Posts Tagged ‘Brandenburg’

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. Continue reading

First Amendment Symposium, Part III: Why Rights Still Don’t Matter

So, Josh exercised his right to free speech by responding to my critique of rights with his own defense of rights. His defense was valiant, yes, but doomed.

Let’s start right at the beginning, with Josh’s attempt to define the ineffable concept of a “right”: “If X has a right to do something, he is legally protected from interference by Y. In other words Y has a correlative duty not to interfere with X’s right. So, if X has a right to speak freely, then Y has a correlative duty not to interfere with X’s speaking freely.” This doesn’t really help us much, does it? A right means that Y—Y, as defined by Josh himself, “being any other individual or the government”—has a duty not to interfere with that entitlement. So, technically, every single time you interrupt someone you have violated someone’s right to free speech, since you’ve interfered with that person’s speaking freely. Apparently, that person now has legal recourse against you. By this standard, public school teachers who force students to raise their hand before speaking have collectively committed the gravest assault on our free speech rights that the U.S. has ever known.

Of course, this is ridiculous because Josh’s standard is ridiculous. A right protects you from any interference? That’s simply not true empirically. Continue reading

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. Continue reading

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.

Continue reading