At common law, all crimes consisted of two elements: an "intent" element and an "act" elements.
It was not a criminal conspiracy for two men to plan to rob a bank. The plan to rob the bank became a crime only when one or both did an act to further that intent, such as buying a hand gun to be used in the robbery.
Similarly, words alone do not constitute murder. If a man writes in his diary "I'm going to kill my neighbor," it is not murder, absent an act that effects the killing and a homicide.
The same principle is found in the First Amendment to our U. S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech."
In the words of our Supreme Court, "the Amendment (as it pertains to religion) embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be" (Abington v. Schempp, 1963).
The First Amendment absolutely guarantees one's right to believe that God wants all men to be cannibals. It does not, however, guarantee one's right to act on that belief. While you have an absolute right to believe that its okay to eat your neighbor, if you act upon that belief, you will face murder charges.
The amendment also guarantees free speech. And if Americans -- except within narrow exceptions -- have a right to voice their opinions publicly, they certainly have a right to have private conversations.
A man can express his bigotry in a private conversation in his home or with his wife without fear of prosecution. (I am talking here of private conversations expressing opinions. I am not talking about words used to discriminate or bully, or the yelling of "fire" in a crowded theater. Words that are used to work discrimination, or to bully or to libel move beyond the realm of opinion or belief, and become "verbal acts.")
Our first Amendment was a reaction to the intolerance of medieval prosecutions of opinions and beliefs deemed "heretical." It was also fashioned as a check on the religious intolerance of colonial America, as evidenced in The Colony Laws of the Massachusetts Bay Colony, Chapter 39.
It guarantees Americans both the right to speak as well as the right not to speak.
No man, for example, can be prosecuted for refusing to take an oath that he is not a member of the Communist party or Nazi party.
Jefferson and Madison saw the danger of trying to control people's beliefs. That's why Madison wrote the First Amendment which Jefferson explicated in his 1802 letter to the Dansbury Baptist Association:
"Believing with you that religion is a matter which lies solely between man & his god, -- that he owes account to none other for his faith or his worship, -- that the legitimate powers of government reach actions only, and not opinions, -- I contemplate with sovereign reverence that act of the whole American people (the 1st Amendment) which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state."
America came to this position knowing that no man was safe if he could be prosecuted for his thoughts -- his beliefs. Twenty-first century America seems to be rejecting that Jefferson/Madisonian notion.
To me, it is one thing to be a bigot. If you hate blacks or whites or Asians, or atheists or Catholics or Protestants or Jews or Muslims, etc., that may be wrong, evil, immoral or even reprehensible. But I fear punishing bigots solely on account of their beliefs. If people can be jailed, or be made to surrender their property, or be ostracized or deprived of their free speech rights for holding a belief deemed "politically incorrect" today, then they can just as well be deemed "bigoted" for holding the diametrically opposed "bigoted" belief tomorrow.
If today a man can be destroyed for holding traditional Catholic beliefs on marriage and homosexuality, recall that only a few hundred years ago that he would have been hauled before the Inquisition for not holding those same beliefs.
On the other hand, when a person acts upon his beliefs and wrongfully discriminates against and harms his neighbor, at that point rights must be balanced, wrongful discrimination punished and appropriate remedies fashioned.
But if people are going to be punished solely for their personal beliefs -- without acts in furtherance of those beliefs --— we are back to the days of the Inquisition -- an institution equally well-suited for enforcing the "orthodox beliefs" of whoever controls the government.
And if it is a crime to believe, others can be compelled to testify to prosecute that crime. In Nazi Germany, children were encouraged to report anything their parents said critical of the Nazi government. Parents went to concentration camps for their beliefs and political opinions.
The "establishment of religion" clause of the First Amendment is premised on the notion that as long as a man does not act to hurt his neighbor and only believes, that he should be left alone. Supreme Court Justice William O. Douglas said, "The right to be let alone is indeed the beginning of all freedom."
If America reaches the point where a man can be punished for his thoughts, his beliefs and his private conversations -- with no discriminatory act in furtherance thereof -- we will live in a police state, and suffer a reign of terror.
When men are punished for their beliefs, albeit repugnant beliefs, freedom is dead.
The First Amendment which protects both freedom of religion and speech, protects both favored and disfavored beliefs and speech. It also protects truthful as well as untruthful beliefs and speech. The alternative, requires thought-police," and a police state.
The proportional and appropriate remedy for bigoted beliefs or speech is counter-speech: Speech that informs, enlightens and holds the bigot's beliefs up to scrutiny - Speech that educates in the marketplace of ideas.
Posted Online: May 17, 2014, 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2014
John Donald O'Shea
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