Now 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 overrated. The Ninth and Tenth Amendments are glorified addenda, the Seventh is, as Josh said, dull, the Third has been pretty useless, and the Second is essentially gibberish. The entire document is in desperate need of a proofreader (seriously, the grammar in that thing is offensively ambiguous).
*And in depressingly anticlimactic fashion, I might add: Oh, the First Amendment is first and the Second is last? How original! Is he also going to write something about how rainbows are pretty and chocolate tastes good?
And yet the Bill of Rights remains incredibly popular. Demagogic political figures appeal to it for justification of any principle they want to espouse; citizens regard it with a scriptural sanctity even though polls show that most of them don’t know what it says. In other words, the Bill of Rights is basically the secular version of the Bible. And not much of that has to do with its proscription on troop-quartering.
You don’t have to be a constitutional scholar to know that the Bill of Rights’ reputation with the public is largely the result of the First Amendment, specifically the freedoms of speech and the press. And yet it is this part of the Bill of Rights that is the most overrated.
Let me be clear from the outset: I am not anti-free speech. In fact, I would venture to say that I’m just as big of a fan of John Stuart Mill’s defense of liberty as Josh is. It’s not liberty I object toit’s the conception of “freedom of speech” that the First Amendment endorses and propagates. The most troublesome aspect of the First Amendment, and indeed about the Bill of Rights as a whole, is its establishment of free speech as a “right.”
The Bill of Rights is so popular because of its creation (or protection, depending on who you ask) of certain “rights”—it’s right there in the name. Free speech and free exercise from the First Amendment are two of the most popular rights, but what does it mean to list these things as “rights”? The concept of a right is an outdated modality, a remnant from a time in which political philosophy was hardly different from religious philosophy. As it famously says in the Declaration of Independence, one of the “self-evident” truths is the existence of “certain unalienable rights” that were “endowed by [the] Creator.” All this “rights come from God” shit is a very popular trope even today. Recall President Bush’s statement that “the liberty we prize is not America’s gift to the world; it is God’s gift to humanity.”
This kind of language is very disturbing, and not just because God isn’t real. The problem with this kind of argument is that you can just say it without any justification. All you have to do is assert that God is in favor of some right, and you’ve won the argument. You don’t even need to provide evidence that God is in favor of free speech, free religion, trial by jury, or against troop quartering.*
*And, actually, there’s probably more evidence that he is AGAINST these things. Why on Earth would God want there to be free exercise of religion? And free speech? Didn’t he DROWN THE WHOLE WORLD because some people said some blasphemous things? I hate to break it to you, but God is not a classical liberal.
Even if you don’t subscribe to the belief that rights come from God—and I know Josh doesn’t, because he’s not irrational—the concept of a “right” is still an autocratic fiat. To claim something as a right, you need to appeal to some authority—either the Founding Fathers, or a political philosopher, or something else–because the concept of a right is absolute. It is not based on consequences or arguments; it is merely an entitlement to a certain protection, regardless of the outcome.
In the overall scheme of governance, however, this is decidedly unhelpful. Law and policy are largely about consequences and results: What is going to promote the general welfare of the society in question? That is, after all, the aim of political philosophy. There is a school of a thought—of which Mill is a part—that believes that certain freedoms will promote the general welfare more than anything else. That may or may not be true, but construing these things as “rights”—protections to which you are entitled no matter what the consequences are—is tremendously unhelpful. After all, what happens when the rights of two people conflict? Or when, for example, someone construes something as a free exercise of his religion, which others construe as an establishment of that religion?
This introduces the second major flaw in the conception of “rights”: Rights are worthless without a clear, indisputable definition. Granted, for some rights protected within the Bill of Rights, this is not a serious issue. There aren’t many debates, for example, about what constitutes troop-quartering. But for most amendments, questions of definition and elaboration abound, most notably in the First Amendment. What, for example, constitutes “speech”? Is it an act of speech to burn your draft card? To burn a flag? To carry a sign that says “Lynch Obama”? What about “press”? Or, for that matter, “religion”? What do these words mean in the context of the Bill of Rights?
Of course, there is a long tradition of legal scholarship about just these types of definitions; I do not intend to rehash or dismiss them. The problem with these discussions, though, is that they merely generate debate over what conforms to some standard: Is this what the Founding Fathers meant by “speech” (or some other variable)? And this standard is, ultimately, pretty arbitrary. What is more interesting, and more important from the standpoint of a government, is what promotes the general interests and values that our society wants to uphold.
As Josh summarized, Mill provides a brilliant and eloquent explanation for why free speech—or, as Mill called it, the liberty of thought and discussion—is just one of these values: Allowing ideas and opinions to flow freely allows good ones to defeat bad ones, forces people to justify the beliefs they express, promotes democratic discourse, and helps to prevent all opinions, whether good or bad, from becoming dogma. These are all good things, but the First Amendment itself doesn’t really deal with any of them. The First Amendment does contribute to these values, but since it frames free speech as a right, and not as something to promote such values, it exists by fiat and not real justification. In other words, if the First Amendment ever stopped leading to good outcomes, then, well, too bad.
