Can the First Amendment Save Us?
"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.” That was written nearly a century ago, in 1919, in a dissenting opinion by Supreme Court Justice Oliver Wendell Holmes, Jr. The case, Abrams v. United States, involved five Russian immigrants who had been prosecuted for their distribution of leaflets in New York City praising the Russian Revolution, criticizing President Woodrow Wilson’s opposition to communism, and urging workers to launch a general strike in protest.
In an era of fevered intolerance of foreigners and immigrants (not unlike our own) and of fanatical wartime patriotism determined to crush any and all dissent, the defendants were convicted and sent away to prison for their crimes, all with the acquiescence of the United States Supreme Court. So, too, under the same statute, and with the Court’s blessing, was the Socialist Party’s candidate for president of the United States, Eugene Debs, for the crime of giving a public speech expressing admiration for draft resisters.
This was the opening moment of our modern interpretation of the language of the First Amendment that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” enshrined in the Constitution in 1791. Not until that time had the Supreme Court addressed the meaning of these words. From our perspective today, it was an inauspicious beginning.
But Holmes’s vivid depiction, both of human nature and of the need to overcome one’s impulses and instead put one’s faith in the marketplace of ideas, ultimately carried the day. His themes were restated, amplified, and amended by other justices in subsequent periods of national stress and intolerance (notably the McCarthy era of the 1940s and ’50s), until the Court in New York Times Co. v. Sullivan (1964) declared that the central purpose of the First Amendment was to ensure a political system in which discussion of public issues could be “uninhibited, robust, and wide-open.” Over the next decade, the Court further entrenched this interpretation in a series of landmark decisions—from protecting the hateful and inflammatory speeches by participants in a Ku Klux Klan rally (Brandenburg v. Ohio, 1969), to denying the government’s attempt to use “prior restraint” to prevent newspapers from publishing the classified information in the Pentagon Papers (New York Times Co. v. United States, 1971), to safeguarding offensive speech in public places, like that of the young man who walked through a Los Angeles courthouse wearing a jacket that said “Fuck the Draft” (Cohen v. California, 1971). Taken together, this jurisprudence pushed protections of speech and the press far beyond where any nation, then or now, has been willing to venture.
The impact of these unparalleled protections has not been limited to protecting individuals against prosecution by the state. From the seminal period following Sullivan to the present moment, these principles have shaped American norms and discourse in three critical ways.
For one, the First Amendment has become much more than a legal doctrine. It is a core part of the American identity. As much as it is about “rights”—the right of dissent, of sovereignty residing in the citizenry and not in the government, and so on—it is also about the character of the society. To listen to people speak of free speech and press is to hear about fortitude, bravery, magnanimity, self-doubt, and the capacity to reason and respond; to recognize the importance of compromise, and to learn to live with some degree of chaos, uncertainty, and discord; and to value creativity and change over always trying to preserve the status quo.
The second notable development has been that, over time, the interplay between this free speech ethos and the evolution of our constitutional jurisprudence has stretched our capacity for tolerance in both the public and private realms. Though the First Amendment applies only to state action, it has become a touchstone for broader society, influencing norms far beyond its legal reach. Private universities are among the many American institutions that have voluntarily embraced free-speech protections.
This broad reach is critically important, because the impulse toward intolerance that Holmes identified is not limited to censorship of speech. Rather, it is a problem that cuts across all public decision-making, where we are certain to encounter opinions we disagree with—sometimes fervently. That is the logic behind establishing such extraordinary protections under the First Amendment—it creates an exceptional sphere that stretches our capacity for tolerance beyond what feels normal. The goal is not merely to moderate our impulse to quash speech that we find objectionable, but to help us recognize how such intolerance permeates other spheres of human interaction, and to teach us to control it. Learning how to temper such impulses, Holmes understood, is critical to the success of our experiment in self-government.
"The First Amendment has become much more than a legal doctrine. It is a core part of the American identity."
The third notable fact of the last 50 years has been the coalescence of liberals and conservatives, on the courts and in the larger society, around this principle of freedom of speech and press. There are, of course, differences of opinion about some doctrines (the area of campaign finance regulation is the most obvious), but there is—or at least there has been—a remarkable bipartisan consensus in this one area of American public life.
Taking all of this together, one can see why the actions of President Trump represent such a major assault on—and an atavistic reversal of—the modern conception of freedom of speech and press in America. The ethos of tolerance has been replaced by one of intolerance. The press has found itself on the front lines of this assault. Beginning as a presidential candidate, and continuing through his Electoral College victory and inauguration, Donald Trump has systematically sought to undermine the news media’s independence and credibility. The list is long, but his actions include: calling major news outlets “the enemy of the American people”; pointing to press pens at rallies and encouraging supporters to taunt and insult the journalists working inside them; disseminating images that depict violence against the media, such as a cartoon that showed a train labeled “Trump” running over a person whose head was covered with a CNN logo; threatening to change libel laws in order to sue news outlets whose coverage he viewed as unfair; smearing individual reporters with personal insults, as he did in a series of misogynistic tweets targeting an MSNBC anchor; and most recently, labeling journalists as “sick people” who are “trying to take away our history and our heritage.”
