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Back to Basics on the First Amendment

Higher education, at its best, directs students to the development of their conscience and their capacity for independence of thought and judgment in civic life. These days, we often hear about First Amendment controversies on college campuses. We could make more sense of these controversies and the role of the First Amendment on campuses by going “back to basics” on the significance of the First Amendment.

The First Amendment is sometimes revered as the most important right in American life, with its status as the first item in the Bill of Rights lending credence to this common sentiment. Actually, it is the First Amendment only by happenstance—it was the third amendment proposed by the first Congress in 1789, but what Congress labeled as the First and Second Amendments that year were not ratified by the states, so its proposed Third Amendment became our celebrated First Amendment.

Despite its exalted status, the First Amendment has always been the subject of controversy in practice. Conservatives have long disliked judicial rulings that extend the First Amendment’s protection of free speech to pornography and such “expressions” as nude dancing. The Supreme Court’s permissive attitude toward pornography arises partly out of the difficulty of finding a “bright line” between artistic expression and purely prurient purposes and obscenity, most famously expressed in the remark of Supreme Court Justice Potter Stewart that while he could not offer an intelligible definition of obscenity, “I know it when I see it.” The best the Supreme Court has been able to do is offer the three-part “Miller standard” (from the 1973 case Miller v. California) that permits restrictions on obscenity according to “local community standards.”

Conversely some liberals have been critical of the First Amendment’s protection of “hate speech,” which, like obscenity, defies a clear and consistent definition, let alone a workable legal standard. The First Amendment’s free speech protections have long had some exceptions and limitations, such as speech that constitutes incitement or is libelous, and restrictions on “time, place, and manner” of protests, marches, and rallies have long been permissible under the First Amendment. But the Supreme Court has upheld speech acts that might be thought of as intimidation, such as cross burning, on grounds that, like its obscenity rulings, it is beyond the competence of the judiciary to mark out limits of “artistic expression.”

Nowadays, more than parsing decades of case law and inherited legal doctrines about the First Amendment, we must draw back and revisit the first principles of free speech embedded in the First Amendment. Problems with free expression on campuses today arise less from dissatisfaction with how the First Amendment has been interpreted by the courts and implemented in practice but from new, widespread critiques of free speech.

These new critiques posit that the concept of free speech itself is to be rejected on grounds that it is, in practice, a tool of oppression (sometimes even “white supremacy”) and that it leads to physical violence; this is the argument of Andrew Marantz, “Free Speech is Killing Us,” New York Times, October 4, 2019. Even more, some have argued that “hate speech” can impart sufficient emotional and physiological harm that it satisfies John Stuart Mill’s famous general principle that liberty may be curtailed when it inflicts violence on others; this is the argument of Lisa Feldman Barrett’s article, “When Is Speech Violence?,” in the New York Times.

The critique culminates ultimately with the proposition that the First Amendment is obsolete. Sometimes it gets swept under the general indictment, quite popular now, of the Constitution sharing the taint of the compromised moral standing of its framers’ tolerance and protection of slavery. Sometimes the argument is stated in merely historicist terms, namely, that as the First Amendment, like the Constitution itself, is 230 years old it should no longer automatically command our respect and should be amended, reinterpreted, or rewritten wholesale to allow for more robust censorship of hate speech. A recent survey of undergraduates finds substantial support for one or more of these positions: only 30% knew that the First Amendment protects hate speech, and, although most students attend public institutions that are bound by the First Amendment, 78% believe colleges should be able to restrict the use of slurs and 71% believe colleges should be able to limit costumes that stereotype racial or ethnic minorities.

But the deepest argument in favor of free speech doesn’t rest on the difficulties of jurisprudence or the problems of defining hate speech. Here it is useful to recall the First Amendment in its entirety:

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.

The first thing to notice is that the First Amendment enumerates five rights (with freedom of speech in the middle of the enumeration), and it is helpful to restate them in different language: the right to be free of politically imposed religious orthodoxy as was the widespread practice in Europe up until the 20th century; the right to worship (or not worship) entirely by individual choice; the right of free speech and a free press (the right to speak is not worth much if there are no media for your speech, which is why certain schemes to attack the media indirectly by taxing newsprint, for example, have met with a skeptical eye from the judiciary); likewise the freedom to worship implies the right to assemble with like-minded citizens; finally, the prohibition against government telling you to shut up and not complain when you are not happy with your rulers—a vestige of monarchical prerogative that can’t be ruled out even in a democratic republic.

These five rights share one common and uniting core principle, which is best grasped by thinking about how radical the Establishment Clause and Free Exercise Clause that lead to the First Amendment were at the time they were enunciated. The twin clauses banning a national religious establishment and protecting freedom of worship should be understood alongside the clause in Article VI that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” No country in history had ever banned religious discrimination in this fashion; the United States in 1787 was the very first. Britain’s Toleration Act of 1688 ended state persecution of religious minorities but did not end religious discrimination; religious tests to hold public office and university positions lasted into the late 19th century. The very name—the Toleration Act—gives away the crucial distinction, as it did not recognize religious freedom by right, but by indulgence of the state. The United States was the first to do so as a matter of right.

Thus, the freedom of conscience at the heart of the idea of religious liberty informs all five express rights of the First Amendment. To extend the argument stated above, your freedom of conscience is not worth very much if you can’t worship God (or not) as you choose, if you can’t say what you think, if you can’t gather with others who share your views, and if you can’t complain to your government when you think it is ruling wrongly. Freedom of conscience descends from the fact that humans are thinking beings.

The freedom to think for oneself is one freedom that no government can take away, since it is internal to the mind of each individual. “All human beings by nature desire to know” is the first sentence of Aristotle’s Metaphysics, which could be paraphrased “all human beings desire to think.” Even Thomas Hobbes, who argued for an absolute sovereign, believed the government could not take away the freedom of thought and conscience, “for men’s belief, and interior cogitations, are not subject to commands.” There have been and continue to be strains of thought that deny the essential human freedom to think, from philosophers who argue there is no free will to the various species of behaviorists who argue that thinking is a chimera determined by materialist or neurological forces. That these challenges remain unproven misses a crucial problem: if it is true that human thought is not truly independent, then self-government, if not the idea of freedom itself, is an absurdity.

Until that unlikely day comes, a democratic society requires the robust protection of the freedom of conscience, and that includes protecting even those individuals with a bad conscience. I have suggested elsewhere in this blog series one way extremist or bigoted speakers might be more effectively confronted than censorship, namely by announcing at the outset of the speaker’s remarks that “The university wishes to highlight the contradiction of a speaker claiming a right of free speech that he would deny to others, and challenges him directly to justify this double-standard.” This would protect the speaker’s rights while having audience members witness the speaker’s bad conscience in being unable credibly to answer this challenge.

It is worth keeping in mind that one of the original understandings of the Bill of Rights is that it was meant to be educative as well as legal. James Madison initially proposed an amendment that would have read “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” For a variety of reasons, this ended up being parceled out to the First and Ninth Amendments, but the explicit reference to the “rights of conscience” was lost in the process. The main point is that while the logic of freedom of conscience was hard won in the history of human political development, it does not depend on historical context for its validity.

Higher education used to be more deliberately disposed to directing students to the development of their conscience as one part of the civic mission of generating mature, thoughtful citizens, and some colleges—especially those with a religious anchor—still try to do this. Forgetting the centrality of freedom of conscience to the First Amendment is part of the general decay in civic education over recent decades, and the cause of protecting a robust campus climate would be well-served by traveling down the indirect route of recalling this first principle.

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