Democracy ForumEssaysFeatureLiberal Democracy in Question

On Free Speech

An appeal to leverage the 1st Amendment as it stands

Don’t shut it down.

Don’t look to qualify what is meant and protected by the right to free speech by making an exception to the rule for hate speech.

Don’t move to make hate speech illegal.

Take a step back and let your cooler head prevail.

The First Amendment was written to protect minority speech. It was drafted to guarantee, to the extent that any amendment can, robust debate that ensures minority speech equal footing (or equal voice and say).

We cannot improve on that with what we now call the “asymmetry of power.” The amendment is premised on the realities of the asymmetry of power and addresses that reality head-on.

If you push to make hate speech illegal, you will hand them the noose with which they will hang you in your own backyard.

The Nazis who are protesting see themselves as the victims, the minority who has been silenced. Never mind whether or not this is objectively true, because it does not matter.

Think only of how close we came on the left to making the same claim for them that they are making now for themselves? How many well-intentioned intellectuals, journalists and educated folks lined up after Donald Trump won to argue that the white working class has been left to rot, so their anger is justifiable? We only stop defending the anger when it is expressed as anti-Semitism, racism, homophobia and sexism.

While we busied ourselves with this line of argumentation, we did not spend enough time drawing the connection between the disenfranchisement of the white working class and the reality that Hitler gave a similar group a purpose. He offered unemployed white men a uniform and a connection to blood and soil and we all know how that ended.

Think about the highest official in charge of legal matters right now. Not Donald Trump. Jeff Sessions, who is an avowed racist, who was too racist for Ronald Reagan, a man who ran on the imaginary trope of the Welfare Queen stealing the spoils from those (the white working class) who earned the spoils, or at least their fair share of the pie.

Sessions is a well-respected senator among Republicans because they are not, en masse, much different from him. Not only do they support a racist President, in deed if not in word, they are spearheading an open crusade against gay folks, trans folks and women.

These are the people in charge and they may be deplorable but they are skilled politicians and many of them are excellent prosecutors.

They would love the chance to call your (our) speech hateful. And they will be able to do it because there is no objective definition of hate and a lot of law is still steeped in prejudice.

If we open the First Amendment to debate in a righteous effort to silence the hate, we open it to reinterpretation along other lines as well.

As of now, the First Amendment excludes two forms of speech: obscenity and slander (or libel— the elucidation of the difference between the terms and their complicated legal history are beyond the scope of this brief essay, so I try only to capture the essence of, or spirit behind, the law and the amendment). I will return to the first (obscenity), and for now address the second (libel and slander).

Trump is not protected by the First Amendment against slander because he holds the highest office in the country if not in the world — again, the writers of the amendment knew what they were doing — and if Trump were to enjoy legal protection from slander, we would all be in jail.

We have trotted out paper maché Trumps with a tiny penis and makeshift statues of Trump as a rat; we have ruthlessly attacked his character and openly questioned his sanity, and he has no legal protection against such creative and intelligent resistance.

Don’t open the door to give him that protection because he has the best lawyers money can buy and that means the best lawyers period, and he will use them to shut us up.

Barack Obama could have sued Trump for libel when Trump made the groundless claim that Obama had tapped his phones during the 2016 campaign. I don’t know why he did not sue but if I have to take an educated guess, I assume that Obama knew it would result in a distracting spectacle and open up the hotly debated question of who is and who is not protected under current libel (and slander) statutes.

The only form of speech that remains unprotected under the First Amendment open to serious reconsideration is obscenity. Of course, obscenity is in the eye of the beholder, and the inclusion of obscenity in that which is excluded from free speech has resulted in the horrific use of the amendment to silence and shame gay and trans folks and it has provided a legal tool to argue against feminist protests of the widely circulated sexual abuse of women.

The obscenity exemption from the First Amendment has to go, at some point, but now is not the time to open the question.

So if and when you feel powerless as a minority or as a woman, remember you have the right, you have the protection of the law, to talk back or to talk back by refusing to engage. You can tell your favorite Nazi “Go fuck yourself!”; you can call a racist a racist and whatever else you want to call him or her; you can call a misogynist by name and you can tell the nearest homophobe that you think they really fear their own same-sex desire.

Use the amendment as you like. It is not nothing that you can say whatever you want whenever you want and to whomever you want; it is really everything. So don’t give it away, don’t offer it up because you (we) are momentarily (and understandably) losing our cool.

Lisa Aslanian

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