Dispatches from the Creation Wars

Whitehead Gets First Amendment Wrong

Remember the woman who screamed out, “Except Obama! Except Obama! Help us Jesus!” in the House chamber recently during the reading of the constitution? This is being defended as free speech:

The woman who burst out with “except Obama” when New Jersey Democratic Rep. Frank Pallone was reading in Congress the Constitution’s requirement that the president be a “natural born Citizen” was simply exercising her free speech rights, according to a law team representing her.

“This case is not about President Obama’s eligibility for office or Theresa Cao’s affiliation with the birther movement – it’s about free speech in its purest sense,” said John W. Whitehead, president of the Rutherford Institute.


Whitehead is representing the woman in the case. Now let me say first that I have a great deal of respect for John Whitehead. He is by far the most intellectually honest of all the religious right attorneys (Jay Sekulow is just as smart but he is intellectually dishonest to the core). Whitehead is an outspoken opponent of Bush’s unconstitutional policies in the war on terror and he is a genuine civil libertarian.

But I think he goes too far on this one. While I am a virtual free speech absolutist, as any of my readers knows, I still recognize the need for reasonable time, place and manner restrictions. She certainly has the right to express her opinion about Obama in a virtually infinite number of ways — she can write letters to the editor, take out billboards, preach to people on the street, hand out fliers, go on the radio, post it on a blog, put out a podcast, and so forth. All of those are exercises of her freedom of speech.

But that doesn’t mean she can interrupt a session of Congress. As much as I might love the idea of heckling members of Congress from the gallery, it should be obvious that if we were to allow that to happen it would be chaos in the chamber and nothing would get done.

Free speech does not mean free to speak up in any setting at any time. A student can’t decide to get up in the middle of school classroom and sing a song or recite a poem. You can’t stand up in the middle of a courtroom during a trial and yell at the judge. You can sing your song in a million other settings, and you can express your disapproval of the judge in innumerable other settings. But you can’t disrupt official proceedings and expect the First Amendment to protect you.

Look, I don’t think the woman should be seriously punished. Give her a slap on the wrist, a $50 ticket for disrupting the proceedings and call it good. But even a free speech absolutist like me has to recognize a reasonable time, place and manner restriction like this to be valid.