The case against the First Amendment

Adam Lamparello, J.D. Assistant Professor of Criminal Justice

The First Amendment to the United States Constitution protects the right to freedom of speech, which is considered essential to liberty and an informed citizenry. Indeed, the original purpose of the First Amendment was to create a “marketplace of ideas” in which diverse opinions on matters of public concern, however unpopular, distasteful, or offensive, were countenanced in theory and protected in fact. And the United States Supreme Court’s First Amendment jurisprudence reflects steadfast adherence to these principles, holding in numerous cases that a robust and expansive right to free speech is critical to ensuring liberty, autonomy, and a society where diverse viewpoints inform citizens and ensure a properly functioning democracy.

But there should be a limit to the speech that the First Amendment tolerates. Some types of expression are so vile, so valueless, and so vituperative that nether the Constitution nor the courts should afford them protection.

Think about it:

• Should people be permitted to hurl racist slurs at minorities? No.

• Should they be allowed to stand outside the funeral of a deceased gay soldier who died in the Iraq War with signs that say, “God Hates F**s?” and “Thank God for 9/11?” No.

• Should a newspaper have the freedom to publish a satirical depiction of a famous evangelical minister having sex with his mother in an outhouse? No.

• Should people be allowed to publish videos of women, in six-inch heels, torturing and killing kittens by driving those heels through their eyes (referred to as crush videos)? No.

• Should wealthy individuals be permitted to donate millions to political candidates knowing that such donations will give them unfair influence in the political process? No.

• Should Nazi groups and the KKK be allowed to march on Main Street spewing antisemitism and racism? No.

• Should people be allowed to wear t-shirts with a symbol of a Nazi swastika? No.

• Should pro-life groups be permitted to march with signs depicting dismembered fetuses? No. Such speech should be banned everywhere and in any circumstance for two reasons.

First, speech such as that mentioned above has no value. It contributes nothing whatsoever to public discourse on matters of public, social, and economic policy. Put simply, it contributes nothing to the “marketplace of ideas,” an informed citizenry, or an efficacious democracy. And neither the text nor the original purpose of the First Amendment support allowing individuals to, among other things, utter racist slurs, demean, degrade, and denigrate others, or traumatize vulnerable and marginalized groups.

Second, such speech causes tangible and often irreparable harm. Make no mistake: speech can and does traumatize individuals, often causing severe emotional distress. For example, how would you feel if, as a minority, someone hurled a racist slur at you? How would you feel, as a person of Jewish faith whose great-grandparents died in the Holocaust, if you had to tolerate people marching with Nazi swastikas? How would you feel if, as a homosexual, someone called you a homophobic slur?

To ask the question is to know the answer. Such speech serves no public purpose whatsoever and bears no nexus to the First Amendment’s original purpose, the interest in preserving liberty, or the need to protect democracy. It should be banned.

This is not to say, of course, that offensive, distasteful, and unpopular speech should be restricted. Indeed, many forms of protected speech may cause emotional distress, but nonetheless contribute to reasoned discourse on matters of public concern. It is to say, however, that there is a limit. And that limit occurs when speech has no value whatsoever, and is intended to – and does –traumatize others. Put differently, the right to free speech doesn’t foreclose the notion that speech must be responsible or, at the very least, have minimal value in contributing to public discourse and the marketplace of ideas.

Now, some may argue that limiting any types of speech will have deleterious consequences, namely, that it will empower the government to continually ban various types of speech with which it disagrees, and which has been historically protected. This slippery slope argument is without merit. First, the Supreme Court has already recognized limits on free speech, such as in Miller v. California, when it held that obscene speech that appeals to sexual interests receives no First Amendment protection, and in Brandenburg v. Ohio, where the Court held that words intended to incite imminent violence lacked First Amendment protection. Second, the solution to this problem is obvious: enact a statute that delineates with specificity the precise words or expressions that are prohibited. In so doing, the law will be clear and the limits on speech – which admittedly should be narrow – will be unambiguous. Others may argue that the standards used to determine which speech should be limited is invariably subjective and will thus lead to arbitrary and unconstitutional restrictions on speech. But this argument misses the constitutional mark. Many, if not most, constitutional provisions require subjective value judgments, such as whether a punishment is cruel and unusual under the Eighth Amendment, whether a search is unreasonable under the Fourth Amendment, and whether counsel is ineffective under the Sixth Amendment. Moreover, banning the type of speech mentioned above – and specifying in a statute precisely what speech is prohibited (e.g., specific racist slurs, Nazi symbols) – is hardly subjective. Any reasonable person with a conscience would agree that this speech has no value and inflicts severe injury on its targets.

Despite this principled –and practical – approach, the Supreme Court is exceedingly reticent to support any limits on speech other than sexual obscenity and fighting words. In Hustler v. Falwell, for example, the Court held that the First Amendment protected a depiction of the Reverend Jerry Falwell having sex with his mother in an outhouse.

In Snyder v. Phelps, the Court held that the First Amendment protected members of the Westboro Baptist Church who held signs stating “God Hates F**s” and “Thank God for 9/11” out- side the funeral of a deceased military veteran. In Citizens United v. FEC and McCutcheon v. FEC, the Court held that money constituted speech under the First Amendment and, in so doing, invalidated limits on contributions to political candidates, which all but ensured that money would continue to corrupt the electoral, political, and democratic process. And in U.S. v. Stevens, the Court affirmed a Third Circuit decision holding that the First Amendment protected depictions of animal cruelty, including dog fighting videos and crush videos, where a woman wearing sixinch heels digs those heels into the head of a kitten, torturing and ultimately killing the kitten. These decisions were wrong. Dead wrong.

The notions of allowing individuals to express offensive, distasteful, and unpopular speech and enacting reasonable limits on valueless speech that causes severe emotional harm are not mutually exclusive. It’s one thing, for example, to say that homosexuality is a sin. It’s quite another to call someone a homophobic slur. It’s one thing to say that abortion is immoral. It’s quite another to shove pictures of dismembered fetuses in the faces of women trying to access abortion services. In each example, the former should be protected, and the latter should not. The distinction is predicated on value and injury.

Ultimately, citizens must consider the type of society in which they want to live. A society that values liberty, autonomy, and democracy need not tolerate valueless speech that contributes nothing to public discourse, and that marginalizes others, causes others to commit suicide, or humiliates others in a manner that causes lasting harm.

If you disagree, let’s see how you feel when, if you are gay, another person shoves a sign in your face that says, “God Hates F**s” or, if you are Jewish, when a person shoves a sign in your face that says, “The Holocaust Never Happened.”

You know exactly how you’d feel. That is the point – and the problem. And it’s a problem that needs to be solved – now.