Ranking the Bill of Rights, Number 1: The First Amendment

It’s been nearly eight months since we started our journey by placing the Second Amendment in its rightful place: last. The problems that plagued the Second Amendment—lack of clarity and dubious public policy justifications—are perhaps the greatest strengths of our first-place finisher,* the Fightin’ First! I present to you the First Amendment:

*Of course, its clarity and phenomenal public policy justifications are its strengths.

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.

The First Amendment is wide-reaching: It protects freedom of speech and of the press, freedom of assembly, and the right to petition. It also has the Establishment and Free Exercise clauses, which manage the relationship between religion and state. All these components have contributed to the First’s first-place finish, but what propels the First Amendment to the top of these rankings is its first and deservedly foremost freedoms of speech and press.

Freedom of speech and the press

The U.S. is unique among most countries in its seemingly unqualified* protection of freedom of speech and the press.** The European Convention on Human Rights provides for Freedom of Speech except when restrictions are necessary “for the protection of health or morals,” “for the protection of the reputation and rights of others,” and for other concerns like national security. In France, free speech may be limited “[if it is necessary] to respond to the abuse of this liberty, in the cases determined by the law.” Accordingly, in France, publicly denying the Holocaust and inciting racial hatred are not protected by free speech. In Germany, free speech may be limited “to protect personal honor” or “young persons.” England abides by the European Convention but has additional limitations, including the criminalization of the incitement of racial and religious hatred and ridiculously strict defamation laws. In India, freedom of speech may be limited “to protect the integrity of India” and for “decency and morality.” Some countries, like China, claim to protect freedom of speech but ignore their constitutions so blatantly that the words have little meaning.

*The unqualified language “Congress shall make no lawabridging the freedom of speech” is qualified by courts as will be discussed later in this section, although one could argue that this is just the result of a narrower construction of ”freedom of speech” rather than actual restrictions on the freedom of speech. Regardless, as cross-country comparisons will reveal, having an unqualified protection as a baseline still puts us way ahead of almost every other country in the world in terms of protecting freedom of speech.

**For most of the rest of this piece, I will refer to “freedom of speech and the press” as freedom of speech.

Ranking the Bill of Rights
This marks the end of Josh’s protracted ranking of the Bill of Rights. Catch up on the bottom nine, complete with justifications, here.
10 Second Amendment
9 Tenth Amendment
8 Eighth Amendment
7 Seventh Amendment
6 Third Amendment
5 Sixth Amendment
4 Ninth Amendment
3 Fifth Amendment
2 Fourth Amendment

Free speech in the U.S., as interpreted by courts, has its limits. Fighting words (words intended to induce a fight), speech that is likely to induce imminent lawless action* (see Brandenburg v. Ohio, a brief but incredibly important case), certain kinds of obscenity (see the Miller test), speech in furtherance of promotion of a product (i.e. “commercial speech”), and libel/slander are among the types of speech that are limited.

*This replaced the clear and present danger (you can’t yell “Fire!” in a crowded theater) standard of Schenk: so, it’s not clear whether the prototypical “Fire!” example would pass the Brandenburg example. The erroneous view that the clear and present danger standard is still good law is one of the public’s most common misconceptions in constitutional law.

But these limitations tend to be quite narrow. Strict scrutiny is often applied, a test which is embedded with presumptions against the government. Strict scrutiny always applies to political speech. Unlike most other countries, hate speech is constitutional, as is flag burning. Emotional distress may be intentionally inflicted on public figures without fear of punishment. The unqualified wording of the First Amendment provides a strong but not impenetrable baseline for protecting free expression.

