The ACLU and the Wandering Jew
By: Shlomit Auciello
Tags: Expression, First Amendment, Bill Of Rights, ACLU, Free Speech

Letter From Away — June 12, 2021

I’m a wandering Jew. I can say that, at least I think I can, for two reasons. First, the facts I assert can be proven by objective scrutiny. Second, because I live under the First Amendment to the United States Constitution.

At least for now.

I don’t know if kids today use the phrase, “It’s a free country,” to defend themselves from the taunts of playmates, as we did when I was a child. We also said things like, “Sticks and stones may break our bones, but words can never hurt me,” and “I’m rubber, you’re glue. Anything you say bounces off me and sticks to you,” and “He who smelt it, dealt it.” Of course, none of these are necessarily true.

The right to freely express myself is protected, with only a handful of legal exceptions. Supreme Court decisions, mostly made within the last 100 years, removed speech protections for making or distributing obscene materials and burning military draft cards to protest a war. The most recent exceptions relate to the rights of students; it is not considered free speech to print something in a school newspaper over the objections of the school’s administrators or to advocate for illegal drug use at a school-sponsored event.

The earliest revision to the First Amendment was in 1919 and allows limits to speech that is likely to incite immediate violence or retaliation by those who hear or read what is spoken.

Some of you know I do a bit of standup comedy. I’ve been watching the challenges faced by those who work with humor. In addition to the past year of closed venues, comics have fallen prey to political rectitude. When I told my friend, I’ll-call-her-Jane, that my Wandering Jew plant had gone crazy over the winter, she said she didn’t think it was acceptable to call it that. I’ll-call-her-Jane is not alone in questioning my right to speak freely.

Forty-some years after it famously defended the rights of Nazi Party members to parade the streets of predominantly-Jewish Skokie, Illinois, the American Civil Liberties Union has begun to cherry-pick the rights of those expressing political views that offend its membership. David Goldberg, the A.C.L.U. lawyer who protected the Nazis in Skokie, recently told The New York Times he feels it is, “ … more important for A.C.L.U. staff to identify with clients and progressive causes than to stand on principle. Liberals are leaving the First Amendment behind,” Goldberg said.

As Maine faces the possible return of one of our most vitriolic politicians, Paul LePage, I sympathize with those who want to scream, “Shut up!” at those who promote lies and division. I don’t want anyone to be subjected to sexism, racism, ageism, homophobia, or any cruel speech. But the laws that protected me, when I knocked on doors the raise awareness for voting rights in the 1960s, marched to end an unjust war in the 1970s, rallied for nuclear disarmament in the 1980s, and stood against the war in Afghanistan early in this century, also protect those who taunt me for the Wandering Jew that I am.

To be clear, the courts differentiate between hate speech and hate crimes; it is not acceptable to act on the slurs one speaks or hears or reads. The courts generally do not, and should not, differentiate between, for example, body shaming carried out by those who hunt for laughs on facebook at the expense of total strangers unlucky enough to be caught on camera in a fashion faux pas, and those who deride politicians for their unhealthy eating habits rather than their dangerous policy decisions.

I don’t like much of what our national conversation has become, but I am more bothered by the stifling of opinion than by the rancid ideas of those with whom I disagree. It’s a short hop from the rejection of cruel speech on the part of neo-Nazis to the criminalization of non-Christian worship.

The difference between an insult and a joke is often in the ear of the listener. Before we totally lose this distinction, and our sense of humor with it, let’s revisit the 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.”

Shlomit Auciello is a writer, photographer, and human ecologist who has lived in Midcoast Maine since 1988. Letter From Away has appeared online and in print, on and off since 1992, and is published here on a weekly basis.