Sparks Commentary: The First Amendment: Protecting freedom of speech and freedom of the press

"I disapprove of what you say, but I will defend to the death your right to say it."

- Evelyn Beatrice Hall, in a statement often misattributed to Voltaire (although the author rightly viewed this as an accurate paraphrase of Voltaire's sentiments)

The first thing many people think of about the Constitution

The Constitution is filled with passages that are of the utmost importance to this country, from separation of powers in the original Constitution to the Bill of Rights in the amendments. But if I were asked which passage may be the most important to the majority of Americans, my vote might well go to this part of the Bill of Rights: "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." (Source: First Amendment) This is the Constitution's famous First Amendment, and it is indeed the first of the ten amendments that make up our modern "Bill of Rights." It is also the first thing that most people think of when they talk about what's important to them in the Constitution, since the rights that we have are easier to visualize than abstract concepts of separation of powers and checks & balances. (Although these things are vitally important, too, as I detail in another post that I wrote elsewhere.)

United States Bill of Rights

Freedom of speech and freedom of the press, and the right to "petition the government"

The bedrock of American political life today may be the parts about freedom of speech and freedom of the press. These are both forms of a larger concept called "freedom of expression" - one in the spoken form, and the other in the written form. (Although I'm sure that sign language and other gestures would also be considered to be "freedom of speech" under this constitutional definition, and free expression on the Internet has long been held to be included under this amendment as well.) The right to "petition the government for a redress of grievances" is another specific form of this freedom of expression, which is usually written down on paper and other hardcopy material. But it is also sometimes found in the Internet form that I have mentioned as well; and it is well that this freedom of expression (in all of these forms) is protected by the First Amendment. It has been codified as a general principle in all political communication throughout this country - and other communication, for that matter.

Martin Luther King giving his "I Have A Dream" speech, 1963

There are some legally recognized exceptions to this, from perjury to death threats

There are some legally recognized exceptions to this general principle, of course; and not all of them are unreasonable ones. Many of them are, I should make clear, but not all of them are, and some of them are even necessary to the public safety. I include in this category such examples as slander, libel, false advertising, perjury, or death threats (perhaps the most objectionable kind of speech in this country, or any other). Many of these recognized exceptions involve some form of dishonesty, and are thus recognized by the Supreme Court case law as exceptions consistent with the "original intent" of the First Amendment (which is an important concept in American law). One area of controversy here is the use of free expression for harassment purposes. This includes behaviors from wanton sexual harassment (which I oppose strenuously), to invasions of privacy by telemarketers and (even worse) reporters. Although I suspect the media would never print this if it was true, I suspect that reporters are one of the most unpopular professions in America, and rank them somewhere below lawyers and politicians in their ability to distort the truth for their own purposes, and invade one's privacy brazenly. There have definitely been abuses here, I should acknowledge, and I am reluctant to defend the media in this way because of my deep-seated suspicion towards them. Nonetheless, a free press is a necessary institution today, and it is a much better source of information than an un-free press (which is the only alternative to this, for the purposes of disseminating information). Censorship stands opposed to the free flow of information to those who need it, and we are right to be suspicious of anyone that would limit - or control - our right of access to information.

United States Supreme Court

An un-free press is a dangerous monopoly

There need to be limits on the media's ability to invade others' privacy, to be sure, as a press with the unlimited ability to trespass on private property and harass others would be just as dangerous as any police force. But despite the bias that pervades a great deal of contemporary journalism in this country (perhaps all journalism everywhere), they get things right more often than a state-controlled media would; perhaps partially because there is free competition in the marketplace between the competing versions of the news. An un-free press is a dangerous monopoly that leads to other abuses, not the least of which is outright violence against political opposition from various parts of the press and other sources. Thus, although I won't defend everything the media does - as I said, I'm a major critic at times - it's a much better institution than the potential alternative; and I wholeheartedly support the institution of a free press.

