Dispatches from the Creation Wars

Why the First Amendment is Uniquely Important

Posted by Ed Brayton on May 28, 2005
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The US is hardly the only democracy in the world that seeks to limit the power of government, but we do have one thing that many of our fellow western democracies do not have – the first amendment. To the American mind, it’s bracing to read about the existence of “human rights commissions” in nations like Canada. The laws which establish such commissions generally establish protected groups that may not be insulted in any way, and the list of protected groups is rather broad. The Alberta Human Rights, Citizenship and Multiculturalism Act, for instance, says that:

no person shall publish . . . any statement that . . . is likely to expose a person or a class of persons to . . . contempt because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or class of persons.

In Canada, the Supreme Court has even ruled that, unlike in a libel or slander case, the truth is no defense. Even true statements that the court deems likely to cause some injury to a protected group may be punished. And it even reaches into private communications, as the case of John Ross Taylor shows. Taylor was conviced of anti-semitism (and he genuinely was an anti-semite) and ordered to stop recording his opinions or even communicating them by telephone. He refused to abide by that order and was sentenced to a year in jail for contempt of court. In my book, that makes Taylor, no matter how much I might despise his opinions, a political prisoner.

Canada is not alone. In Italy, a journalist named Oriana Fallaci is about to stand trial. Her crime? Insulting Islam. Her book, The Force of Reason, argues that the Muslims are taking over Europe and must be stopped. It’s not a thesis I’m likely to agree with. But it’s entirely within her rights to make the argument, and if you think she’s wrong, you use your own free speech to counter her views. But not in Italy, apparently. A judge has ordered prosecutors to charge her for making statements “unequivocally offensive to Islam”. In France, a trial was held to determine whether to ban her book from being sold there; the court thankfully ruled that it could not be banned. But trials such as these are unheard of in the US, where even classified documents can be published in the newspapers under the Pentagon Papers case.

The double edged sword of allowing the government the power to punish ideas deemed to be insulting to a group is demonstrated perfectly in this case. The head of the Muslim Union of Italy, Adel Smith, who filed the suit to punish Fallaci for insulting Islam was himself sued under the same statute for “offending the Catholic religion, through the use of scorn.” Such perfect irony. Give to government the authority to punish the views of those you oppose and you will soon find that power turned on your views as well.

Hat tip to Bartholemew.

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Comments

  1. #1 Kevin
    May 29, 2005

    As a canadian, I do admire the first amendment. At the same time, there are kinds of speech that are regulated universally- mentioning to a group of avid followers that you’d like to see a rival dead, yelling fire in a crowded theatre, talking about a fictional bomb in the security line at the airport- so ‘free speech’ as defined in the US is just another point on a spectrum of possible degrees of freedom. Hate speech is a thing that can fall on different sides of that line even when it is drawn by reasonable, well meaning people. Would I agree that what a person says, short of actively plotting violent crimes, in a private telephone conversation should be regulated? No. I don’t like racist jokes, but I don’t think the people telling them should be put in jail. But when it reaches a point of real virulence, I do think so intervention by the powers that be can be justified, on the grounds that bigotry very often leads to violent action.

    You can say the canadian system and the italian system are playing with fire, that we’re in danger of a ‘slippery slope’, but those things are present in any legal system, there are always dangers of abuse by the powers that be. I am a fairly left wing person in a province that is (by canadian standards) very right wing, and I don’t feel there is any danger of my being censored. Of course I need to be vigalent against creeping censorship, and I am. But absent the carefully scripted infotainment from a few large media companies, how much free speech does the average american hear?

  2. #2 raj
    May 29, 2005

    I suppose that the 1st amendment is nice. It would be nice if it were observed. It hasn’t been.

    A few examples. The Alien and Sedition act of 1798, which was passed shortly after the ratification of the 1st amendment was an obvious infringement.

    Regarding the “establishment of religion” portion of the amendment, obviously the courts determine what is an “establishment of religion” for a number of purposes.

    The most egregious issues in recent times were the US vs. Schenck and US v. Frohwerk cases, stemming from WWI (yes, WWI) The US vs. Schenck opinion was the source of the “crying fire in a crowded theater” metaphor. The case had nothing to do with crying fire in a crowded theater. The case involved German-Americans who were trying to discourage other German-Americans of getting involved with the draft for WWI. The speech that they were using to do that was made a crime during WWI. The same with the press, which was the issue in the Frohwerk case.

