Politics & Policy

The First and a Half Amendment

Free speech and artistic and intellectual expression have been controversial Western traditions since the rise of the classical-Greek city-state. When our Founding Fathers introduced guarantees of such freedoms to our new nation, they were never intended to protect thinkers whom we all admire or traditionalists who produce beloved movies like The Sound of Music.

The First Amendment to the Constitution instead was designed to protect the obnoxious, the provocative, the uncouth, and the creepy — on the principle that if the foulmouths can say or express what they wish and the public can put up with it, then everyone else is assured of free speech. 

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Every time the West has forgotten that fact — from putting on trial cranky Socrates or incendiary Jesus to routinely burning books in the Third Reich — we have come to regret what followed. Censorship, of course, is never branded as extreme and dangerous, but rather as a moderate and helpful means to curb the hate speech of a bald, barefooted crank philosopher who pollutes young minds and introduces wacky and dangerous cults, or a hatemonger who whips innocent people in front of a temple in between his faked and hokey miracles, or traitorous Jews who scribble and call their first-grade art the equivalent of Rembrandt or their perverted sexual fantasies the stuff of Hegel. Banning free expression is never presented as provocative, but always the final act of an aggrieved and understandably provoked society.

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Lately, the West in general and America in particular seems to have forgotten the free-speech pillar of Western constitutional government. In 2012 an obscure Egyptian-born videomaker, Nakoula Nakoula, made an amateurish Internet video criticizing Islam. Innocence of Muslims went global and viral. Violent demonstrations in the Islamic world followed. In an effort to placate Muslims, the Obama administration falsely blamed Nakoula’s video for the storming of the American consulate in Benghazi. Leading the Obama pack was the opportunistic secretary of state, Hillary Clinton, who saw in Nakoula a convenient fall guy to explain away U.S. security lapses in Libya. In reality, the killing of Americans there was the preplanned work of an al-Qaeda terrorist affiliate that took advantage of absent-minded U.S. officials.

No matter. President Obama scapegoated Nakoula at the United Nations — a majority of whose members ban free speech as a rule — with pompous promises that the prophet would not be mocked with impunity in the United States of America. Nakoula was suddenly arrested on a minor parole violation and jailed for over a year.

No one seemed to care that the unsavory firebrand Egyptian had a constitutional right while legally resident in America to freely caricature any religion that he chose. 

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The IRS under career bureaucrats like Lois Lerner targeted non-profit groups on the basis of their perceived political expression. The best strategy now for stifling free speech is to arbitrarily substitute the word “hate” for “free” — and then suddenly we all must unite to curb “hate speech.” The effort is insidious and growing, from silly “trigger warnings” in university classes about time-honored classics that trendy and mostly poorly educated race/class/gender activists now think contain hurtful language and ideas, to the common tactic of shouting down campus speakers or declaring them to be dangerous “extremists” who traffic in “hate speech” if their politics are deemed insufficiently progressive.

Cartoons of Mohammed on display in Garland, Tex.

More recently, the anti–sharia law activist Pamela Geller organized a conference of cartoonists in Texas to draw caricatures of the prophet Mohammed — in the fashion of the Paris cartoonists who were killed at the offices of the satirical magazine Charlie Hebdo.

As in the French case, jihadists showed up to murder the cartoonists. This time, however, two brave and skilled local Texas policemen stopped their attempts at mass murder.

What followed the botched assassination attempt, however, was almost as scary. Commentators — both left-wing multiculturalists and right-wing traditionalists, from talk radio and Fox News to MSNBC and Salon — blasted Geller for supposedly stirring up religious hatred.

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Geller, and not the jihadists who sought to kill those with whom they disagreed, was supposedly at fault. Her critics could not figure out that radical Muslims object not just to caricatures and cartoons, but to any iconographic representation of Mohammed. Had Geller offered invitations to artists to compete for the most majestic statue of the Prophet, jihadists might still have tried to use violence to stop it. Had she held a beauty pageant for gay Muslims or a public wedding for gay Muslim couples, jihadists would certainly have shown up. Had she offered a contest for the bravest Islamic apostates, jihadists would have galvanized to kill the non-believers. Had she organized a support rally for Israel, jihadists might well have tried to kill the innocent, as they did in Paris when they murderously attacked a kosher market.

