Politics & Policy

Inverting the First Amendment

Free speech is under attack in New Zealand — and in Washington.

One of the problems with the current model of American jurisprudence, under which the word “unconstitutional” effectively means “at odds with the conscience of Anthony Kennedy, depending on what he had for breakfast that day,” is that nobody, including the justice himself, seems to know what Kennedy is going to think — or, more accurately, feel; it isn’t clear that he thinks at all — from day to day. Given that the only operative constraint on judicial supremacy at the moment is shame, we should be grateful that the Framers had the foresight to put some things into very plain language.

“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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” We have had a great many stupid and dishonest fights over what “an establishment of religion” means — as though the ratifiers of the Constitution, many of whom lived in states with established churches, did not know what an established church was. But religion makes people crazy with dread and loathing (cf. Thomas Jefferson, Thomas Paine) and so we’ll probably have that fight over and over again until we have a summary execution every time the elected dogcatcher of Oatmeal, Ohio, wishes the deputy dogcatcher a “merry Christmas.”

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But we’ve been pretty good about the non-religious parts of the First Amendment, the freedom of speech and the freedom of the press. As my colleague Charles C. W. Cooke often observes, the United States is practically unique in the world in its near-absolute commitment to free speech, which is shocking and wondrous for Charlie, an Englishman born at the close of the 20th century and therefore mostly unaccustomed to the enjoyment of English liberty.

They do things differently in New Zealand, another reminder that even among the English-speaking peoples, the American people are a tribe apart. New Zealand has just banned a highly regarded novel for young adults, titled Into the River. A Christian group, Family First, filed a complaint with New Zealand’s Film and Literature Board of Review protesting the novel’s depictions of sex and drug use, and its profanity.

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The book contains a coarse slang expression for the female genitalia; I am not sure which one it is, but, insofar as I am familiar with the options offered by the English language, almost any of them is a good synonym for the sort of people who ban books.

“It is currently being pulled from libraries, schools, and bookshops around the country,” reads the account in the Guardian. Those are chilling words, but they are not so chilling to my ear as “Film and Literature Board of Review.” No free country needs such a thing. Give it whatever anodyne name you like, it is nothing more or less than the polite and well-scrubbed version of the crowd of book-burners — book-burners with official sanction. It is not a crime to possess the book in New Zealand, but it is a crime to distribute it, so the novel must be passed around like samizdat in the old Soviet Union.

#share#American exceptionalists often are American universalists, but it is not the case that every country need do everything the same way as we do it here. I would not support an American version of Germany’s laws forbidding the use of Nazi symbolism and rhetoric, but I can understand why that seems prudent to the Germans. It probably seems prudent to the French, the Poles, the Czechs. . . . 

That being said, it is impossible for me to imagine how otherwise civilized people — inheritors of the same English liberty that informed our own Founders — could have so little confidence in their ability to conduct their own lives and raise their own children that they feel it necessary to turn to the bayonets of the state to suppress a novel aimed at teenage boys. Literary rapacity is not one of the characteristic vices of the 21st-century adolescent in the English-speaking world.

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Even so, I prefer the Kiwi censors to our own would-be speech police. We Americans are not immune from moral paroxysm, but our national gestures in the direction of prudery are, like the pornography at which they are sometimes directed, sterile. Conversely, Harry Reid and other leading Democrats have had a measure of success in persuading Americans that political speech ought to be policed in order to prevent our politics — our holy politics! — from being corrupted by money. That sex is cheap and money is dear is a lesson that cannot have been wasted on Mrs. Clinton, who is a personal acquaintance of Bill Clinton. So she argues for an inversion of the First Amendment, extending its protections to the pornography the Framers never contemplated and excluding from its protection the very political criticism that is the entire reason free speech was codified in the Bill of Rights in the first place. It is not coincidental that the fundamental issue in Citizens United was whether the government could ban the showing of a film critical of Mrs. Clinton.

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Even as we resist the moralistic censors, we might consider that their hearts are, in their way, in the right place. The political censors merit no such grace: They are naked totalitarians seeking to use the force of the state — men with guns, prison cells — to ensure that political debate is conducted exclusively on terms of which they approve and in media of their choosing.

The First Amendment is a guarantor of our basic civil liberties, assuming that Anthony Kennedy feels it to be so on any given Monday.

The failsafe is the next amendment.


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