Now, uniqueness is not a value in itself, but when it comes to Constitutional amendment rankings, uniqueness is valuable insofar as what is unique is also promoting a positive good. Free speech meets this standard. The uniqueness of the First Amendment helped to make (and continues to make) the U.S. Constitution positively exceptional, at least in one regard. One can’t talk about the benefits of free speech without laying out the arguments of John Stuart Mill in Chapter II (“Of the Liberty of Thought and Discussion”) of On Liberty. There are a few issues (political, legal, culinary, etc.) on which I can remember having my mind immediately changed by a single argument, article, or work. Free speech is one of them. As a senior in high school, I was dumbfounded why one, let alone several of my friends, would possibly defend hate speech: It doesn’t contribute to meaningful discourse, and it emotionally hurts others. But, my views changed upon reading Mill.

Mill’s defense of speech extends from the harm principle, the belief that the government should only regulate activities when they harm* others. Mill’s main arguments justifying absolute free speech are that all speech that may be suppressed may be true (i.e. we can never be certain that a silenced opinion doesn’t at least include an element of truth) and that the mistaken suppression of truthful speech is harmful. Absolute objective truth (a concept which at least one of my co-bloggers admittedly doesn’t believe in) is different than perceived subjective truth. An individual may be personally certain that the world is flat even if that is objectively false. While there may be certain facts or statements (or assumptions upon which speech restrictions are justified) that appear to be true to the vast majority of the population, a minority may be correct in their seemingly false but actually true view. If there is even a negligible probability of this being the case, it makes sense not to ban the speech so truth may eventually be revealed.

*Mill employs a very narrow view of harm generally limited to tangible or physical harm. A destroying B’s garden is harmful, but A making B very sad is not under this formulation.

Two points preempting potential responses to this justification:

First, and Mill makes this distinction, to say that speech should be permitted does not mean that it should be said. Social norms and reputation matter a lot in affecting what people say and don’t say; the government is just one factor that affects speech, but the difference with the government is that its restrictions’ effects are more widespread (not just limited to your community or your audience) and more directly physically coercive,* resulting in fines and/or imprisonment. Thus, when discussing hate speech through a consequentialist lens,** the harms of hate speech should not be weighed against the benefits of hate speech, but rather against the broader benefits of permitting hate speech–one of which is the reduction in the possibly erroneous criminalization of speech based on truthful assumptions. It is not clear what “hate speech” actually is, and surely there will be overlap with some religious and/or political speech leading to the possible “truth” harms that Mill discusses. This isn’t so much a slippery slope argument as much as a vague slope argument: Hate speech is generally defined by its intent (“to express hate”) and determining intent is a difficult venture.

*Community norms surely may be coercive at times too, but I consider physical coercion, particularly confinement, a bit more harmful than other forms of coercion even though the other forms may nonetheless be painful.

**That is, just looking at the consequences of certain speech restrictions (or lack thereof) rather than considering the broader systemic benefits or detriments certain restrictions have regardless of the consequences they produce.

Second, one who doesn’t believe in objective truth should be even more enthusiastic about this argument than objectivists. If speech is limited based on a presumption that something is objectively false and one doesn’t believe in objective truth, he should be very wary of allowing the government to ban that speech. Government limitation on speech is loaded with objectivist presumptions about what is good or beneficial and bad or harmful that should alarm subjectivists.

Other arguments in defense of free speech are, first, that even clearly false speech actually furthers truth because it forces advocates of the “truth” to consider the logical limits of their arguments and ensures that their arguments are completely logical. Second, any restriction on speech is going to overact; that is, unless the restriction is perfectly clear, it is going to have a chilling effect, preventing individuals from saying things that are actually legal out of fear of being prosecuted. Third, and Mill argues this explicitly, individuals with erroneous beliefs are more likely to abandon them if they are engaged in free expression of their ideas. This may be an even stronger reason to permit hate speech since those who hold hateful beliefs will still hold them when hate speech is illegal but others won’t be able to respond to the assumptions underlying such beliefs. Admittedly, psychology has shown us that there are many limitations on rationality and Mill is probably a little too confident in the ability to eliminate erroneous beliefs, but nonetheless reaching the rational conclusion when presented with logical argument is always possible, even if not probable. Fourth, even right/true/good beliefs are prevented from turning into dogma when forced to respond to critics. Even though intelligent design is absurd, responding to intelligent design has likely bettered many individuals’ understanding of evolution.

