Tuesday, April 25, 2017

The Theory of Our Constitution

Back in the 1950s, Bob Hope used to tell this joke.
An American was in the Soviet Union explaining to a Russian citizen how we have the greatest country in the world.
"In America," he said, "anyone can get on a train, go to Washington, go up to the White House, and announce that President Eisenhower is a fool."
The Russian responded."It's no different here. Anyone can get on a train, go to Moscow, go up the the Kremlin, and announce that President Eisenhower is a fool."
* * * * *
We begin at the beginning, with the First Amendment.
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.
Justice Black looked at those words and famously said, "No law means no law."

I suppose he may have said that at one time or another, but the actual quote is from a concurring opinion in Smith v. California. It's worth quoting the whole passage.

I read "no law . . . abridging" to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly "beyond the reach" of federal power to abridge.
Oddly, Floyd Abrams doesn't quote that passage in The Soul of the First Amendment, his new book about the speech and press protections of the First Amendment. 

Nor does he quote Holmes, dissenting in Abrams v. United States:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
But if Abrams doesn't quote Black or Holmes in this brief book, he channels them.

Here, he says, is how it works in the United States under the First Amendment.  At least, how it works now and how it has generally worked since somewhere in the middle of the last century. 

Speech is protected.  The press is protected.

The government doesn't get to tell you what you can say and what you can't.  The government doesn't get to decide who can speak and who can't.  The government can't prevent people from saying offensive things.  It doesn't get to decide that the New York Times can have a voice but Breitbart can't.  

Or the other way around.

It's legal - offensive and hateful and stupid, but legal - to spout racist claptrap and insist that the Holocaust didn't happen and it's too damn bad.

Truth is an absolute defense to defamation.

And corporations?  They really can spend their money on advertising to try and influence elections.

You may not like it.  You may prefer the greater privacy protections in Europe.  You may prefer to prevent speech you consider hateful.  You may think Citizens United was the worst, most wrong-headed decision the Supreme Court ever issued.  

And you may believe with every fiber of your being that Berkeley should prevent Ann Coulter from speaking there and that if Berkeley lets her in it would be proper to fire bomb the auditorium in order to shut her voice down.  Ulrich Baer, you may insist, is right when he claims in the Times that the remedy for bad speech is to stifle it, that it's only those who don't intuitively understand the harm of speech who believe that the remedy for bad speech is more speech.

But that's not our system.  Our system, as Abrams makes clear, is unique in rejecting every one of those things.  With the narrowest of exceptions (and still too many, some of us would argue), Hugo Black was right.  No law means no law.  The "spirit of the First Amendment," he says, is "its anticensorial soul." 

You're free to insist that he's wrong, of course, or that he should be.  You can speak out against free speech and the First Amendment as much as you like.  The First Amendment gives you that right. Maybe it would be better otherwise.  They think so everywhere else in the world, and maybe they're on to something.

Or maybe not.  Floyd Abrams thinks not.  Abrams is 80 years old.  He's been litigating these cases for decades.  And winning them.  

In The Soul of the First Amendment he tells the story of how "no law" came to mean something close to "no law."  He shows how it is that our approach to free speech really is unique.  And he explains, argues, why he thinks it's a good thing.

There are, of course, serious questions.  That you can speak doesn't necessarily mean that you should. In the book's final chapter he explores how "free speech should be responsibly exercised."  That's not a legal question, of course, and "[t]he First Amendment provides no answer to this question.  It never does."

My thanks to Yale University Press for sending me a copy for this review.

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