The First Amendment: Rarely Popular, Always Necessary

Very often the same souls who rhapsodize over free speech are eager to limit it.

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They don’t send out the DEA to bust people for eating deadly poisonous toadstools. That behavior is, ahem, self-limiting. But the federal government does forbid the sale of mushrooms that make people feel like they’re at a rainbow jamboree with the Care Bears, because lawmakers know lots of people would gobble them up.

We have little trouble understanding why we have and enforce laws: The forbidden conduct would otherwise be too attractive. We punish people for everything from toxic waste dumping to breaking the speed limit precisely because lawmakers think too many people otherwise would engage in conduct that’s harmful to society as a whole.

While we understand why we have prohibitions against certain conduct by citizens, we tend to forget that our system forbids certain conduct by the government for precisely the same reason: The harmful misconduct is too attractive to otherwise resist.

Many Americans claim to revere the First Amendment and its hard line against government limitations on the beliefs of our citizens and the expression of those beliefs. Yet very often the same souls who rhapsodize over free speech are eager to limit it.

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  1. Avatar photo
    Jason Gibson

    what a great informative article.

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  2. Avatar photo
    Phil H

    "Try an esteemed conservative federal judge who wants to make it easier for powerful people to sue reporters and news outlets because he doesn’t like the bias he perceives against his viewpoints."

    When you click the link, the reference is to the Sullivan case, a Supreme Court precedent which established a high bar, "actual malice" for libel suits against public figures. The linked article mentions a complaining appeals court judge, but the Sullivan precedent was also panned by Justice Clarence Thomas.

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  3. Avatar photo
    Show Jay Janney the 🚪!

    People like free speech as much as the like free markets, until they have to operate under them. I love to annoy the libertarian faculty by proposing we do away with the required courses they teach, making them all electives.

    There are few limits on free speech I support: banning kiddie porn. Banning yelling "fire" in a crowded theatre (yelling "non assigned seats: in Cincy is still acceptable). Publishing revenge porn. Publishing private information about people for harassment purposes. Playing your stereo at 3am so loud the bodies in the cemetery (and in congress) turn over in protest.

    I actually am okay with incitement. It isn't the speech that is dangerous, but the behavior which follows. I don't actually believe Antifa sheeples lack such critical thinking that they are mindless robots, listening to their master telling them to vandalize stuff.

    I'm okay with telling snotting bureaucrats they are full of snot. I don't care if your dog's vet's cousin's mistress' professor is posting anti-vaccination screeds on the web (I support Darwinian evolution over Lamarckian). I figure if people are stupid enough to believe that s**t, then that's their right.

    As a child, I saw a video that showed a play mocking Socrates while he was in the audience, and he enjoyed it as well. That's my role model (other than drinking tea. Those Hemlock tea bags will get you every time).

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    Rotated Avatar Pic

    Chris Stirewalk, this is a great piece. Thank you for this, I am a new subscriber and pieces like this make the subscription cost worth it.

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  5. Boatbody

    In the name of protecting America from communists and "fellow travelers," McCarthy cancel cultured a lot of government officials, academics and Hollywood types just by outing them and letting the nasties and crazies among us go to work.

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    Man-Eating Cow

    "Here’s a powerful, influential progressive senator who wants to make sure a company can’t “heckle” her in a “snotty” way. Or how about a new member of the executive branch who wonders whether the First Amendment is “obsolete” and thinks the federal government should try to engineer a news media marketplace to its liking? Try an esteemed conservative federal judge who wants to make it easier for powerful people to sue reporters and news outlets because he doesn’t like the bias he perceives against his viewpoints."

    One of these things is not like the others.

    One can question carving out special exemptions for reporters from defamation suits without questioning free speech. Defamation has never been regarded as part of freedom of speech ... at least, not until 1964.

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    1. Avatar photo
      Cornelius O’Brien

      The common law is given short shrift in the debates over originalism and textualism. I'll tell the "esteemed conservative federal judge' that the justice of John Peter Zenger's case, the Declaration fo Independence and the First Amendment compel a rule such as 'actual malice' before a public figure can seek to silence free speech through civil process in these United States.

