We complain constantly about how vulgar, hateful, and polarized our public discourse has become. But most of us are unaware of one reason why current standards are so low: the misinterpretation of the Constitution’s First Amendment.
The First Amendment prohibits laws “abridging the freedom of speech, or of the press.” Those who adopted the amendment understood it to mean that government is absolutely barred from restricting expression within the known scope of “the freedom of speech” or within the known scope of “the freedom of the press.”
However, the amendment allowed officials to prohibit or regulate other expression, if they otherwise have constitutional power to do so.
But the free speech and free press rules that courts now use are largely unrelated to this meaning. During the 20th century, judges created an entirely new set of rules. They based them on how the judges balanced what they perceived as social benefits and social costs.
But, of course, judges have no special expertise in identifying or balancing social benefits and social losses. Not surprisingly, therefore, their rules turned out to be flawed. One of their flaws is that they pushed down the standards for public discourse.
Here are some examples, with their effects:
Example No. 1: Lawsuits for defamation of character (slander and libel) traditionally allowed victims of smears to disprove false charges and vindicate their good names in court. They served as a sensible alternative to fighting duels. And by discouraging smears, they helped raise the general level of public discussion.
But during the 20th century, the Supreme Court curbed the right of “public figures” to sue for defamation. Now, smear-mongers can make baseless charges (“My opponent is a racist!”) knowing the victims usually cannot correct the record judicially. I experienced this myself when I was a candidate for governor of Montana: Unscrupulous detractors spread the rumor that I was a draft-dodger when, in fact, I had volunteered for military service. Modern Supreme Court rules denied me a judicial remedy.
Under the real meaning of the First Amendment, defamation is neither freedom of speech nor freedom of the press. Properly understood, the First Amendment allows public figures free access to the courts to restore their good names. Without such access, smear-mongers can act with impunity.
In part, this is because, although the Supreme Court denies First Amendment protection to “obscene” expression, it finds very few things to be “obscene.”
Just to clarify: If the courts honored the First Amendment’s original meaning, verbal pornographic material for adults would still be protected. Censors probably couldn’t ban “Lady Chatterley’s Lover.”
However, officials could prohibit what the founding generation called “lewd displays.” They could bar live or filmed sexual or simulated sexual performances, and probably violent displays as well. This would end the “race to the bottom,” whereby entertainers and others vie with each other to see who can inflict the most social damage.
Example No. 4: The 20th-century Supreme Court ruled that commercial messages, such as advertising, receive less constitutional protection than political speech. This may enable politicians and regulators to punish companies that advertise in ways displeasing to politicians and regulators.
But as originally understood, freedom of speech and press covers respectful public discourse on almost any topic—not just political, but also commercial, scientific, philosophical, and artistic. The First Amendment doesn’t subordinate commercial messages to political messages.
Example No. 5: The original meaning of the First Amendment protects good-faith theological discussion and disagreements. By way of illustration, it protects your right to argue against a religion by saying, “I don’t think its founder was a real prophet for the following reasons ... ” But it doesn’t protect “blasphemous” speech. This means officials may curb insults hurled merely to hurt or enrage. Hence a claim that “that religion’s founder was the lying son of a whore” falls outside the First Amendment, as originally understood.
Would the First Amendment’s original understanding be appropriate for the United States today? Perhaps not entirely. But some of the original rules continue to make sense. You can see this by reading founding-era newspapers and other media. The debate is robust and free-wheeling, but conducted at a generally higher standard than prevails now.
