Magazine July 27, 2020, Issue

Don’t Cancel the First Amendment

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The least powerful gain the most from it

Of all the strange and fanciful notions that have bubbled up to the surface of our politics in recent decades, the idea that the First Amendment to the United States Constitution represents a boon to the “ruling class” must be the silliest one of all. 

And yet, bubbled up it most certainly has. Per a poll conducted last year by the Campaign for Free Speech, 59 percent of Americans between the ages of 18 and 34 agreed with the proposition that the First Amendment should be altered to “reflect the cultural norms of today,” 50 percent favored the criminalization of “hate speech,” and 47 percent contended that the punishment for violation should be jail. Such views are increasingly common on America’s college campuses, where the exceptionally robust protections of free speech that are guaranteed by the Constitution are habitually regarded as a bug rather than as a feature. Unless this conviction is checked before its advocates come to populate the nation’s centers of power, the First Amendment as we have known it will become a thing of the past. 

Writing in the New York Times in 2017, Professor K-Sue Park of Georgetown University suggested that the ACLU has been wrong to defend free speech as indiscriminately as it traditionally has, and, worse still, contended that “by insisting on a narrow reading of the First Amendment, the organization” has provided “free legal support to hate-based causes.” The flaw in the ACLU’s approach, Park proposed, is that “the power of speech remains proportional to wealth in this country, despite the growth of social media.” If the ACLU wants to avoid the “wrong side of history,” she concluded, it should think more carefully about which clients it elects to defend.

Park is disastrously wrong — both in theory and in practice. The best guarantor of free and open debate is a legal regime that strictly prohibits the government from discriminating against anyone, and the best way of maintaining such a legal regime is to decline to privilege one target of censorship over another. It is always tempting to draw distinctions between “good” and “bad” speech, but to do so in any systematic way is to abandon the mutual guarantee that is the prerequisite to keeping the First Amendment alive. Americans will always disagree as to what is “offensive,” “dangerous,” or “beyond the pale,” but they have proven broadly happy to live and let live provided that their enemies are treated in the same way as are they. The introduction of a subjective hierarchy into the equation would ring the death knell of such a settlement — to the detriment of all. 

I write “all,” but, in practice, it would be the powerless who would suffer the most. Why? Well, because the powerful, popular, and well-connected have less need for their speech to be protected — by the government or by anyone else. Park writes that “the power of speech remains proportional to wealth in this country,” which, if true, strikes me as an extremely good reason to keep the regulation of speech out of the hands of the powerful, no? It never ceases to astonish me that over the last four years we have been told simultaneously that (1) the president is a dangerous fascist, that (2) the political system is the mere handmaiden of the wealthy, and that (3) the government should decide what may and may not be said. Whether they grasp it or not, what the advocates of “hate speech” laws are proposing is that the vanguard of the American “resistance” should have its rhetoric superintended by the Trump administration. 

Proposals in favor of “hate speech” legislation are not put like this, of course. Rather, they are cast as broadsides against “incitement” or “violence” and in defense of “safety.” Writing in the Washington Post last year, Richard Stengel argued that the lack of room for a “hate speech law” was a “design flaw” within the U.S. Constitution. America’s fundamental charter, Stengel submitted, “should not protect hateful speech that can cause violence by one group against another.” 

To the uninitiated, this argument sounds innocuous enough — who, after all, is in favor of violence? — but I must confess that it made me laugh out loud, for, whether Stengel knew it or not, he was making precisely the same case as has been used by every liberty-destroying tyrant in the history of the world. 

“This speech is different because it threatens public safety” was the argument advanced by the Slave Power against the abolitionists, the argument made against Martin Luther King Jr. during the civil-rights movement, and the justification for the imprisonment of Eugene Debs. It is telling, perhaps, that when the Supreme Court ruled in 1919 that “falsely shouting fire in a theatre” was not protected by the First Amendment, the case at hand did not actually involve a fire, a theater, or any false information, but the conviction of a pacifist protester who objected to America’s involvement in World War I and had taken to handing out leaflets that discouraged Americans from joining the army. If your ruling relies heavily upon a euphemistic exaggeration, as that case did, there’s almost certainly something wrong with it. 

To review the history of the world is to recognize almost instantly that when governments are permitted to punish speech that they regard as “hateful,” it is the rebels, rather than the stalwarts of the establishment, who get it in the neck. Stengel notes, “Even the most sophisticated Arab diplomats that I dealt with did not understand why the First Amendment allows someone to burn a Koran.” I’ll tell them: So that others may burn the flag or agitate against slavery or demand female suffrage or call for an immediate peace. Everybody thinks that his own views are correct. The government’s role is to stay out of the debate.

I am unapologetically of the view that my right to free speech is innate and unalienable, and that I have no more obligation to explain my desire to keep it to the would-be arbiters of taste than I do to explain why I elect to keep on breathing. But for those who dissent from this view, I would offer the following argument instead: Because you never know when you might need it. In his famous address “How Can American Slavery Be Abolished?” Frederick Douglass cast untrammeled speech as the only stone that he, a former slave who possessed little formal power, was able to throw at Goliath. “Thrones, dominions, principalities, and powers, founded in injustice and wrong,” he wrote, “are sure to tremble, if men are allowed to reason of righteousness, temperance, and of a judgment to come in their presence.” Notably, Douglass did not solely criticize the vicious censors of the South, who, he said, had prohibited any sentiments that might cause the listener to “banish the auction block and break every chain,” but also those in the free North who had condemned his organization for speaking in such a way as to “incite” the mob. “Are we going to palliate and excuse a palpable and flagrant outrage on the right of speech,” Douglass asked, “by implying that only a particular description of persons should exercise that right?”

Well, are we? 

Asked how the civil-rights movement gained such extraordinary momentum in such a short period of time, Walter Fauntroy said, “Almighty God and the First Amendment.” The favor of the former is notoriously tricky to guarantee, but, mercifully, the latter is nailed deep into our constitutional structure, there to be enjoyed by future Douglasses and future Fauntroys and everybody else besides. In this, America remains exceptional among the nations of the world — a fact that should inspire gratitude and celebration, not grumbling, envy, and vague, self-pitying chatter that runs contrary to the mountain of evidence that history has to offer.

This article appears as “Where All May Speak ” in the July 27, 2020, print edition of National Review.

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