The Soul of the First Amendment

by | Nov 6, 2017 |

A politician assaulting a journalist. A presidential candidate suggesting protesters in the audience should be beat up. A comedian producing a photoshoot with the bloodied head of the president, styled like an ISIS beheading. A sharp increase in anti-semitic, racist, and sexist harassment spilling out of the internet’s darkest corners. The President of the United States blocking critics from his Twitter account, while his messages on the platform are cited as official government statements by federal judges. And if you don’t like something someone says, it’s easier to yell “fake news” than to engage in a civil political debate.

It is a strange time for the freedom of speech in the United States. As political tensions rise, commentators on both the right and the left have called for some sort of restriction on the freedom of speech for speech they don’t like, while the laws around harassment, abuse, and violence have not kept up with changes in technology. Two of the world’s largest social media platforms–Facebook and Twitter–were manipulated by foreign intelligence agencies in an active measures campaign against the U.S. elections, leaving low-information voters susceptible to propaganda. These revelations have put policymakers and tech leaders in a tough situation, one that politicians in European democracies do not necessarily find themselves struggling with.

The difference is the U.S. Constitution’s First Amendment, and the jurisprudence that has built up around it since the Amendment’s ratification in 1791. Associate Justice of the Supreme Judicial Court of the Massachusetts, Charles Fried has called this body of law “the most libertarian and speech protective of any liberal democratic regime,” with the result that freedom of speech is protected in the U.S. more intensely and controversially than anywhere else in the world.

Few people know more about, or defend more vigorously, the First Amendment than Floyd Abrams, a freedom of speech and press attorney who has argued cases from the Pentagon Papers to Citizens United. His most recent book, The Soul of the First Amendment (Yale University Press, publication April 2017), is an examination of how the American approach to freedom of speech has changed, diverging from other democratic nations, and a powerful defense of what is both the most honored and most misunderstood part of the U.S. Constitution.

In a five-part essay, The Soul of the First Amendment takes the reader through the history of the Bill of Rights’ first entry, beginning with the debate by the Framers over whether a Bill of Rights was even a necessary addition to the newly-drafted Constitution. For most of the early history of the country, the First Amendment was not taken very seriously or enforced.

Abrams writes, “Until well into the twentieth century, censorship was rampant. It was as if the First Amendment had yet to be written.” Newspaper editors were jailed for publishing articles critical of government figures; police officers were allowed to be final decision-makers of whether theatrical performances were “immoral” or “offensive to decency.” The publishers of The Little Review were fined for publishing sections of James Joyce’s Ulysses for the book being deemed “unintelligible” and “harmful to the morals of the community,” and the classic masterpiece was not allowed into the United States for over another decade. It was until 1965 that a federal statute was first held to be unconstitutional under the First Amendment.

The jurisprudence built up around the First Amendment is among the most libertarian in the world. In Canada and throughout Europe, hate speech is often punished with the logic that the harmful effects outweigh concerns over government restriction of speech, because as one Canadian court ruled, hate speech “does little to promote the values underlying freedom of speech.”

In contrast, according to Abrams, “American courts might well respond that the ultimate First Amendment value is the avoidance of government censorship without regard to the worth of the speech itself… The exceptionalism of the United States in the protections it offers to freedom of expression does not mean that other democratic nations do not respect, honor, and generally seek to protect it; it does mean that American law does so more often, more intensely, and more controversially than is true elsewhere.”

One area where this differing approach to freedom of speech creates stark policy differences is privacy. The European Union’s “right to be forgotten,” beyond certainly being a challenge for Google and other search engines, has presented interesting challenges to discussions around the right of access to information and the future of a free and open internet. Such a policy, Abrams believes, would certainly never be implemented in the United States, thanks to the First Amendment.

“It is not a small thing for a government, let alone a continent-wide governmental entity, to criminalize the dissemination of truthful information on the medium that most  people turn to for just such information,” Abrams writes. “But that is now the law in Europe. And it has also been applied to online copies of newspapers that published truthful articles years before. In April 2016, for example, a Belgium superior court ordered a newspaper to delete from a twenty-two-year-old article in its online archives the name of the driver of a car who was in an accident that resulted in two deaths.”

Another form of speech American free speech jurisprudence takes a far more libertarian approach to than Europe is hate speech. For much of Europe, this approach is whether the speech resulted in an “incitement to discrimination;” in the United States, hate speech can be prosecuted only if its purpose is incitement to violence or other unlawful action. This has the strange result of neo-Nazis and white supremacists, who use Twitter to recruit and harass, having their Twitter feeds blocked in Germany , but all the content is available to view in the United States until Twitter decides the user’s behavior violates their Terms of Service. Another example of this differing approach came from then-presidential candidate Donald Trump, whose disparaging remarks toward Mexicans launched a political career in the United States but would likely have resulted in prosecution in parts of Europe.

On hate speech, Abrams’ reasoning seems less compelling than other arguments in his book. He states, “It is understandable that some nations have sometimes responded by limiting particularly hateful speech that may have contributed to past tragedies. The United States has been fortunate not to have suffered such horrific events…” In this argument, he overlooks the enormous tragedies of slavery, the Civil War, and the genocide of Native Americans–all horrific tragedies that have left barely-healed scars that stretch through our modern discourse, from debates over the display of the Confederate flag, to police shootings of African Americans, to the violence Muslims, Jews, and African Americans face online every day.

Other discussions in the book, from a look at Citizens United to an examination of the role of the press regarding leaks, touch on some of the most critical debates currently being held in the United States. Most of all, The Soul of the First Amendment is a love letter to the First Amendment, and a call to arms to defend it in a time when it is more critical than ever before.

Disclosure: Fibonacci Media Co./WhiteHat Magazine participates in the Amazon Services LLC Associates Program.

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