Because the First Amendment is about character as much as restraints on state censorship, all of the Trump Administration’s phony allegations about “fake news,” the blatant disregard for facts, and the dissemination of false information provide an alarming abandonment of the foundations of public discourse.
This also explains why President Trump’s response to the violence in Charlottesville—where marches by neo-Nazis, white supremacists, and other hate groups led to violent attacks, including a man who drove a car into a crowd of peaceful counter-protesters, killing an innocent woman and wounding many others—constitutes such a grave threat to the hard-earned, and ultimately fragile, ethos of tolerance. America’s exceptionally strong protections of speech and the press can be sustained only if the public knows that officials—whether judges, mayors, police officers, or most of all presidents—condemn the hateful speech that is being protected.
Fortunately, when it has mattered most, our highest-ranking officials have been steadfast in performing this essential civic duty, demonstrating to the public that the remedy for bad speech is not censorship, but more and better speech. That is what Justice Holmes did in his opinion in the Abrams case, when—even as he defended the right of the defendants to publish pamphlets attacking the president and calling for a general strike—the justice made clear his disdain for the ideology of the authors, whom he called “poor and puny anonymities” driven by a “creed of ignorance and immaturity.” And that is what generations of Supreme Court justices, presidents, and other prominent public officials have done since his time.
Until President Trump. His response to Charlottesville revealed the risk inherent when public officials equivocate in the face of such hateful speech. Their tolerance looks less like an act of magnanimity, and more like an act of tacit approval, giving a veneer of legitimacy to such bigotry. Even more dangerous is when public officials themselves take up the language of intolerance, as Trump did in his campaign rhetoric toward Mexicans and Muslims (among others). In the face of such negligence by officials, citizens may rightly begin to question whether the broad protections contained in the First Amendment could lead to discriminatory acts, policies, or even violence. And they may begin to call for the government to take a more hands-on role in censoring certain kinds of speech.
Unfortunately, all this is happening when there are two other trends in play. The first concerns the new structure of public discourse, in which research suggests the internet and its social media platforms are increasingly isolating individuals from ideas and opinions different from their own. To the extent that this is happening, there is now more fertile ground for intolerance to take hold. Conviction unchallenged increases belief and yields anger. This has been exacerbated by the fact that such platforms make it easier to disseminate hate anonymously, so that while officials can always condemn the hate speech itself, they cannot always condemn its source.
The second troubling development is the resurgence of autocrats throughout the world. The collapse of the Soviet Union, the great strides in development in regions of Asia and Africa, and the Arab Spring all brought hopes that fundamental freedoms would spread to populations previously under the thumb of repressive regimes. Yet for more than a decade, the trend lines have been moving in the wrong direction. According to Freedom House, 2016 marked the lowest point for democracy and global press freedom in 13 years. Journalists around the world are facing growing harassment and violence, with the Committee to Protect Journalists reporting that there are 259 journalists in jail worldwide, the largest number it has ever documented. Technologies designed to enable free expression and communication are being turned into tools of censorship and propaganda, not to mention domestic surveillance, as repressive governments learn from one another’s worst practices.
In the context of this global crackdown, our ability to sustain the exceptionally robust freedoms that we have worked to build is more important than ever. Here, silence speaks volumes. When governments like ours say nothing about the attacks on media (and other serious human rights violations) in Turkey, or Russia, or Egypt, or elsewhere, authoritarian regimes everywhere take notice and are emboldened.
But above all else, the most distressing aspect of the recent period of aggression toward freedom of speech and press in this country is the willing rejection of Holmes’s starting premise: that overcoming the natural and, in his terms, “logical” impulse to persecute others who disagree with or are different from us is the hallmark of a civilized society. When you relish intolerance, you are reversing course on one of the most profound tenets of modern thought. So that when a president stokes the fears and prejudices that exist beneath the surface, he models a different—and divisive—kind of behavior for citizens. In this way, just as our unparalleled protections of speech and the press have over decades laid the foundation for a broader ethos of tolerance, so can the lack of respect for these same rights quickly send us careening backward toward a pathos of intolerance that reaches far beyond speech, infecting all of our decision-making.
It makes little sense to argue whether the threats we feel today are greater or less than we have faced before. In truth, it is too early to say. Censorship and its attitudes have a long history in this country, as do intolerance and fear-mongering. From the infamous Alien and Sedition Acts of 1798, to the Red Scare following World War I, and on to the McCarthy era, episodes of fear and hatred, repression and evil deeds, gave way to the restoration of a belief in the power of reasoned debate. Perhaps we will travel that path once again.