Printing press from 1811

The right of the people "peaceably to assemble"

An aspect of the First Amendment that has been sometimes ignored here is "the right of the people peaceably to assemble" - or in other words, to gather together in peaceful ways. In previous generations, any assembly for political or religious purposes was considered suspect unless explicitly approved by the government. Thus, organized opposition to the government was sometimes crushed in embryo at the outset. Thus, the biggest reason for this important clause may have been to protect the rights of organized opposition to the government. This is, of course, as long as these assemblies are "peaceabl[e]" (or in other words, "nonviolent"); and respect the property of others. Trespassing on land that doesn't belong to the assembly (or anyone in it), for example, might be forbidden by the Congress - and rightfully so. Moreover, violent assemblies, out-of-control riots, and unthinking mobs are not "peaceabl[e]" assemblies; and they are thus not protected by this part of the First Amendment (as people like John Adams made clear in their denunciations of mobs). But the general principle here is still a good one, I should be clear to say, just as freedom of expression is still a good principle for the country's legal system. This principle deserved to be included in the First Amendment and the Bill of Rights, in short, and it is thus included in the amendment today, all of these years later. It has not been as frequently invoked as the parts about "freedom of speech, or of the press," it is true, but it has still been the subject of a number of court cases throughout this country's history. Moreover, the debate over how to properly interpret this clause is far from over, as continuing protests make clear.

March on Washington, 1963 (part of the African American civil rights movement)

What are the "reasonable exceptions"? (The debate continues today ... )

Most people agree on the need for some "reasonable exceptions" to the general principles here, and there are some examples that virtually everyone would agree on (as I noted earlier). The debate here is more about what those "reasonable exceptions" are, and whether they accord with the amendment's "original intent," as evidenced by the culture of the time. Virtually no one within this country would openly question the general principles here - although some might question them in secret. Moreover, most people would at least pay lip service to the general principles of "freedom of expression." This can make it hard to tell sometimes whether people are genuinely in favor of it, or whether they just want to retain this freedom for themselves and their allies (and don't want their designs on others' freedom to be made public). But I do not wish to conclude by pointing fingers at anyone here. Rather, I would like to close this post with some general comments about these general principles, and end on a positive note by so doing.

Presidential debates between Richard Nixon and John F. Kennedy, 1960

Conclusion: The right of free expression is the bedrock of American political life

Whatever these abuses of these freedoms throughout history, the right of free expression is the bedrock of American political life, and the right of the people "peaceably to assemble" isn't too far behind it, in my opinion. It might be said that Americans sometimes view freedom of expression - artistic and otherwise - as an end in itself, and there is truth in this view. (This may even be an essential part of understanding the American mind.) But we also view it as a means to other ends that are equally important to us, since all popular government rests on freedom of expression. Words are one of the most potent weapons by which the people can defend themselves against tyranny. The Constitution provides for democracy and free elections, and allows people to compete against each other in heated contests over public office. An essential part of preventing the interference of the government in these contests is making sure that people have the right to say what they want, and to support the candidates that they please if they don't wish to run for this office themselves. Words are a potent weapon against every form of tyranny, since the pen is sometimes even mightier than the sword. The ability to silence one's opposition would give a tremendous advantage to anyone who has it, and the Founding Fathers rightly viewed all such advantages as unfair, and endeavored to prevent them via this amendment. The original Constitution didn't include these protections on freedom of expression, it is true, but the Bill of Rights did; and we can be glad that they remembered to add this part into the Constitution.

"Liberty's too precious a thing to be buried in books. Men should hold it up in front of them every single day of their lives and say: I'm free to think and to speak. My ancestors couldn't, I can, and my children will. Boys ought to grow up remembering that." - Mr. Smith Goes to Washington

If you liked this post, you might also like:

The First Amendment: Protecting religion from government (and not the other way around)

The Second Amendment: Protecting the gun rights "of the people"

The Bill of Rights: Historical context and strict construction

The tyrannical police state: The worst nightmare of the Founding Fathers

Actually, the death penalty is constitutional (as the Fifth Amendment makes clear)

Part of a series about

The Constitution