Former Justice Oliver Wendell Holmes formulated this view in his dissent in Gitlow v. New York: “If in the long run the beliefs expressed in…dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”
This is known as free speech absolutism. Often attributed to Justice Hugo Black, free speech absolutism basically means that any and all speech is protected by the First Amendment, no matter how harmful or odious it may be. It is not the job of lawmakers to determine whether certain speech is beneficial or harmful; if something is speech, then it is permissible. With respect to free speech absolutism, tests like the Brandenburg test, or guidelines for obscenity, are technically unconstitutional.
Now, even though tests like Brandenburg exist, it seems pretty obvious to me that free speech absolutism is the correct interpretation of the actual text of the Constitution. Is there something vague about “Congress shall make no law” that I am missing? I don’t really know how you get clearer than that. Maybe the Founders should have added a footnote that just said, “Seriously guys, NO law.”
In some sense, the absolutist aspect of the First Amendment is in the spirit of Mill’s arguments: Only in the complete absence of constraints is the free exchange of ideas actually possible. Once the government starts inspecting speech for potentially negative consequences, then it has already imposed certain standards and values on the marketplace of ideas.
The problem with this line of thinking, though, is that government entities are not the only institutions that can impose constraints on speech, yet they are the only ones the First Amendment applies to. It should not be forgotten that Mill’s arguments were not merely directed at governments but indeed at society at large and even “mankind” in general. And yet non-governmental entities silence, restrict, limit, modify, or otherwise interfere with speech all the time.
Take, for example, the recent case decided by the Supreme Court, Citizens United v. the Federal Elections Committee. In this case, decided just two months ago, the Court overturned a law that prohibited corporations and unions from spending money to support or defeat candidates for elected office. That law constituted a prohibition on speech and was, thus, unconstitutional. Now, there is a lot of debate about the decision of the court—President Obama even criticized it in the State of the Union—but most of it centers on whether or not financial contributions to political candidates constitute speech. Once again, we have gotten bogged down in a debate over the technical meaning of the word “speech,” as opposed to the actual values that free speech promotes.
The problem, of course, is that striking down the law is just as much of an interference with the free exchange of ideas as upholding it. The law in question is not concerned with the kind of opinion elimination that Mill is opposed to, but with the question of acess. Since the law in question deals with campaign spending, then certain groups—namely, corporations and unions with access to large amounts of money—have certain privileged access to the “speech” in question. In this instance, then, the First Amendment has not leveled the playing field for the different viewpoints expressed, but merely restored different inequities that have nothing to do with the quality or degree of truth in the speech.
This is why the absolutist or unqualified nature of the First Amendment does not really cohere with the general principles that underlie actual liberty of thought and discussion. Mill’s arguments, for example, repeatedly refer back to the hypothetical “silencing” of opinions: “All silencing of discussion is an assumption of infallibility.” This suppression of opinion, whether it be by government or any entity, is what freedom of speech is really opposed to.
In the context of the First Amendment, though, freedom of speech is not about the prevention of silencing or suppressing viewpoints, but merely about complete government neutrality on speech. In modern life, speech is limited by other factors far more often than it is threatened by government restrictions. These other factors can range from relatively harmless social norms to corporate censorship to monopolization of access to certain outlets. Some of these are understandable and/or hard to avoid, but some are pretty significant infringements on the exchange of ideas. In the Citizens United case, for example, an argument can be made (and was, by Justice Stevens in the dissenting opinion) that allowing corporate and union spending will actually end up silencing or suppressing other views.
Now, whether or not this argument is persuasive, or whether such a worry merits government intervention, or whether the worry outweighs a desire to keep the government from prohibiting campaign spending—these are all separate and debatable questions. But the mere fact that something is speech ought not make it sacred.
Indeed, the problem with the First Amendment is that it values the mere existence of speech over the productive discourse that speech is supposed to foster. If a certain viewpoint has more privileged access or dominance due to things besides its persuasiveness or degree of truth, then certain regulations, or “abridgements” of that view, may actually breed dissent and be more in line with the spirit of free speech. In other words, if a corporation can afford to spend more money on political ads to promote candidates whose policies it prefers, then a law prohibiting such spending would promote fairer discourse–whether or not it is an “abridgement” on speech.
Many modern issues of free speech come down to more nuanced questions of access, which cannot really be dealt with in the simple “if it’s speech, protect it” manner of free speech absolutism. Questions like who is allowed to run political ads and when and on what channel, which media will be able to host which content, equal-time rules and Fairness Doctrine issues, how limited resources of expression are distributed to different viewpoints, etc. are all more complicated than mere prohibitions on a type of speech, so government neutrality on the question of speech is insufficient to deal with them.
It’s not that I’m in favor of government censorship or regulation of speech. It’s actually quite the opposite: As a matter of policy, I would do away with pretty much all regulations of speech, including obscenity laws. But I don’t think that makes free speech a “right” or entitlement; it’s merely a value government should respect.
The business of government is primarily about compromise and management, about figuring out how best to settle opposing sides. But the concept of a “right”—whether it be free speech, free exercise of religion, trial by jury, etc.—is absolute. That’s why even when the principle promoted by the right is noble—as it certainly is in the case of the First Amendment—the right itself is only a hindrance on actual political and philosophical debate. By its very nature, then, the Bill of Rights is not a constructive addition to the Constitution. It may be historically and legally important, and worth ranking, but that doesn’t make it good for society. And even if you disagree with what I say, you better defend to your death my right to say it.