Our rights extend beyond mere verbs

Freedom of speech is not just the right to speak; it is the freedom to read, too

Photo by Bermix Studio on Unsplash

Buried words, like buried treasures, sometimes surprise and enrich. But buried landmines only create problems now, and later.

Such is the case with a passage buried in a 71-page Iowa Supreme Court decision last month.

In a unanimous ruling, the court decided that a law authorizing Iowa prisons to block inmates from receiving printed materials containing nudity was constitutional.

The justices laid out a cogent rationale for their conclusion: Some inmate free-speech rights must give way inside prisons to protect safety and security. One such permissible restriction, the court said, allows government in Iowa to ban inmate access to commercially printed materials depicting nudity.

But the discussion did not stop with that.

A TROUBLING LEGAL THEORY

Buried within Justice Christopher McDonald’s separate concurrence is an idea that should concern every Iowan — not because it deals with prison censorship, but because it advances a legal theory that reaches far beyond prison walls.

Justice Christopher McDonald, during oral arguments in the appeal by nine Iowa prison inmates. Photo from Iowa Supreme Court video.

McDonald agreed with the court’s majority in the lawsuit brought by nine inmates wanting access to magazines with nude images. But he rejected his fellow justices’ legal reasoning.

The court’s error, McDonald urged, came in holding that inmates, or any Iowan for that matter, has a right to receive information under the state constitution.

The inmates’ claim fails for two reasons, McDonald asserted. First, the Iowa Constitution contains no language expressly protecting a right to receive information. Even if it did, he continued, materials depicting nudity were historically prohibited in the state when the constitution was adopted in 1857.

JUSTICE’S VIEW AFFECTS BARE FACTS, TOO

If the Supreme Court followed McDonald’s approach, no one — not just those in prison — could claim a right to stay informed or to obtain facts and data without government interference. In McDonald’s view, Iowans would have no right to listen, no right to hear, no right to read, no right to receive, regardless of whether it involves nudity or just bare facts.

He argued, “The text of the state constitution does not support the conclusion that there is a state constitutional right to receive information. The constitution protects the right to ‘speak, write, and publish sentiments on all subjects.’

“These are all active, expressive verbs. They protect the right of the individual to express or communicate one’s own sentiments. None of these verbs encompasses, by its ordinary meaning, a passive right to receive or possess materials created by others.”

McDonald went on: “It might be urged that the right to publish is inherently relational and thus implies an audience with a correlative right to receive, but Article I, Section 7 [of the Iowa Constitution] protects the act of publishing, not the act of receiving.”

OTHER JUSTICES DISAGREE

That even one justice of the Iowa Supreme Court would advance this view is troubling.

His opinion received pushback from other justices. Writing for the court’s majority, Justice Dana Oxley dismissed his analysis:

Justice Dana Oxley. Iowa Judicial Branch photo.

“Justice McDonald’s opinion concurring in the judgment would have us hold that … apparently no Iowa citizen has the constitutional right to receive information of any type, period. The liberty of the press would mean little if it merely protected the right to publish but not the right to distribute or receive that which is published.

“Freedom of speech is not merely freedom to speak; it is also freedom to read. Forbid a person to read and you shut him out of the marketplace of ideas and opinions that it is the purpose of the free-speech clause to protect,” the Oxley majority continued.

“It is well established that the right to hear — the right to receive information — is no less protected by the First Amendment than the right to speak. Indeed, the right to hear and the right to speak are flip sides of the same coin.”

TESTING McDONALD’S LEGAL ANALYSIS

One way to test Justice McDonald’s analysis of the Iowa Constitution is to apply his legal rationale to other questions having nothing to do with publications containing nudity.

Consider, for example, voting rights.

What value is the right to vote if there is no right to have your ballot counted? The Iowa Constitution is silent on the right to have your ballot received and tallied.

Then there is Iowans’ right to keep and bear arms.

Following McDonald’s reasoning, gun-owning Iowans would lack a right to fire those weapons. After all, the words “discharge,” “fire” or “shoot” appear nowhere in the text of the constitution.

THERE ARE IMPLIED RIGHTS, TOO

But constitutional rights cannot be reduced to isolated verbs divorced from context.

As Justice Oxley and court’s majority recognized, the right to publish necessarily implies a right to receive what is published. Strip constitutional language of those necessary implications, and the rights themselves become little more than empty promises.

Iowans have known that since 1857, despite their state constitution lacking a laundry list of verbs.

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