First Amendment Symposium Part I: Why The First Amendment Is Drastically Overrated

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 to; it’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 The concept of a right is an outdated modality, a remnant from a time in which political philosophy was hardly different from religious philosophy.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 access. 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.

12 responses to this post.

  1. Posted by Dan on April 20, 2010 at 7:37 PM

    “To claim something as a right, you need to appeal to some authority”

    This sounds dangerously close to saying you need some authority (“Founding Fathers, or a political philosopher, or something else [i.e. God]”) to establish morality. This is a rather dangerous thing for an atheist to say. We both know morality can be rationally derived from other places. So what is so bad about not-god-given rights?


  2. Posted by Dan on April 20, 2010 at 7:53 PM

    Also, is this an elaborate ploy to get in posts on the subject while Josh is hoosegowed?


  3. Posted by John S on April 20, 2010 at 10:56 PM

    First of all, fret not! Josh will come valiantly (if futilely) to the First Amendment’s defense tomorrow.

    As for your point being able to rationally deduce rights, I just don’t agree. You’re right that you can make rational claims about morality, but I don’t think those claims can be reduced to absolute fiats. It seems to me like rights function more like axioms than rational conclusions, providing arguments for or against policies based on inherited dogma. They function, in other words, like scripture.


  4. Posted by Dan on April 21, 2010 at 6:49 AM

    So you hold statements about rights to a higher standard of absoluteness than morals?


  5. Posted by janechong on April 21, 2010 at 6:53 AM

    “It’s not liberty I object to; it’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.'”

    Interesting. If this is what your criticism of the First Amendment boils down to, I’d argue it’s easy enough to shut down, with the simple assertion that the Bill of Rights is fundamentally a practical document, with moral flourishes that are best understood as a methodology. The flourishes are less reproachable than you suggest when we recognize their value as conceptual shortcuts –e.g., compelling people to buy into certain vehicles of social organization, like the idea that more liberty is better than less, in the space of a page.

    Basically, I’m inclined to agree with Dan, and to push his point further. I think of rights language not as necessarily derived from a sincere belief in the inalienability of this or that as determined by some absolute authority –I think of it as shortcut language. We need not put faith in God or even espouse the vaguest of moral doctrines to see the value in framing law in terms of rights discourse. We could base our rationale on a proposed set of human preferences and the mechanisms through which we are best able to uphold those preferences. It’s still the Leviathan, minus the natural rights stuff, in favor of modern notions of what maximizes everyday human happiness. The real social contract is less about mutually surrendering certain rights with which we are mysteriously endowed, and more about common-sensically protecting our ability to do stuff by letting other people do it, too. Given the conventional assumption that more choices = more happiness, the first amendment is a wonderfully pithy way of keeping people happy by making them upset at the prospect of being less happy. (ok so behavioral economics is now pretty definitively shutting down the cherished choices = happiness idea, which opens up rights discourse to some interesting surgical adjustments, but such findings have yet to find stalwarts in the political realm).

    But then, why not just do away with the rights angle, you say? Well. Consider. Sammy the Sailor is happiest when he is allowed to say whatever comes to his head. If the only way to preserve his ability to cuss out disagreeable weather patterns is to generally extend that same courtesy to everyone under law, Sammy the Sailor is on the whole okay with that. Now couch natural preferences such as this in rights language and voila! The direct appeal to his self-centered (i.e., centered-on-self) instincts for preference-preservation helps secure Sammy’s full fidelity to rights as a general construct. Nothing gets people madder than a perceived threat to their so-called rights. Ant that’s the point of the language. Those behaviors we understand as “rights” are most effectively protected for others when seen as an extension of our very being.

    One might argue our little American shortcut for upholding preference sets to the best of our ability runs into problems when the rights analogy gets taken too far and and produces ugly little subjective paradoxes like what right does X have to infringe on Y’s right to speech/ is not the act of infringing on someone’s speech a speech act in and of itself/etc. As you suggest, all of this gets silly fast because we look to Rorschach tests, like readings of the framers’ intentions, for answers. This just suggests to me rights discourse may need a picky face-lift.

    “most of [the law overturned in Citizens United vs. FEC] 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.”

    Perhaps the problem is NOT that we’ve lost sight of the spirit of free speech in favor of the letter, but that we really screwed up by perpetuating this manic charade that equates corporations with persons. I agree with you/ Justice Stevens on the scary big picture implications for free speech handed down with the decision –but chiefly because, as many have noted, the problem with taking the concept of corporate personhood so far as to afford corporations the same rights afforded individual citizens (in the broad, not just commercial sense) is that unlike regular people, corporations are incentivized and legally obliged to do everything in their power to maximize shareholder profits. I’m no expert on the subject, but it seems feasible that a corporation could use its godzilla resources to bring about political realities completely at odds with the private wishes of all the flesh-and-blood people who actually make up the corporation. Which is, again, pretty absurd.

    All in all, fun post! K back to work. Procrastination/.


  6. […] is the first part of a two-part reply to John’s critique of the First Amendment. The second part will run […]


  7. […] response will proceed in three steps. First, I will respond to misguided presumptions that underlie John’s critique of the First Amendment: 1) that the goal of the First Amendment is not to suppress […]


  8. […] Part I: Why the First Amendment is Drastically Overrated […]


  9. Posted by Tim on April 25, 2010 at 11:43 PM

    I don’t want to chime in on this matter myself, and I don’t really know which of these posts to comment on, but I will pass along the wisdom of Serenus Zeitblom from Thomas Mann’s “Doctor Faustus”:

    “[School’s] interests form the horizon that every life needs in order to develop values, however relative those may be, by which character and abilities prove themselves. But they can serve that humane purpose only if their relativity remains unrecognized. A belief in absolute values, however illusionary, remains for me a prerequisite of life.”


  10. […] As a general rule, the Founding Fathers get way too much credit. The Declaration of Independence was basically plagiarized from John Locke; a lot of the Constitution is downright awful, either from a moral standpoint or a procedural one. Let’s not even get started on the Bill of Rights… […]


  11. […] jokes, or reviews of commercials! Somewhere in there we actually had substantive arguments about political and legal theory, the value of film criticism, and candy. We’ve chatted about college basketball, the World […]


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