  3. #3 Ed Brayton
    May 29, 2005

    Kevin wrote:

    As a canadian, I do admire the first amendment. At the same time, there are kinds of speech that are regulated universally- mentioning to a group of avid followers that you’d like to see a rival dead, yelling fire in a crowded theatre, talking about a fictional bomb in the security line at the airport- so ‘free speech’ as defined in the US is just another point on a spectrum of possible degrees of freedom. Hate speech is a thing that can fall on different sides of that line even when it is drawn by reasonable, well meaning people.

    I agree that those who want to criminalize “hate speech” are well meaning, but that has little to do with whether such laws are justified. And yes, no one thinks that speech should be entirely free under all circumstances, we all make exceptions for libel and slander, for fraud, for perjury, and so forth. But those are all things that cause direct harm to another person and deprive them of their rights. Once we grant to government the authority to police speech solely because someone finds it offensive, we don’t even need to make a slippery slope argument – we’re already at the bottom of the slope. The only thing left to decide is what particular types of offense are going to be criminalized, and that may shift around as the politicians in charge shift around because once that authority is granted to government, there is no longer any principled distinction between types of offense. How does one distinguish between merely racist jokes and “real virulence”?

    Under American law, the exceptions are drawn very narrowly and that is quite intentional. The “fighting words” doctrine is notoriously difficult to establish precisely so that the exception does not expand into a situation where the government must decide what is and is not offensive enough. The main problem I have with the notion that “civil rights” trumps freedom of speech is that there is no right not to be offended by the views of someone else. The remedy for such offense is the exercise of one’s own freedom of speech to condemn the speaker who is offending you.

  4. #4 Ed Brayton
    May 29, 2005

    raj wrote:

    I suppose that the 1st amendment is nice. It would be nice if it were observed. It hasn’t been.

    The fact that your examples go back to WW1 and before speak to the importance the courts have placed on the right to free speech. Even conservative judges like Scalia, who takes a typically pinched view of the reach of such rights, believes that it includes even something as offensive to most people as burning the flag. The fact that we haven’t been perfect in our history in observing it only shows why the amendment is so important. And the fact still remains that our constitution is far more protective of free speech than most of other Western democracies. I think that’s a very, very good thing.

  5. #5 skippystalin
    May 29, 2005

    If you think the provincial laws are interesting, you should see the federal law governing “hate speech.” Those can be found here
    http://laws.justice.gc.ca/en/c-46/41491.html

    Sorry for the use of the name, but I’m linking this to my blog and would rather my readers not know who I am. They can be annoying sometimes.

  6. #6 spyder
    May 29, 2005

    At the core of this issue is a failure of our public education. By this i mean that in order to have a true and unfettered freedom of speech, the society must be populated with an enlightened citizenry who understands the significant importance of responsibility for the liberties of others and to not infringe upon that through irresponsible speech. The public education system in the US(i don’t know Canada’s)is predicated on all manner and sanction of speech at every moment. Teachers impose silence through coercive and, in some rarer cases, corporal punishment. Teachers and Adminstrators restrict and control nearly every on campus utterance. Many would feel that these sorts of regulations, laws, codes, curricula, and so forth, have been necessary to maintain conformity, order, discipline and other social benefits. But as the “groucho-bush” case shows, one single complainant can control the freedom of speech of the many.

    I liken it to the removal of human interactive responsibility by traffic signals as first proposed by Ortega y Gasset. When we first learned to pass through intersections without any symbolic controls we exercised civil and personal responsibility paying attention to, and communicating with others at the intersection. When stop signs were put up, we stopped and then moved forward again exercising responsibility toward our fellow citizens(and even non human lifeforms). When traffic signals were put in, our sole responsibility was to the lights, going when it was green, stopping when it was red, and going faster when it was yellow. No longer were we engaged in the responsible social interaction with others, except through obeying codes and laws enforced, not by circumstances, but by coercive hierarchical systems similar to schools(interesting that Canada is now experimenting with removing traffic signals to increase the interhuman communication and responsibilitiy).

    Teaching children that words in and of themselves do not have power, that the power we experience from using them or from hearing/reading them, comes from within us and are part of the choices we make, would move a long way to reintroducing responsible freedoms of speech.

  7. #7 skippystalin
    May 29, 2005

    Spyder,

    That would be frieghtening if I had any idea what you just said. You seem to be proposing the tyranny of the nonsensical.

    Or maybe its just me.

  8. #8 raj
    May 29, 2005

    Ed, your point might be of interest if the opinions had been overruled. They haven’t been. Accordingly, as far as anyone can tell, the decisions are still law in the US.

    I know that you have said that you aren’t a lawyer, so I’ll cut you some slack. You’re an intelligent guy. Are you going to suggest that the result in Marbury vs. Madison is in doubt merely because it was decided in–when was it 1803?

