The First Amendment to the U.S. Constitution reads, “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.”
Even if it could be argued that the phrase “no law” doesn’t apply to “speech,” the word “abridging” certainly does. Congress isn’t to abridge freedom of speech. There isn’t any qualifier such as “except for national security” or that the freedom applies only to “productive, positive speech.” It’s a pretty flat prohibition.
Being younger, some find themselves quite the absolutists about the First Amendment and get upset about any restriction on any speech at any time. However, such an absolutist position is both impossible logically, and has no support in our tradition. We can and do restrict speech, and for good reason.
It is important to understand why and how speech must sometimes be restricted because one of the main arguments used by the Supreme Court in throwing out restrictions on campaign spending was that speech was an unlimited good: more was better than less. In the Citizens United decision, the conservative majority suddenly became absolutists on protecting free speech. All of a sudden, Roberts, Scalia, Thomas, Kennedy and Alito were sounding like the second coming of William Douglas and Hugo Black.
Speech as performance
Suppose you ask someone for directions and they tell you to take a certain trail and declare it to be safe. They know the trail is unsafe, but say nothing about that. You take the trail and get badly injured through no fault of your own. You sue the person who told you it was safe and their reply is that they are exercising their freedom of speech and you can do nothing about it. I doubt you (or a court) would find their answer acceptable. (This example was suggested by an article by Robert Post from the book “Money, Politics, and the Constitution”.)
There is the famous example of falsely yelling fire in a crowded theater and someone getting killed in the ensuing panic. That speech isn’t protected either.
So-called “fighting words” – abuse so extreme that any reasonable person would reply with force – that’s not going to be protected.
And, of course, there are all manner of restrictions on the claims that producers can make for their products, what you can promise in a contract or a will, and so on.
Some speech provokes actions, may even be an act in and of itself. And that speech isn’t protected if others rely on it and suffer accordingly.
Time, place and manner
There are any number of restrictions on speech that don’t prohibit the speech per say, but regulate when and how you can say it, so called “time, place and manner” restrictions. You have no right to use a bullhorn at 2 a.m. in a residential neighborhood but you would have an almost unlimited right to publish the exact same speech in a newspaper.
You can be hustled out of a public speech for disrupting it, but have to be allowed your say (most likely) outside on the public sidewalk. You should be able to say anything you want without fear of being arrested at a meeting of the zoning commission or city council – but only when public comments are in order. The U.S. Senate may be (or once was) the “world’s greatest deliberative body,” but if you are sitting in the gallery, you had better be quiet. And if you are a member of the Senate, you still can talk only when the presiding officer calls on you.
If you’re in the military, or work for the government, your right to freely express your political opinions publicly is restricted. If you are a lawyer, you’re prohibited from disclosing privileged conversations you have with your clients.
Election related restrictions
This series is focused on elections, and there are well established restrictions on free speech connected to elections that no one (so far) seeks to challenge. You cannot do politicking inside a voting station, can’t put campaign signs near one and can’t stand outside with a bullhorn and shout political speeches through the windows.
The reason for these restrictions is worth a closer look. We prevent political speech in a voting station because it would interfere with a fair election. In other words, to preserve democracy, there are times speech must be restricted.
Rights in conflict
The absolutism of the First Amendment inevitably comes into collision with the other rights listed in the Constitution. The right to a fair trial may require that certain speech be restricted. Your right against self-incrimination may allow you refuse to speak. Freedom of religion may restrict officials of the government from verbally endorsing a particular religion.
We sometimes have a problem accepting that rights might have to be balanced against other rights. Our definition of a right implies it should be absolute. But, as the old saying goes, “My right to swing my fist ends where your nose begins.”
Justice Souter, speaking at Harvard’s commencement once said, “Even the First Amendment … a right as paramount as any fundamental right can be, does not quite get to the point of an absolute guarantee. It fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict … and the explicit terms of the Constitution do not resolve that conflict when it arises.”
Why is the first amendment there?
So free speech isn’t in actual practice taken as absolute, and logically it cannot be. How do you set limits on it then? That’s not an easy question, but Robert Post, in the same article cited above, suggests asking the question, “What is the First Amendment for?” The obvious, but incomplete answer is to protect against government tyranny. Post pushes further into this question and argues that the function of the First Amendment is to make democracy work.
We erroneously assume that what makes a democracy is just elections: majority rule. Elections are critical, but insufficient. A long line of thinking suggests that deliberation is also essential to a democracy. The Soviet Union had elections, it wasn’t a democracy. I lived in Kenya where they had elections, even had contested elections — bitterly contested elections — but the lack of free speech, the lack of a free press and the lack of freedom of assembly meant it was only half a democracy.
Of course freedom of speech stops the government from putting you in jail for political opposition, but as critical as that is, it is a narrowly focused definition. The broader reason is that in order for the democracy to work, citizens have to be free to engage in public discourse without fear about their common life and what the government should do about it.
Preserving elections
So, if speech can be restricted, and if free speech is aimed at protecting you and at making the democracy work, then we can consider the role of money in elections again. Does unrestricted use of money to create speech related to elections and lobbying of public officials threaten democracy? The answer to that is surely yes, and I’ll go into that next time.