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By William Courtney|Berrett-Koehler Digital Intern
Disclaimer: The views reprenested in this article do not represent that of the author, and do not necessarily represent the opinions of Berrett-Koehler Publishers, Inc. or those mentioned in the article
I don’t like the government shutdown. I thinks its hurting our economy and making members of congress look like idiots. You don’t have to like my opinion or agree with me, but my words are protected by the First Amendment. Think of the First Amendment as a giant shield. So long as you stand behind that shield, you are protected.
It would be unwise talk about the First Amendment and not provide James Madison’s words first: “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.”
I don’t usually agree with Nicholas Cage, but what he said in National Treasure does have some merit; “People don’t talk like that anymore.” What do Madison’s words actually mean though?
Cornell Law School offers a list, with descriptions, of what is protected speech and what isn’t. The list itself is longer than the first amendment. In over 200 years both Congress and the US court system has had ample time to interpret the First Amendment, leaving us where we are today.
Yet after looking at the First Amendment and relooking at, it becomes clear that understanding comes with the eye of the beholder. Fully understanding the text feels more like literary criticism than jurisprudence. In fact the text is so vague, some suggest changing the contents to better reflect the massive changes our society has gone through since the amendment was first passed.
Not so, says Bill Turner. In his book, Figures of Speech: First Amendment Heroes and Villains, he says “The creaky old document as interpreted over the years, has made us a free people and is flexible to protect us in any century” (185).
The books greatest asset and Turner’s greatest gift however, is his interpretation of the First Amendment and subsequent cases. To fully understand this, trying reading this recent Supreme Court Judicial Opinion. The length itself is daunting.
Somehow Turner has found a way to condense judicial decisions into brilliant bursts of text, mixed with interesting history. He picks out some of the most relevant cases in US Supreme Court history, ones we should all know.
Take for instance the chapter on Clinton Fein and the ACLU. US Congress was extremely close to banning certain speech on the Internet in the 1990’s. If the law (COPA), had passed, World Wide Web (WWW) users would have been censored like radio broadcast’s are today. The law was deemed unconstitutional because it limited speech rights guaranteed to all adults. It’s scary imagining the WWW today as such a conservative environment.
Also, the First Amendment protects everyone, good or bad. Larry Flynt, the creator of Hustler Magazine, was a frequent visitor to the Supreme Court. In one such case, Flynt was sued over an offensive ad of Reverend Jerry Falwell. Flynt even admitted to using hateful words with the sole purpose of hurting Falwell’s integrity. Yet, the ad was considered protected speech, meaning publishers across the country could keep publishing political cartoons and satire. Chief Justice William Rehnquist,concluded “The fact that society may find speech offensive is not a sufficient reason for suppressing it” (148).
After Flynt won the ruling he said, “If the court will protect a scumbag like me, then it will protect all of you.
Because I’m the worst” (154).
After reading the book, it becomes clear that not everyone in there deserves to be protected, but like Flynt said, they are. The US is a unique nation that even protects the championing of hateful ideas. Other countries, like Sweden, do not provide this same right.
Supporting harmful words or hateful ideas seems counterproductive. It should be obvious what is right to say and what offends others, but that is more a matter of social schemas than anything else. The social problems these words might cause are actually dwarfed by the true value these words represent: democracy and expression of ideas. The minority has a right to object to the majority.
In a nation as big as the US, lines are going to be crossed, but the time might come when you have to stand up for what you believe in. The First Amendment is there to make sure anyone and everyone has a freedom of speech. If that changes the US will crumble because words are what built this country and words will make sure it survives.*
To the US government: get back to work! The nation needs you.
*With this being said, government surveillance could potentially limit a citizens ability to speak, but that is more a focus of Fourth Amendment rights and privacy.