First Amendment Symposium, Part V: Why The First Amendment is STILL Overrated

Exhibit A for why there should be abridgements on some speech: To prevent people like Josh from quoting himself in his own epigraph.

As for the substance of Josh’s arguments, there seem to be three core premises that form the basis of his attack: 1) Government suppression of speech is uniquely coercive and widespread; 2) as a result of its unique ability to coerce, government suppression of speech is categorically bad; 3) certain words in the text of the First Amendment, like “speech” and “abridging,” have no consensus definition, granting certain leeway when it comes to dealing with many issues surrounding the First Amendment.

Let’s start with #1: The effects of government suppression of speech are uniquely coercive and widespread. Josh defends this premise by contrasting government suppression with much more benign forms of “suppression”: “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.” The other factors that Josh names—social norms and reputations—are hardly elements of “suppression” at all; they basically amount to peer pressure. Of course government regulation is going to appear more coercive and significant than these opponents—it usually is more coercive and significant.

The problem is that Josh jumps from that to a ridiculously broad and erroneous assertion: “If you look at almost every significant suppression of a category/type of speech across different countries, the suppression has almost always been put into force by a government.” Excuse my language, but what the fuck? Really? Josh should try telling that to Trey Parker and Matt Stone (it’s too late to tell that to Theo Van Gogh).  I guess Josh doesn’t consider a publicly issued fatwa ordering the murder of a blasphemous writer, or the almost total suppression of the Danish Mohammed cartoons in the American media, “significant” or coercive. These must be the minor exceptions that Josh allows.

First Amendment Symposium: Review all the posts in John S and Josh’s discussion of rights and the First Amendment:
Part I: Why the First Amendment is Drastically Overrated
Part II: In Defense of Rights
Part III: Why Rights Still Don’t Matter
Part IV: The First Amendment is Properly Rated

Josh’s claim that only the government can be physically coercive or have widespread effects is simply misguided. Any large institution can be coercive, as illustrated by the fact that the Ayatollah’s fatwa against Salman Rushdie inspired at least one attempt on the writer’s life. So the idea that a government ban on religiously ordered executions, which the First Amendment wouldn’t allow, is somehow worse than the actual execution order itself, which the First Amendment would (this, admittedly, ignores the Brandenburg test, but I’ll come back to that later), is ridiculous. Not only would a ban on this type of coercive speech be morally better, but it would actually be more aligned with Mill’s defense of free speech, since it creates a setting that fosters religious dissent and debate.

This, of course, bleeds into Josh’s second central premise, that government regulation of speech is categorically bad because of this power to coerce. As Josh says, “in some settings, suppression is actually good. What’s really categorically bad is governmental suppression, because of the reasons of scope and physical coercion.” As we have seen, though, the scope and physical coercion that the government is capable of is not unique to the government, and so it should not be only government suppression* that is “categorically bad.”

*The logical inconsistency of Josh’s position is clear in his explanation of the Fairness Doctrine. As Josh says, the Fairness Doctrine forces radio and television networks to “balance” their coverage of sensitive issues, forcing them to cut other programming. Josh is right to say that this is a senseless and stupid rule, since “sensitive issues” ought to be addressed with honesty and thoroughness, and not out of some obligation to hear every side, no matter how outlandish it is. But it would not be less restrictive of speech if it were an internal policy of the major networks, as opposed to a corporate imposition. According to Josh’s stated philosophy, though, that fundamentally changes how the speech is viewed.

What is “categorically bad” in terms of free speech are regulations that amount to actual “suppression.” In other words, if the law or regulation or religious command or corporate policy, etc. actually extirpates a viewpoint and prevents it from coming to the public’s attention, then it is an actual interference with free speech. This is in contrast to laws that limit the ability of Josh’s hypothetical racist who yells epithets in the street (and, despite what Josh implied, it’s not just social norms that prevent this—there are laws against harassment and disorderly conduct that this would presumably violate); these restrictions only change the manner in which these views come to the public’s attention, hopefully resulting in a more productive discourse. They don’t actually eliminate racist speech or thought.

