A version of this article was first published in the September 19, 2019 Epoch Times.
We complain constantly about how vulgar, hateful, and polarized our public discourse has become. But most of us are unaware of one reason why current standards are so low: judicial misinterpretation of the Constitution’s First Amendment.
The First Amendment prohibits Congress from passing laws “abridging the freedom of speech, or of the press.” Those who adopted the amendment understood it to mean that Congress is absolutely barred from restricting expression within the then-accepted scope of “the freedom of speech” or within the then-accepted scope of “the freedom of the press.”
However, the amendment allowed Congress to prohibit or regulate other expression, if it otherwise has constitutional power to do so. And the amendment did not apply to the courts or the states.
The speech and press rules courts now apply are largely unrelated to the Founding Era meaning. During the 20th century, judges extended the First Amendment beyond Congress and created an entirely new set of rules based on what they thought was a balance between social benefits and social costs.
But, of course, judges have no special expertise in identifying or balancing social benefits and social costs. Not surprisingly, their rules turned out to be flawed.
Example No. 1: Lawsuits for defamation of character (slander and libel) traditionally allowed victims of smears to disprove false charges and vindicate their good names in court. Defamation suits were designed as a sensible alternative to fighting duels. By discouraging smears, they helped raise the general level of public discussion.
But during the 20th century, the Supreme Court curbed the right of “public figures” to sue for defamation. Now, smear-mongers can make baseless charges (“My opponent is a racist!”) knowing the victims usually cannot correct the record judicially. I experienced this myself when I was a candidate for governor of Montana: Unscrupulous detractors told anti-environmentalists that I had done legal work for environmentalist Ted Turner of CNN. The charge was laughable—at the time I was teaching and not doing legal work for anyone, least of all for Turner. But apparently some voters believed it. Other detractors spread a rumor that I’d been a draft-dodger. That charge also was laughable—I’d volunteered for the army at the height of the Vietnam War—but, again, some people believed it. In both cases, modern Supreme Court rules denied me a judicial remedy.
To those who adopted the First Amendment, defamation did not qualify as “the freedom of speech” or “the freedom of the press.” All citizens—public figures or not—had free access to the courts to restore their good names. But modern judicial doctrine usually enables smear-mongers to smear with impunity.
Example No. 2: Public discourse is now saturated with sexual, vulgar, and violent messages. Most current movies would never pass historical standards. According to some accounts, 30 percent of the data transmitted across the internet are pornographic.
In part, this is because while the Supreme Court denies First Amendment protection to “obscene” expression, it finds very few things to be “obscene.”
Just to clarify: If the courts honored the First Amendment’s original meaning, verbal pornographic material for adults would still be protected. Congress probably couldn’t ban “Lady Chatterley’s Lover.”
However, officials could prohibit live or filmed sexual or simulated sexual performances (what the founders called “lewd displays”), pornography targeted at minors, and probably violent displays as well. Allowing them to do so would end the “race to the bottom,” whereby entertainers and others compete to see who can inflict the most social damage.
Example No. 3: Just as false modern “First Amendment” rules protect some expression they shouldn’t protect, they also muzzle some expression they should foster. For example, the Supreme Court now permits Congress to force political organizations to disclose the names of their contributors. The result is a reign of terror against people who support politically incorrect causes. This also squelches honest debate.
Under the real meaning of the First Amendment, contributors to media advertisements have a right to anonymity that is part of “the freedom of the press.” You can contribute to public discussion without endangering yourself or your family—so long as you don’t defame others.
Example No. 4: The 20th-century Supreme Court ruled that commercial messages, such as advertising, receive less constitutional protection than political speech. This may enable politicians and regulators to punish companies that advertise in ways displeasing to politicians and regulators.
But as originally understood, freedom of speech and press covers respectful public discourse on almost any topic—not just political, but also commercial, scientific, philosophical, and artistic. The First Amendment doesn’t subordinate commercial messages to political messages.
Example No. 5: The original meaning of the First Amendment protects good-faith theological discussion and disagreements. By way of illustration, it protects your right to argue against a religion by saying, “I don’t think its founder was a real prophet for the following reasons … ” But it doesn’t protect “blasphemous” speech—that is, insults hurled merely to hurt or enrage. Hence a claim such as “that religion’s founder was the lying son of a whore” falls outside the First Amendment, as originally understood.
Would the First Amendment’s original understanding be appropriate for the United States today? Perhaps not entirely. But some of the original rules continue to make sense. You can see this by reading founding-era newspapers and other media. The debate is certainly robust and free-wheeling. But it is conducted at a higher standard than prevails now.