Tuesday, January 17, 2012

Think Freedom of Speech Means the Government Cannot Compel Political Speech – Think Again

Of Course This Applies Only to Positions Conservatives Favor

The purpose of the Constitutional amendment that affirmed the rights of individual to speak freely without restraint from government is one of the great freedoms enshrined in the Constitution.  Yes, there are limits on free speech.  One cannot shout “Fire” in a crowded theater, and one cannot libel and defame others and claim free speech as a defense.  There are limits on obscene speech.

But other than those examples, and maybe a few others the role of government with respect to speech is to butt out.  This means to most of us that not only can government not prohibit political speech, but that government cannot compel speech, it cannot require that someone say something.  But Conservatives do not accept this.  They want Government to compel speech with which they agree.

This position has received a seal of approval from a Federal Appeals Court.

The Fifth U.S. Circuit Court of Appeals on Tuesday upheld a Texas law that requires women seeking an abortion to have a sonogram exam and to listen to a physician's detailed description of the fetus, including whether it has developed limbs or internal organs.

That’s right.  A Federal Court has ruled that the state of Texas can compel physicians to say certain things to patients.  These certain things are a political position in opposition to abortion, opposition to a medical procedure that is perfectly legal. 

Supporters of the law, enacted last year, say it is designed to ensure that women are fully informed about abortions and, ultimately, to discourage them from undergoing the procedure. It requires all women seeking abortions to have a sonogram, also known as an ultrasound scan, but it allows some women—such as those who certify they are rape victims—to avoid hearing a description of the fetus or embryo.

The conversations between doctor and his/her patient are among the most private and intimate conversations any two parties can have. The decision to have or not to have a sonogram is a medical decision that should be made by the physician and the patient. The government has no involvement in this conversation, none, absolutely none.  And to compel speech by one of the parties is surely a violation of that person’s Constitutional rights, as the trial court found.

In a constitutional challenge to the law, U.S. District judge Sam Sparks of Austin ruled in August that it violates physicians' free-speech rights by compelling them to "advance an ideological agenda with which they may not agree, regardless of any medical necessity, and irrespective of whether the pregnant women wish to listen."

But the Appeals Court eviscerated the rights of free speech of the physician.

A three-judge panel of the Fifth Circuit reversed Judge Sparks, concluding that the law merely requires physicians to provide "truthful, non-misleading information" and therefore doesn't violate their free-speech rights.

That is irrelevant.  The government has no right to compel speech regardless of the fact that it is truthful and non-misleading, which of course the compelled speech is not.  Physicians take an oath to work for the benefit of their patients, no government interference is required.

To see the absurdity of the Court’s position consider what would happen if Texas had passed a law requiring physicians to tell women how safe an abortion was and how they were entitled to an abortion under the law if they were so inclined.  After all, these are true statements and the court justified the ruling on the right of Texas to make sure woman were informed on abortion, and that could mean the positive aspects as well as the negative ones.

Does anyone think that any Court would support such a ruling?  Does anyone think that the anti-abortion Conservative movement would not immediately challenge such a law on free speech issues?  Does anyone, even those that support abortion rights think that such a law would be appropriate? 

No, they would not, but unlike Conservatives, those who support a woman’s right to choose believe in the Constitution.  They also believe that medical advice and medical decisions are best made by a patient in conslutation with their physician, their family and if appropriate their friends and their clergy.  Conservatives believe medical decisions are the role of government. 

Not very Conservative, are they?

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