The Heart and Soul of the First Amendment

Everyone is (or should be) aware of the protections the First Amendment affords us as Americans. Our government can’t persecute us for what we say, the religion we practice, the news we decide to print, the protests we wage against it, and our numerous petitions to it. However, most people don’t realize how much of an outlier the United States is when it comes to the protection of free speech. We go to extreme ends, and sometimes tolerate extremely disagreeable opinions, to defend this inherent right.

The United States is unique in the protections of free speech its citizens retain from the First Amendment. There are an innumerable number of statements that you can say in America that have the potential to send you to prison, or in extreme circumstances given a death sentence, in other parts of the world. It is widely known that anti-government speech in North Korea gets you and your family sent to a labor camp for the rest of your lives, and in places like China, opinions that run contrary to the government’s beliefs can get you in a lot of trouble. Other countries like Iran, Indonesia, and Saudi Arabia have blasphemy laws on the books and enforce them, preventing speech against religion, which is in many cases punishable by death. Although Europe has yet to be affected to the extent of our prior examples, we have seen countless free speech demonstrations shut down by those who clearly do not place value upon free speech protections.

Meanwhile, in the United States, you can publicly insult as many religions as you want, criticize every politician in office, and yell obscenities about every minority group, and legally have no consequences. You might anger some people and alienate friends and family, but you won’t be executed, thrown in jail, or have to pay a fine as a result of what you say. Of course, there are exceptions made in cases where the safety of the public is jeopardized, like yelling “fire” in a crowded theater and directly threatening someone. Aside from those safety exceptions, you can legally get away with saying anything you want.

Given how ardently we defend the First Amendment in America today, one would think that it has had a long history of protecting people’s rights to speech and the press’s right to the free publication of various ideas, opinions, and views. But in fact, up until the 20th Century, the First Amendment was largely overlooked and somewhat invisible. One needs to look no farther than the Civil Rights Movement, where many African American demonstrators were harassed, beaten, and driven away. However, traveling back to the time of constitutional creation and ratification, many of the Founders thought that the addition of a provision, similar to the First Amendment, to the Constitution was unnecessary and that it would just state (what they thought were) the obvious rights of men. Notable opponents included Alexander Hamilton, who wrote in Federalist 84 that “the constitution is itself in every rational sense a bill of rights.” Opponents to a Bill of Rights did not think explicitly protecting rights was necessary, because they believed that the Constitution did not give the government enough power to infringe upon unalienable rights.

James Madison initially opposed the addition of a Bill of Rights, sharing similar sentiments to his colleagues. However, once Madison realized that he could use the addition of a Bill of Rights to convince opponents of the Constitution to get on board with ratification, he became the draftsman of the Bill of Rights. Once James Madison presented a draft to the House of Representatives, many debates were had over the language in the amendments, and numerous changes were made to the document before it was ratified. For example, the original text of the First Amendment is as follows:

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances”

Pretty wordy isn’t it? Especially compared to the version that was ratified and that we all know:

“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 biggest difference between the two is how they begin and what this stark difference signifies. Part of what makes the First Amendment so strong is how it begins: “Congress shall make no law…” This clause puts up a barrier against any legislation that curbs the rights stated within, instead of merely stating that all citizens have the right to freedom of speech, religion, etc. The “negative” wording prevents Congress (as well as the Executive branch and state governments) from infringing upon our First Amendment Rights. The Bill of Rights does not outline rights that the government grants us. Rather, it is a list of (some) natural rights that we are all born with that the government is prevented from infringing upon.

However, despite the legal protections afforded to the American populace by the First Amendment, freedom of speech and freedom of the press has been trampled many times throughout American history. To quote George Orwell: “If large numbers of people are interested in freedom of speech, there will be freedom of speech, even if the law forbids it; if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them.”

Many times throughout our history, the First Amendment was ignored in the face of things people cared about more. Book banning and restrictions on publications used to be common practice, like the unwarranted government censorship that banned copies of the play Ulysses. Other First Amendment infractions include, but are not limited to, the suppression and jailing of abolitionists in the years leading up to the Civil War and the imprisonment of people spreading anti-war sentiments during the First World War. Just because the First Amendment has been there all through our history does not mean it has always been honored.

The Orwell quote I shared before is important to remember today, as people have begun to question if freedom of speech is really all that good. A rising sentiment on the political left is that not all speech should be protected, especially hate speech. 40% of Millennials are fine with limiting speech that is offensive to minorities, and many are starting to believe that speech that discriminates, antagonizes, and angers others, especially minorities, should not be protected by law.

Well, they are wrong. Americans have the right to say anything they would like without facing punishment from the government. Short of directly threatening someone or knowingly publishing lies about an individual, every American has the right to have any opinion of any person, place, or group they want, and they have the right to voice that opinion. Freedom of speech is one of the paramount pillars of liberty in a democracy and should be protected at all costs, even if the speech upsets or angers people. Our determination to defend our natural rights is what truly makes America great.

To quote Benjamin Franklin: “Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.”

I was inspired to write this after reading The Soul of the First Amendment by Floyd Abrams. Considered one of the greatest free speech advocates of modern times, Abrams has litigated cases like The Pentagon Papers and Citizens United, and his expertise is demonstrated in the book.  It answers questions like: “Why does the United States have such a strong protection of freedom of speech?” “Should reporters be punished for posting government information given to them by leakers?” and “When corporations donate to political campaigns, is that protected free speech?” Several of the explanations and arguments I outlined in this piece came from the book, and I highly recommend reading it.

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