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Tory Jackson

Tory Jackson

A recent article by Bismarck Tribune reporter Jack Dura highlighted the use of social media by state legislators.

The article referenced three controversial Facebook posts by lawmakers. A few years ago, Rep. Dwight Kiefert, R-Valley City, insinuated that homosexuality is a mental illness. Earlier this year, Rep. Rick Becker, R-Bismarck, shared a meme equating federal aid with being raped in the shower, and Rep. Mary Adams, D-Grand Forks, shared a meme comparing President Trump to Adolf Hitler. It’s safe to assume there are other examples that have escaped widespread public attention.

While some might be offended or disturbed by these posts, they should be even more disturbed by calls for government regulation of offensive speech.

Dura’s article quotes House Minority Leader Josh Boschee, D-Fargo, asking the question, “who defines ‘offensive?’” Apparently Boschee thinks that’s a job for the government. He sees a possible role for the newly empaneled Ethics Commission in providing “accountabilities to saying something offensive.”

Commission Chairman Ron Goodman believes “it’s too soon to say” if the Ethics Commission would consider a policy or guidelines regarding offensive speech by elected officials, but he seems open to the possibility.

Actually, it’s not too soon to say. The Ethics Commission should not wade into the issue of offensive speech by public officials because it doesn’t have the legal authority to do so (aside from the obvious First Amendment concerns). Those who would turn the Ethics Commission into the thought police should sit down and read the constitutional and statutory provisions that created and govern the new body.

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The Ethics Commission came into being as result of an initiated constitutional measure in 2018 and an implementation bill during the last legislative session. The Ethics Commission’s powers are fairly narrow, primarily focused on lobbying, campaign contributions and gifts to public officials. The commission is empowered to make “rules related to transparency, corruption, elections and lobbying.” It can also investigate public complaints related to those issues.

You will search in vain for any provision in the constitutional measure (now Article XIV of the state constitution) or the new statutory changes (contained in House Bill 1521) giving the Ethics Commission any power to regulate or restrict social media use, or any other form of expression, by public officials.

Even though the commission is in its infancy, it’s still shocking that the house minority leader and commission chairman have such a tenuous grasp on the purpose of the Ethics Commission and its constitutional and statutory authority. Even more shocking is their casual embrace of the idea that a government body should be regulating speech.

We live in an era of knee-jerk outrage, where many demand the right to shut down speech they deem offensive. But the answer to offensive speech is not less speech; it’s more speech. If you find a particular social media post offensive, post a comment in response, write a letter or email, send a letter to the editor, or inform your friends and neighbors. A lawmaker’s constituents can give the ultimate expression of disagreement by voting him or her out of office in the next election. That’s how a free society is supposed to function. Looking to a government agency to restrict certain types of speech is the stuff of totalitarian regimes.

Whether you agree or disagree with a specific comment, we’re all better off knowing more about what public officials really think. And for all its drawbacks, social media can serve a useful purpose in that regard.

Politicians sometimes say stupid things, and there’s always someone likely to take offense. The Ethics Commission doesn’t have the legal authority to stop that. Nor should it.

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Tory Jackson is an attorney and writer. His legal practice involves real estate and business matters, with a particular focus on historic rehabilitation projects. He holds degrees from Bismarck State College, the University of Virginia and Harvard Law School. He lives in Bismarck, where he was born and raised.

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