  9. #9 Dave S.
    May 30, 2005

    And it even reaches into private communications, as the case of John Ross Taylor shows. Taylor was conviced of anti-semitism (and he genuinely was an anti-semite) and ordered to stop recording his opinions or even communicating them by telephone.

    For more detail on the Taylor case, check out –

    http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=1&lg=_e&isruling=0

    Personally, I’m not at all happy with such laws; these idiots need to be challenged with sound logic and facts, not the club of the state. However I do understand the legislative intent behind them.

  10. #10 Ed Brayton
    May 30, 2005

    raj wrote:

    Ed, your point might be of interest if the opinions had been overruled. They haven’t been. Accordingly, as far as anyone can tell, the decisions are still law in the US.

    There was no court ruling upholding the Alien and Sedition Acts. They were overturned when Jefferson took office. As far as the wartime cases, you’re certainly right that they were bad decisions. But they were now 90 years ago, and much has changed since then for the better. They haven’t been overturned primarily because there have been no new cases to challenge them because they are no longer enforced. American society, led largely by the courts, has far more respect for free speech today, even in times of war, than it did a century ago. We still need to be vigilant to insure that it remains that way, of course, but the point of my post remains true, that freedom of speech is generally considered far more broad in the US than in most other western nations. That doesn’t mean we’re perfect. But I think it’s a lot better than throwing people in jail for thought crimes.

  11. #11 Naked Ape
    May 30, 2005

    Hey Ed, (or anyone who knows)

    are the “designated free speech zones” that I saw in the leadup to your elections the only places where an american can exercise this constitutional right, or are you actually allowed to excercise this right anywhere in the states?

  12. #12 Ed Brayton
    May 30, 2005

    Naked Ape wrote:

    are the “designated free speech zones” that I saw in the leadup to your elections the only places where an american can exercise this constitutional right, or are you actually allowed to excercise this right anywhere in the states?

    No, the “free speech zones” are not the only place we can exercise our rights. That Orwellian concept had to do with how close protestors could get to our current President. A very bad idea, though obviously there has to be a limt placed somewhere.

  13. #13 raj
    May 31, 2005

    Ed Brayton at May 30, 2005 11:48 AM

    There was no court ruling upholding the Alien and Sedition Acts. They were overturned when Jefferson took office.

    They were repealed after Jefferson took office. There is a difference. But it strikes me that the fact that the congress passed them only shortly after the 1st amendment was ratified should tell you a bit about what the congress–many of the members of which were likely among the “founders”– thought of the 1st amendment.

    Regarding Schenck and Frohwerk, yes, those cases were during wartime. After the US had decided to intervene in the internecine war in Europe–WWI. Schenck and Frohwerk were convicted of obstructing the US wartime draft, by speaking (in the case of Schenck) and publishing (in the case of Frohwerk) against it. And the convictions were upheld. Speech. The Press. I don’t know what more I need say to suggest that the 1st amendment’s guarantees regarding freedom of speech and freedom of the press are dishonored.

    I recognize that Holmes (I believe it was) wrote that the constitution was not a suicide pact. But the idea that speaking and publishing to resist the draft during WWI would be suicidal to the US was idiotic in the extreme then, and it’s idiotic in the extreme now.

    What the opinions in the Schenck and Frohwerk cases show you is that the Supreme Court can rationalize away pretty much any of your constitutional rights. I was struck by that 34 years ago, when I took ConLaw and first read the opinions in the two cases.

  14. #14 Ed Brayton
    May 31, 2005

    raj wrote:

    They were repealed after Jefferson took office. There is a difference. But it strikes me that the fact that the congress passed them only shortly after the 1st amendment was ratified should tell you a bit about what the congress–many of the members of which were likely among the “founders”– thought of the 1st amendment.

    Repealed is of course what I meant, since my previous sentence said that the courts did not overturn it. And I naturally agree that the acts were among the most shameful laws ever passed in our history. But there was a major battle over such laws and the right side won those battles. If the Schenck and Frohwerk cases were to come up today, there is no doubt in my mind that they would be reversed. Last year’s cases involving the rights of American citizens to be held without charges supports that contention. Even on the narrower question in those cases, the court smacked down the administration hard. Surely in a case involving free speech in wartime, the court would be even less likely to allow the administration to do what it wants.

  15. #15 raj
    June 1, 2005

    Ed, I apologize. I have not been explicit enough. I’ll repair that now.

    The 1st amendment is a nice expression of intent. An expression of the thought that freedom of speech, freedom of the press, freedom of religion, and so forth, were important. What I believed I was saying, but apparently didn’t say clearly enough, is that the intent has not been carried through. That’s what I meant to say, and now I’ve said it. I won’t repeat the examples that I gave earlier.