If you value thought, ideas, and intellectual progress, it’s clear that free speech has many benefits. It’s true that these benefits are generally broad macro-level benefits and hard to measure empirically. What that means is that free speech often comes down to a battle of analytics, and in this analysis, it appears that the benefits that flow from free speech outweigh the admitted harms* (e.g. saddened individuals, the promotion of falsities) that absolute free speech promotes. At that point, it becomes clear that the First Amendment’s uniqueness is beneficial, beneficial enough to propel the First Amendment to the top.

*I will harp on this again because it’s so important: the harms that need to be measured in this analysis are the harms that flow from speech that would occur despite community and other sources of non-governmental censure.

The Other Clauses

The second common misconception about the First Amendment is that it mandates separation of church and state. It does not. Public officials may use purely religious arguments, religious displays on public property are sometimes permitted, and many public schools recite a pledge (a pledge, I should note, that I’m not a fan of) calling the U.S. a nation “under God.”

The Establishment Clause prevents the U.S. government from “respecting an establishment of religion.” This is generally a good thing: It prevents an overt establishment of a state religion, which should please secularists and the religious alike, given that government intermeddling with religion would likely be problematic. The Establishment Clause also has embedded in it the libertarian view that ethics (i.e. individual morality) and politics ought to be separated.* Given the variety of conceptions of what constitutions the good or ethical life and lack of consensus on the issue, there is little doubt that it would be positively deleterious for the state to pick one such conception based on whoever happens to be in power or have influence at the time such a conception is selected.

*Of course, ethics does not have to (and, in my opinion, should not) come from religion, but, for better or worse, religion is a primary source of ethics for many individuals and state endorsement of religion would effectively act as a state endorsement of a particular ethic.

More practically speaking, the Lemon test prevents the government from excessively entangling with religion—not to mention leading to one of my favorite Justice Scalia quotes: “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again…”. The Lemon test often comes up in issues of public displays and funding and whether funding of individuals or organizations involves excessive government entanglement with religion. These cases often attract a lot of public attention (e.g. whether a nativity scene outside a courthouse is constitutional), like all political issues involving religion. Ultimately, given the amount of wasteful spending by the government on deleterious projects, I generally view Establishment Clause jurisprudence to have more symbolic importance than actual importance: public displays or funding tend to be about signaling support of religion, something I’m personally against but something that, nonetheless, doesn’t do much harm. Hence, the general philosophy behind the Establish Clause certainly contributes to its top ranking, but its modern uses, reflected by the Lemon test don’t affect the rank of the First Amendment very much.

The Free Exercise Clause provides that the government shall not prohibit the free exercise of religion. The arguments that Mill made for free speech also tend to apply to the Free Exercise Clause. If there is a chance that religion is promoting truths (it isn’t), then we shouldn’t prohibit the belief in and practice of it. Likewise, if it is false, then we should leave it up to argument so posts like these by John S. and myself may be produced, forcing adherents to critically examine their views. The Free Exercise Clause has been narrowed of late, and neutral laws of general applicability are constitutionally permitted even if offensive to one’s religion. There are trade-offs with this scheme: On the one hand, it’s good because we don’t want individuals getting off from crimes just because they claim to hold certain (and probably false) subjective beliefs, and we want all individuals to be treated equally before the law. On the other hand, religious followers often object to victimless criminalization (e.g. the criminalization of the use of peyote) on religious grounds, and it is desirable to limit such criminalization: others aren’t really harmed and it the state has to expend resources prosecuting and, sometimes, jailing. On the whole, though, this tradeoff seems to be beneficial, since it is desirable for religious individuals to direct their efforts to make secular arguments opposing such laws so they are applied equally to everyone rather than just leading to personal exemptions based on religious beliefs.