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Geller’s critics also do not understand that radical Islam has already cut a huge swath out of American free speech through more than a decade of death threats. Ever since 9/11, they have largely succeeded by demanding special rules for public discourse about Islam in a way accorded no other religion. Disagree, and one is branded “Islamophobic,” as that now-ubiquitous buzzphrase “hate speech” magically pops up. Of course, when other so-called artists have desecrated Christian images, they operated on the belief not just that they would not be harmed, but that, as in “Piss Christ,” they would actually be subsidized by the U.S. government.

One wonders what the current apologists would have said about Nazi book burning. Did not Freudian writers and modern artists grasp that their work would offend traditional National Socialists who sought only to bring back balance to artistic and literary expression? Why then would they continue to produce abstract paintings or publish Jungian theories about sexual repression, when they must have known that such works would only provoke blood-and-soil Nazis? And had Jews just left Germany en masse by 1935 or gone into hiding, would not Hitler have cooled his anti-Semitic rhetoric? Why did some Jews insist on staying in a clearly Aryan nation, when they must have known that their ideas — indeed, their mere presence — could only provoke Nazis to violence?

Apparently there is no longer a First Amendment as our Founders wrote it, but instead something like an Orwellian Amendment 1.5.

Apparently there is no longer a First Amendment as our Founders wrote it, but instead something like an Orwellian Amendment 1.5, which reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press — except if someone finds some speech hurtful, controversial, or not helpful.

Cowardice abounds. When artists and writers mock Mormonism in a Broadway play like the Book of Mormon or use urine or excrement to deface Christian symbols, no Christian gang seeks to curb such distasteful expression — much less to kill anyone. Every religion but Islam knows that its iconography is fair game for caricature in the United States; none sanctions assassins. Jihadists seek to make this asymmetry quite clear to Western societies and thereby provide deterrence that gives Islam special exemption from Western satire and criticism in a way not accorded to other religions. And they are enabled by Westerners who prefer tranquility to freedom of expression.

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Among those who attack free expression the most loudly are progressives who do not like politically incorrect speech that does not further their own agendas. The term “illegal alien,” an exact description of foreign nationals who entered and reside in the United States without legal sanction, is now nearly taboo. The effort to ban the phrase is not because it is hateful or inaccurate, but because it does not euphemistically advance the supposedly noble cause of amnesties and open borders. Of course, the politically correct restrictionists have no compunction about smearing their critics with slurs such as xenophobe, racist, or nativist.

If a Christian cake decorator does not wish to use his skills to celebrate gay marriage — an innovation that both Hillary Clinton and Barack Obama opposed until very recently — on a wedding cake, then he is rendered a homophobe who must be punished for not using his artistic talents in the correct way.

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Note that we are not talking about nondiscrimination concerning fundamental civil rights such as voting, finding housing, using public facilities, or purchasing standard merchandise. Meanwhile, are we really prepared to force gay bakers to decorate Christian wedding cakes with slogans that they find offensive or homophobic? Or to insist that an Orthodox Jewish baker must prepare a cake for a Palestinian wedding featuring a map of the Middle East without Israel? Or to require a black-owned catering company to cook ribs for a KKK group? Instead, radical gays demand the exclusive right to force an artist — and a cake decorator is an artist of sorts — to express himself in ways that they deem correct. 

Without free speech, the United States becomes just another two-bit society of sycophants, opportunists, and toadies who warp expression for their own careerist and political agendas. How odd that we of the 21st century lack the vision and courage of our 18th-century Founders, who warned us of exactly what we are now becoming.

NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution and the author, most recently, of The Savior Generals.

 

Victor Davis Hanson — NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution and the author, most recently, of The Second World Wars: How the First Global Conflict Was Fought and Won.

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