If we are to subscribe to Mill’s view of free speech, then we don’t want to eliminate viewpoints through any means besides reasonable refutation. But it’s not just the government that seeks to do so, and so sometimes the government has an actual interest in regulating the excessive speech restrictions that are imposed by other entities. If, for example, the government wanted to prevent religious leaders from issuing death orders to dissidents or, in a more reasonable example, if they wanted to prevent companies that provide Internet access—many of whom have de facto monopolies in certain regions— from blocking certain content from its users, then those restrictions will actually promote the free speech that Josh supposedly endorses. It’s not the mere question of whether the restrictions come from government or not that determines whether a regulation promotes or interferes with free speech.

As we saw with our discussion of rights in general, though, framing the First Amendment as an absolute prohibition prevents these distinctions from being made. According to the text of the First Amendment, if something constitutes a government abridgement of speech, then it is a violation of rights, regardless of its overall effects on the exchange of ideas. This brings us to the Josh’s third central premise, his denial that the First Amendment must be read as an absolute. His denial, though, is built on the ambiguities of language in the First Amendment. “Abridgement of speech” is a vague phrase and, as Josh says, “it’s not entirely clear what freedom of speech includes.”

Josh is right that the First Amendment is not always interpreted as an absolute. Tests like the Brandenburg test, which would allow prohibitions of religiously ordered executions (since that would presumably be likely to produce “imminent lawless action”), prove that. But what the Brandenburg test really represents is an instance in which the Supreme Court and the government at large deemed it permissible to violate the First Amendment. In other words, nobody really denies that laws against fatwas would be against the First Amendment; we just think it’s okay in these instances to violate the First Amendment. But we haven’t really denied the absolute nature of the First Amendment in this case; we’ve chosen to ignore it. This is an example in which society has actually had to weigh the positives and negatives that come with a government regulation of speech, in spite of the First Amendment’s absolute prohibition.

In general, though, the First Amendment doesn’t facilitate these discussions. Take Josh’s example about whether political donations count as speech. The substantial legal disagreement about this issue centers on precisely that question: Is making a donation to a political cause or candidate equivalent to making a statement in support of that candidate? If you believe the answer is “yes,” then the government cannot regulate donations, but if you believe the answer is “no,” then the First Amendment doesn’t rule out regulation.

This question, though, is not really concerned with whether such regulations actually suppress or silence a given viewpoint. In other words, it doesn’t actually concern the values of free speech, but rather a technical question about the text of the First Amendment. This is what I meant when I said that the values of free speech are not inherent in the First Amendment: A persuasive argument can be made that political donations are speech and that they should still be regulated in the name of free speech, since they allow wealthier voices to crowd out the less affluent. The First Amendment, however, does not permit such an argument.

Finally, this brings up the Citizens United case. Josh points to Justice Stevens’ dissent in that case, in which he calls corporations “artificial beings” and thus concludes that the First Amendment does not apply to them. This is another instance, Josh says, of the First Amendment granting more nuance to a particular case. It should be pointed out, though, that Stevens’ position hasn’t been one that the Supreme Court has generally recognized: The Court has granted constitutional rights to corporations for over a century. Even if we accept Stevens’ argument, though, the question has once again been driven away from the topic of the values free speech: We are now discussing whether rights apply to corporations. If you believe that they do, then, according to the First Amendment, the Citizens United case ought to be upheld, regardless of its negative effects on free speech.

The First Amendment does this time and again: It treats government interference with free speech as qualitatively different from other interferences with speech. This isn’t always a bad thing—most of the time, government regulation of speech is a bad idea—but it’s not always a good thing. The public sanctity of the First Amendment, though, is beyond question, even when it actively interferes with the free exchange of thoughts and ideas. It follows, then, that, no matter what Josh says about the First Amendment and how many lists rank it first, the First Amendment is still highly overrated.

2 responses to this post.

  1. Posted by Dan on April 24, 2010 at 9:15 AM

    W/r/t your point of the networks that self regulate or self censor, Josh clearly isn’t saying that this is morally good. Rather, it is an entirely separate issue from the one settled by the first amendment.


    • Posted by John S on April 24, 2010 at 1:03 PM

      Yeah, I agree. It’s an entirely separate issue from the one settled by the first amendment, but my point is that it’s NOT an entirely separate issue from the freedom of speech–in fact, I think it’s pretty integral to free speech. So this is just one instance in which the First Amendment isn’t really helpful or useful w/r/t free speech.


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