By Linda J. Walder
Today, more than ever, we are called to question the meaning and extent of individual freedom. Liberty is construed by some, and even defined as the “ability to do as when pleases,” but those who believe this need to understand the United States Constitution as it was intended and has been interpreted by the United States Supreme Court for generations. Even if one is a strict constitutionalist, it is not written in the Constitution itself or in the Bill of Rights or in any Constitutional Amendments that individual liberty is unconditional.
Perhaps one of the most famous Supreme Court cases addressing the First Amendment right to freedom of speech was Schenck v. United States in 1919 which held that the Defendant’s speech in opposition to the draft during World War 1 was not protected free speech under the First Amendment of the United States Constitution. Justice Oliver Wendell Holmes is quoted (and misquoted too) for writing that “you cannot falsely yell fire in a crowded theater,” as the sort of speech that would not be protected under the First Amendment. The Supreme Court, legal scholars and political writers among others have since examined and enumerated on Holmes’ interpretation in court cases and legal analysis probably thousands of times over. Today, in 2020, we look to see if the speech falls into a short list of well-defined historical exceptions to the First Amendment; obscenity, defamation, fraud, speech that is integral to criminal conduct are examples of unprotected speech.
The point of the above very cursory example is to illustrate that even one of our most sacred liberties, the right to free speech, has some limited exceptions. It is these exceptions, these checks on individual liberty that actually protect everyone’s liberty to live freely, safely and healthfully in our society.
Today, some are questioning whether the government has the right to mandate that people wear masks as a preventative measure against the spread of Covid-19. Some individuals argue that they are not afraid of getting the Covid-19 because they are sure they will recover if they do; they do not believe that the Covid-19 is as severe or deadly as the media portrays it; or the government has no right to infringe upon their right not to wear a mask. These are just a sampling of some of the arguments. However, none of the these or other arguments address how the choice not to wear a mask could impact the health, albeit unknowingly, of someone else.
Have we become a society where individuals only care about something if it directly impacts them? Perhaps in some ways yes we have. Up until recently, for example, most people did not know or care much about Autistic adults. The Daniel Jordan Fiddle Foundation was the first organization, twenty years ago to focus on adult Autism and it has taken nearly two decades and a growing number of the population affected to create the awareness that Autistic children become Autistic adults and that they deserve the respect and opportunities that others have as a matter of human rights. In this example, and many others, as more and more people become affected, more and more people care about an issue. But is that aspect of “human nature” one we are proud of or should we work to change that self-centered perspective of caring only if affects one’s own life?
Further, even if an individual is not directly impacted by something, if the government intervenes with laws or regulations for the protection of other individuals, or society as a whole, is that an infringement of personal liberty? Today, more than ever in our lifetime, we are called to focus outside of our individual bubbles, bursting them to take a look at how other people are impacted by our choices and biases. As our country revolts against longstanding injustices every person is going to be impacted no matter how much one shelters in place. Because of our interconnectivity there is no escaping.
If we are to grow from recent events, we must burst forth from our islands of individual existence because the reality is that technology, media and global events are forcing our individual islands to merge whether one likes it or not. It is no longer a world of Darwinian survival of the fittest because as we have seen, we live today in an interdependent world. In fact, individual liberty has never been unconditional which does not mean we have or should relinquish our individual freedom. Rather, we should consider that the individual’s freedom exists most fervently if we value each other by making choices that strengthen and better society as a whole.
Autism For A Lifetime 