OPINION:
America’s Founders believed the exercise of the rights protected by the First Amendment “lies at the foundation of free government by free men.” A recent survey on First Amendment rights, however, reveals a disappointing trend among Americans who apparently do not want a free government, free men, or even — tragically — a First Amendment.
A July poll from the Foundation for Individual Rights and Expression (FIRE) found that over half of the Americans surveyed (53%) believe “the First Amendment goes too far in the rights it guarantees.”
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Doubtless, many fear the ramifications of such an alarming trend away from First Amendment protections. Fear not. The debate is nothing new.
The First Amendment: Foundational and fundamental
As a society, we have been debating the First Amendment’s contours since before its inception. The First Amendment was formally ratified in 1791, and the first time the Supreme Court ever uttered the words “freedom of speech” was over 200 years ago in the 1821 case of Anderson v. Dunn. And, for all of the nation’s faults and divisions, we have zealously guarded the rights enshrined in the First Amendment for good reason — it underlies the entire American premise.
SEE ALSO: More than half of adults say the First Amendment sometimes ‘goes too far’
Nearly 100 years ago, Justice Louis Brandeis noted:
“Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”
That “greatest menace” seems to have come to fruition with over half of Americans apparently thinking the First Amendment landscape should be trimmed not with pruning shears, but a chainsaw. James Madison, the man whose quill was responsible for the First Amendment, advised us “to take alarm at the first experiment on our liberties.” Perhaps so, but these 53% of respondents are not the first — and certainly will not be the last — experiment on liberty.
In fact, these 53% of respondents fail to understand the fundamental irony of their position. Those who say the First Amendment goes too far are exercising the exact right they seek to limit.
Perhaps without realizing it, their opinion stands as a testament to the First Amendment’s strength, and the limitations they yearn for will fail, as they must.
“We have nothing to fear from the demoralizing reasonings of some,” as Thomas Jefferson said. He also said, “let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”
The answer: More speech
The Founders knew, as Justice Brandeis noted, “that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”
“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education,” Justice Brandeis said, “the remedy to be applied is more speech, not enforced silence.”
Such is the command of the Constitution. In other words, the Constitution dictates that the answer to speech you do not like is more speech.
We have seen this debate play out many times. The First Amendment protects the right of individuals to:
- Protest military funerals on the basis that the sin of the United States was bringing judgment upon the nation through Sept. 11, 2001 (Snyder v. Phelps)
- It permits anti-American individuals to burn the American flag on a public sidewalk (Texas v. Johnson)
- It allows anti-war protesters to wear profanity-laced clothing in a government building full of minor children (Cohen v. California)
- It permits a priest ostracized by his own church to spew antisemitic rhetoric in a Chicago meeting hall (Terminiello v. Chicago)
- It permits a group of musicians to trademark a racially insensitive name (Matal v. Tam)
- It protects a racist young man’s act of burning a cross from selective First Amendment prosecution (R.A.V. v. City of St. Paul)
- It permits a pornographic magazine to openly mock a famous evangelical pastor in its pages (Hustler Magazine v. Falwell)
No doubt one can find things with which they agree and things they openly despise in the foregoing illustrative list of First Amendment cases. That you hate flag burning or love mocking Christians is beside the point — the theory of the First Amendment is, as Justice Oliver Wendell Holmes said, that the “best test of truth is the power of the thought to get itself accepted in the competition of the market.” He said, America “should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”
The reason for this, as outlined in Texas v. Johnson, is simple: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
As Chief Justice Roberts stated, “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and inflict great pain.” But, America “cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
The First Amendment has endured for over 230 years, and the noxious doctrines and demoralizing reasonings of those who wrap themselves in the blanket of the First Amendment’s protections to suggest it offers too much protection will fail under the ironic idiocy of their own ideas.
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Daniel Schmid is a constitutional attorney and the associate vice president of Legal Affairs with Liberty Counsel, an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family. Since 2012, Daniel has been on the front lines of litigating many critical First Amendment issues and has taught constitutional law at Liberty University School of Law.
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