The Corner

No, the Founders Would Not Have Banned Charlie Hebdo

If by chance you are keeping a list of the many things that are wrong with NPR, you will today be able to add this passage, written by a man named Edward Schumacher-Matos who just stepped down as the organization’s Ombudsman:

The French news media may have their ethical standards, but they are not American or sacred universal ones, and they shouldn’t be French ones either. The United States has never had absolute freedom of the press. And the framers of the Constitution—I once held the James Madison Visiting Professor Chair on First Amendment Issues at Columbia University—never intended it to. You wouldn’t know this, however, from listening to the First Amendment fundamentalists piping up from Washington to Silicon Valley.

Thus did a man who has made his living on the federal payroll come out in favor of censorship.

One of the reasons that you “wouldn’t know” that the framers opposed “absolute freedom of the press” is that . . . it isn’t true. Certainly, there have long been certain exceptions for slander and libel within the American constitutional order, as well as for explicit incitement to violence or to lawbreaking. Certainly, there have also been short periods during which the First Amendment was all but abandoned. (Indeed, one of these, reified by the execrable Alien and Sedition Acts, came almost immediately after the Bill of Rights was ratified.) But it is one thing to acknowledge that America has not always lived up to its promises, and it is quite another to suggest that the “framers of the Constitution” did not intend for the press to be free to print political or blasphemic cartoons at will. Whatever reasonable debates we might have about how campaign spending and explicit sedition are to coexist with a provision that starts “shall make no law,” there really is no question whatsoever that core political or religious speech is today protected to the hilt — and that the founding generation intended it to be so protected. To believe otherwise — that is, to believe the Founders would have tolerated the output of Ethan Allen but drawn the line at Charlie Hebdo is to ignore the relevant history.

One has to wonder whether, in addition to sitting in his chair, Schumacher-Matos has actually read James Madison’s words? “I do not know,” he writes,

if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would. It is one thing to lampoon popes, imams, rabbis and other temporal religious leaders of this world; it is quite another to make fun, in often nasty ways, of their prophets and gods.

This is a quite astonishing question for a professional journalist to be asking. As the Supreme Court has repeatedly ruled, under American constitutional law there is simply no such thing as “hate speech.” In Texas v. Johnson, the Court confirmed that “the government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable,” thereby echoing the insistence of a lower court that “the First Amendment does not recognize exceptions for bigotry, racism, and religious intolerance or ideas or matters some may deem trivial, vulgar or profane.” Indeed, as FIRE’s Sean Clark noted in 2006, the government may not prohibit much at all:

The First Amendment allows you to wear a jacket that says “Fuck the Draft” in a public building (see Cohen v. California, 403 U.S. 15), yell “We’ll take the fucking street later!” during a protest (see Hess v. Indiana, 414 U.S. 105), burn the American flag in protest (Texas v. Johnson, 491 U.S. 397 and United States v. Eichman, 496 U.S. 310), and even give a racially charged speech to a restless crowd (see Terminello v. Chicago, 337 U.S. 1). You can even, consistent with the First Amendment, call for the overthrow of the United States government (see Brandenburg v. Ohio, 395 U.S. 444). This is not a recent development in constitutional law—these cases date back to 1949.

It is perhaps worth our remembering that James Madison did not believe that his Bill of Rights was necessary to protect speech at the federal level at all. Because the Constitution is a charter of enumerated powers, he argued in Federalist No. 10, Congress enjoys no capacity to censor the press in the first instance and does not therefore need to be prevented from doing so:

Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.

The main opposition to this contention came not from those who hoped to censor the press, but from those who didn’t think that the assurance was good enough. As a result, the First Amendment was added as a reminder and as a check — to be used in the event that Congress and, post-Incorporation, the states should forget themselves. (Initially, Madison hoped to apply the law to the states as well, but he was voted down.)

If we are to take Schumacher-Matos’s complaint seriously – “it is one thing to lampoon popes, imams, rabbis and other temporal religious leaders of this world,” he writes, but “it is quite another to make fun, in often nasty ways, of their prophets and gods” — then we will have to account for the facts that a) there has never been a single blasphemy law on the federal books, that b) the vast majority of the censorship laws that exist at the state level were written either long before or long after the founding generation was considering such questions, and that c) there is a difference between “the founders” and “America at the time of the founding.” At it stands, it seems to me that Schumacher-Matos is merely projecting his own sensibilities into the past — holding, perhaps, that the Founders intended to prevent the mocking of Gods but that they never bothered to get around to it. Or, maybe, that our early sensitivity to a rambuctious press has now been lost.

It is often forgotten that the Founders were violent, often radical, revolutionaries, and that for the most part they were considerably more liberal than those who had come before them. Having cranked out cartoon after cartoon, pamphlet after pamphlet and copy after copy of Paine’s Common Sense, they largely understood that they had benefited immensely from the free press that they believed to be their birthright. The following examples, distributed by patriots during the revolution, were not only provocative and distasteful — qualities that Schumacher-Matos appears to consider as being beyond the pale; they were treasonous, too.

If we are to regard the disgraceful panic that prompted the Alien and Sedition Acts less as a blip and more as an indication of a general philosophical penchant for intellectual control, then we will have to explain why the country went back to normal so quickly after the Federalists lost control — and to explain, too, why the revulsion at the measures was so pronounced. We will also have to make clear why Thomas Jefferson and John Adams proceeded during the 1800 election as if the press were at liberty to say whatever it damn well pleased — seditious libel, blasphemy, and good old-fashioned decency be damned. In 1800, remember, John Adams was a sitting president. And yet Jefferson’s team felt at liberty to describe him as a “hideous hermaphroditical character which has neither the force and firmness of a man, nor the gentleness and sensitivity of a woman.” Jefferson, meanwhile, was cast by Adams’s men as a “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.” Admittedly I’m no expert, but I would imagine that there are enough micro-aggressions and examples of privilege in those two volleys to keep the smelling-salts brigade over at Salon employed for a decade or more.

It is always tempting to believe that our own age is somehow different, and that those who historically defended liberty would balk at doing so now if they recognized our contemporary challenges. All in all, this temptation should be resisted. For almost all of its history, America has had a rich and legally-protected tradition of satire, and it has resolved to protect that tradition despite its obvious downsides. Often, those indulging in the genre were wildly offensive. Frequently, they were misguided. But they were rarely, if ever, operating outside of the law or of liberal norms. Take a look at the following cartoons, if you will:

I entirely understand if your stomach turned over at these — as mine did — and, for that matter, I understand if you felt a little ill will toward their authors. Such feelings are natural. But there is a material difference between a person’s experiencing private revulsion at a particular caricature or sentence and his wishing aloud that men with guns would step in and punish the offender. With so many people confusing these two instincts these days one can only rejoice at the news that a high profile advocate of the latter approach has been removed from the public payroll.

EDITOR’S NOTE: This post has been updated since its initial posting.

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