Indiana's Bill of Rights has a slightly different version of the First Amendment.
Section 9. No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever; but for the abuse of that right, every person shall be responsible.
That provision has been most ignored between 1851 and 1993. Then came Price v. State, and the limitation clause came into focus.
Though earnestly given, the promise that § 9 shields all expression from penalty save that which impairs a state prerogative may appear illusory, given the broad sweep of those prerogatives. The State may exercise its police power to promote the health, safety, comfort, morals, and welfare of the public. State v. Gerhardt (1896), 145 Ind. 439, 44 N.E. 469. In furthering these objectives, it may subject persons and property to restraints and burdens, even those which impair "natural rights." Weisenberger v. State (1931), 202 Ind. 424, 429, 175 N.E. 238, 240. Further, courts defer to legislative decisions about when to exercise the police power. See Peachey v. Boswell (1960), 240 Ind. 604, 167 N.E.2d 48, and typically require only that they be rational. From this, one might conclude that the Indiana Constitution permits punishing expression any time the courts are willing to indulge the presumption that the statute which penalizes it is rational.
Such a conclusion fails to recognize, however, that in Indiana the police power is limited by the existence of certain preserves of human endeavor, typically denominated as interests not "within the realm of the police power," see Milharcic v. Metropolitan Bd. of Zoning Appeals (1986), Ind. App., 489 N.E.2d 634, 637, upon which the State must tread lightly, if at all. Put another way, there is within each provision of our Bill of Rights a cluster of essential values which the legislature may qualify but not alienate. See Palmer, supra, at 65-66. A right is impermissibly alienated when the State materially burdens one of the core values which it embodies.[5] Accordingly, while violating a rational statute will generally constitute abuse under § 9, the State may not punish expression when doing so would impose a material burden upon a core constitutional value. We now proceed to apply this standard to Price's case.
Price at 959 -60.
Today, I was reading Is this free speech? (Engelsberg ideas) when I glimpsed a different history for Section 9:
From there, Dabhoiwala contrasts the bluntness of the US First Amendment with the sophistication of its contemporaneous equivalent in the Declaration of the Rights of Man and of the Citizen, drawn up in revolutionary France. ‘Every citizen may, accordingly, speak, write, and print with freedom’, asserts the Declaration, ‘but shall be responsible for such abuses of this freedom as shall be defined by law.’ That ‘but’, on Dabhoiwala’s account, is all-important. On one side of the Atlantic, we have an ‘absolutist’ account of free speech that broaches no limitations; on the other, a ‘balanced’ one that ascribes responsibilities to free-speaking citizens. On one side, protection against government interference; on the other, protection all round. On one side, American exceptionalism; on the other, European egalitarianism.
First, that such language is the product of egalitarianism. That Indiana's Bill of Rights begin by incorporating the Declaration of Independence's preamble,
Section 1. WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.
I say our state Bill of Rights is also a product of egalitarianism. Then, too, there is the idea of "protection all round". That would see not to have a part to play in discussing Indiana's free speech rights. Our Bill of Rights limits the power of state government, right? Yes, kind of.
The same Bill of Rights addresses libel.
Section 10. In all prosecutions for libel, the truth of the matters alleged to be libellous, may be given in justification.
Libel affects private interests, too.
And some more history, of which I was unaware of:
And that’s it? Not nearly. What is Free Speech? is a complicating text; Dabhoiwala revels in highlighting the hypocrisies, ironies and paradoxes of theories of free speech. Its best pages detail the non-unanimous and almost-accidental way in which the US First Amendment came into being, and then how it was jettisoned almost immediately by individual states. It was Pennsylvania, in 1789, that first drew on the French Declaration to draft its own law that included a reference to citizens ‘being responsible for the abuse of that liberty [of free communication]’. Many others followed, to the point that, as Dabhoiwala writes, ‘By the middle of the twentieth century, almost every state constitution defined free speech as a qualified right.’ Which is to say, there was push and pull before the First Amendment became what it is today, an almost religious precept. The course of free speech never did run smooth.
Case law and the 14th Amendment establish a floor for state interpretations of their free speech provisions. Federal precedent is based on the theory that only governments are affected by the First Amendment.
Interpreting the abuse clause, then need must look at state interpretations of their abuse clauses. What particularly interests me now is the extent of protection given to private actions, and then the line between abuse and protection of free speech.
The Price court referred to other states in footnote 3: "Margaret A. Blanchard, Filling in the Void: Speech and Press in State Courts prior to Gitlow, in The First Amendment Reconsidered 14, 20 (Bill F. Chamberlin & Charlene J. Brown eds., 1982)."
I also hold another idea that make Indiana's Article 9 broader than the federal First Amendment: it protects a citizen's conscience. That idea still needs to be explored.
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