Consequences

According to Roger Pilon, founder and director of the Cato Institute's Center for Constitutional Studies, no politician is immune from the political consequences of exercising his or her First Amendment right to free speech.

"People in public office are supposed to be held accountable for their actions," Pilon said. "This is nothing extraordinary ... It's exactly the way the system is supposed to work."

Pilon said Lott has never been denied his right to free speech, but has spoken out one too many times without thinking. Lott is also not the first and won't be the last politician to do so, Pilon added.

"That Lott is in hot water now for his thoughtless remarks shouldn't surprise us," Pilon said. "He's not free from the consequences of stupid speech. He has no 'Get out of Jail Free' card."

E-mail a news tip to Michael L. Betsch.

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