First Amendment

Ask yourself the following question, "What is the First Amendment for?" If you came up with any answer to that question, any answer at all, then you are necessarily implicated in a regime of censorship. The reason is that when you say the First Amendment is for something, it becomes inevitable that at some point you will ask of some instance of speech whether it in fact serves this purpose or whether it in fact does the opposite. That is, if you have what legal scholars call a "consequentialist view" of the First Amendment—a view that values free speech because of its "good effects"—then you are necessarily on the lookout for forms of action, including speech action, that subvert those effects. It does not matter what you choose as the "good effects," at some point it will be a logical inevitability that some speech action subverts those effects. The conclusion is easy: as soon as you locate and move against speech that compromises these "effects," you are engaged in an act of censorship already implicit in the First Amendment from the beginning. The other option in identifying the essence of First Amendment freedoms is defining free speech not in relation to some desired consequences but in relation to a moral imperative that is indifferent to consequences, even when those consequences undermine free speech itself. The problem here, however, is that this "moral imperative" is necessarily not "free," it is substantive, moral, political, an imperative that is necessarily at the expense of some other possible imperative. Thus, by identifying a free speech principle in relation to a moral imperative, you again undermine the free speech principle. Point is, whether one is a consequentialist or a nonconsequentialist, you will have to determine how a free speech principle is defined and the policy that follows from it. The problem, I argue (along the same lines as legal scholars and theorists Peter Weston, Judith Butler, Larry Alexander, Paul Horton, and Stanley Fish), is that as soon as you define, accept and justify a "free speech principle," the principle itself has necessarily been compromised. That is, any attempt to justify rather than merely identify a free speech principle will require acceptance of principles that will compromise the said free speech principle. This is not the only argument made against free speech and the First Amendment. Revisionist thinkers have challenged the traditionalist understanding of First Amendment doctrine in other ways, by 1) undoing the distinction between speech and action, thus depriving First Amendment theorists of an object to clarify, and admitting that no action can be regulated or any action can possibly be regulated; 2) pointing out that any "neutral" or "impartial" vision of free speech is always and already hostage to politics, to some underlying "substantive vision," and thus making viewpoint discrimination implicit within free speech doctrine; 3) by arguing that words do not simply describe the world, they effect and change the world, which is just the same thing as arguing that speech is an action. One way of replying to these arguments, made often by First Amendment watchdogs, is to say that the "purpose" of the First Amendment is to insulate the discussion of ideas—the so-called "marketplace of ideas"—from political interference. So, they say, draw no lines, declare all speech protected, and then step back and see what happens. The problem, of course, is what happens when certain kinds of speech is produced that does more harm than good, for example, speech giving information to the country's enemies, obscene speech, threatening words, etc. In fact, it seems that this is what Con is doing, arguing that when I used the word "but" at the end of a paragraph, I was offensive, yet nonetheless my speech was protected. To this I would say, first, that while people always say they want to protect all speech, in practice this never actually happens. Yes, using the word "but" may be offensive to a few people, but this is not the kind of speech that is in question here. We are talking about speech that itself undermines the free speech principle itself, or speech that causes serious harm to others. Point is, we have no way to determine at all what benefits would follow from protecting all speech, but we can determine that there would be negative consequences from doing so. Think about it: What is the risk of governmental regulation of speech? It is the risk of partiality, that is, the risk of proceeding on the basis of something less than the whole truth. Problem is, the condition of partial vision is the condition of humanity, we will never have the whole truth. In other words, the only risk of not protecting all speech is to accept the condition of humanity, i.e., partial vision. Not too bad. On the other hand, what is the risk of NOT regulating speech? Well, racial bigotry, anti-semitism, threats, even violence. In fact, in the landmark pornography case American Booksellers Association, Inc. v. Hudnut, the court clearly articulates the power of ideas expressed in speech: "A belief may be pernicious—the beliefs of Nazis led to the deaths of millions, those of the Klan to the repression of millions. A pernicious belief may prevail. Totalitarian governments today rule much of the planet, practicing suppression of billions and spreading dogma that may enslave others." They continue, "pornography affects thoughts," "is an aspect of dominance," "works by socializing," and therefore not only "an idea" but "the injury" [1]. The court accepts these premises, yet proceeds to protect pornography because, in their words, "If pornography is what pornography does, so is other speech." The argument provided by the court is that the general capacity of language to have consequences is precisely the reason to protect it. In other words, the court recoils from the result that, because speech inevitably produces power relations, political effects, harmful speech provides the argument for the possibility of regulating all speech. The court concludes, "If the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech." Yes, exactly. The court could not follow their argument to its logical conclusion, the realization that freedom of speech never had a beginning because speech is in every sense an action, and actions are subject to regulation, but that does not mean the court does not recognize this conclusion as valid. This is simply one of those moments in legal practice where the court stops short of its conclusion, not because the conclusion is wrong, but simply because the conclusion was undesirable. The court's decision in no way changes the logical conclusion of its premises. I'll continue my arguments in the next round.