The rights of freedom of petition, assembly, and association are also protected by the First Amendment. The right to petition generally has been interpreted as the right to petition the three branches of the federal government. The right to association has been interpreted a bit more broadly as the right to assemble for communication on national issues and for disseminating information. And, freedom of association generally extends protections for other reasons. Essentially, these rights, when considered together, protect speech, particularly political speech, in group form. I’m not the biggest fan of so-called “collective speech”: Intellectual argument is much more appealing than mob protests. But, collective speech is nonetheless important. The power of numbers gives individuals one way of combating the physically coercive power of the state when they need to. For example, the 1836 gag rule that would table anti-slavery protests came to an end largely in the shadow of the fact that such a rule was contrary to the constitutional right to petition the government. Ultimately, these freedoms help to protect the transfer of the intellectual benefits of freedom of speech into actual political change or at least attempts at creating political change and help support the First Amendment’s first place finish.

Conclusion

In sum, the First Amendment is awesome. It is so awesome that it unites people of very different political persuasions: conservatives, libertarians, liberals, even communists. There was never any doubt that it would finish first, although the strongest argument against it (and for the Ninth Amendment) was that it didn’t have enough shock value. But, in the spirit of the First Amendment, whether it’s shocking or not, its justifications merit repetition so they don’t become dogma. Also, in the spirit of the First Amendment, I hope to invite criticism of this ranking or the entire rankings of the Bill of Rights.

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9 responses to this post.

  1. Posted by doc on March 22, 2010 at 8:50 PM

    Now, that Kansas lost, I rank Kentucky first. (Seriously, I have to read the whole ranking of the amendments again, but I am impressed with your thought process).

    Reply

  2. [...] Aught Lang Syne « Ranking the Bill of Rights, Number 1: The First Amendment [...]

    Reply

  3. Posted by Alex Harris on March 23, 2010 at 10:32 AM

    I agree that the Supreme Court has treated the First Amendment as the greatest faunt of substantive rights in the Bill of Rights (but see Smith and the recent Establishment cases, and the Court has never adopted Mill’s arguments and in fact repeatedly indicated that false speech is not protected for its own sake, etc.). But on every other criteria, it loses. Procedural rights? Fifth Amendment. Potential effect (if the Court read it correctly)? Ninth Amendment. Style/clarity (not sure why you give points for this, but I’ll run with it)? Third. (Or maybe 27th/Original 2nd. Or are you not including that in the Bill of Rights for some reason? And for that matter, why only talk about the Bill of Rights proposed by the First Congress? Why not the Fourteenth, which surely beats them all.)

    Reply

  4. [...] that Josh has concluded his eight month-long analysis of the Bill of Rights,* it’s time for we at NPI to finally face facts: The Bill of Rights as a whole is incredibly [...]

    Reply

  5. [...] that considered the consequences of a right to free speech—many of which I provided in my initial post—which led to its adoption (and persistence, since it hasn’t been amended away) in the first [...]

    Reply

  6. [...] In my post ranking the First Amendment at the top of the Bill of Rights, I anticipated this response and specifically indicated that I wanted to preempt it. Let me repeat what I argued since it directly responds to (or preempts) John’s presumption: [...]

    Reply

  7. [...] not really accurate. What the Founders were doing, after all, was establishing a country. So while Josh may be thrilled that the Founders decided to prohibit government regulation of speech, I’m more impressed by whomever stood up and said, “It would probably be really helpful if we [...]

    Reply

  8. [...] to the Food Network, from the 1999 NLCS to apologism to David Foster Wallace. We’ve ranked the Bill of Rights, the work of Bob Dylan, and everything in history. Oh, and we had some French guy discussing sports [...]

    Reply

  9. [...] is wrong for the same reason all censorship is wrong—it inhibits the free flow of ideas. And subjects that tend to offend people are exactly those [...]

    Reply

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