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        Man-Eating Cow

        The common law held persons strictly liable for defamatory speech, which by definition is false statements that injure a person's reputation. The truthfulness of a statement is an absolute defense against a defamation suit, and was before Sullivan vs. New York Times. So we are not not talking about protecting people who are speaking truth to power. We're talking about requiring people to be sure of their facts before saying nasty things about other people. Which I believe was the right standard, even when the person who nasty things is falsely being said about is a public figure.

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          Cornelius O’Brien

          the common law still holds persons strictly liable for defamatory speech, btw. Truth is a defense. NYTimes v. Sullivan creates a common law tort for matters within the ambit of the first amendment. I haven't followed recent developments int end case law but, the general corrective to bad case law is better case law. I'm comfortable with the common law establishing the right balance between ye olde tort of libel and freedom of the press, and I'm very hostile to a federal judge who wants to throw it away because he's a partisan true believer. It's kinda like Section 230. Do we really need it or is the wisdom of the law enough? Like the Bill of Rights, the very idea that Section 230 needs to exist pre-supposes that government otherwise has the power it purports to restrain. If we really need section 230, or statutes establishing liability for incorrect reporting, we need to get it exactly right or risk f'ing it up for generations.

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          Cornelius O’Brien

          No, you're requiring people to be wrong at their peril and to pull all punches even when convinced they're correct because the consequence of being wrong, despite good faith and due diligence is financial ruin.

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            Man-Eating Cow

            That's right. I'm requiring people to be wrong at their peril, when it involves other people's reputations. If they're going to ruin someone's reputation, they had better be very sure of their facts first. Good faith and due diligence are nebulous concepts compared with the simple common law standard of "did you say something about someone that he can prove in court was false?"

            I do understand why the ruling was made. It was a civil rights case. Civil rights was such a good cause that a lot of folks, including judges, felt that tearing down longstanding and important guardrails was not too high a price to break Jim Crow. I disagree. The court ruled, in effect, that the New York Times could publish false statements about racists who were also public figures if the Times merely thought it likely the statements were true -- rather than doing the hard work of pinning down their facts and being _sure_ they were true.

            In other words, I feel that even someone as nasty as Southern supporters of Jim Crow are nonetheless entitled to the equal protection of the law. Which, after all, was what the battle for civil rights was supposed to be about. The decision turned that on its head.

            I believe that this still provides robust protection of freedom of speech. Opinions are not and have never been considered defamatory, even before Sullivan. Objectively true statements are absolutely protected, and were even before Sullivan. Reporting what someone else has alleged is not defamatory as long as you correctly report the substance of the allegation and who made it -- hence, newspapers report criminal allegations against ordinary citizens, who are not public figures and still enjoy the strict liability protection of traditional common law, all the time.

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      Cornelius O’Brien

      It's not an exemption for reporters. It is an accommodation of the 1st amendment rights of anyone who makes comment on matters of public interest. I get that this looks like judicial legislation, and maybe it is, but the entirety of the common law is judicial legislation by its very definition. In the case of NYTimes v. Sullivan, the Court balanced the common law of defamation (and libel) against the positive and supreme law of the land and found the latter required latitude to avoid having the first amendment right of free speech be dependent on financial resources and the freedom of the press subject to financial pressure in favor of the political and landed elites.

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    3. GregS

      It's not a special carve out for reporters, it's a special carve out against "public persons" who try to sue for defamation.

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    Kevin C. Smith

    This is great. Stirewalt needs a newsletter!! But what would it be called? Hmm....

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    The Bell Tower

    Such a great piece. As usual. It’s no secret why these “elites” always lean towards controlling speech.

    My favorite part of the Jefferson v Adams information war was Mr. James T. Callender, whom Jefferson deployed against Adams but failed to “compensate” when he came looking for patronage. Callender responded by breaking the Sally Hemings story.

    With 200 years of hindsight, I bet Jefferson would give that guy his dumb post office job.

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      Mudskipper

      During the Vietnam war, I recall those "elites" saying things like "America, love it or leave it" and demanding jail sentences for flag burning and for conscientious objectors and other such things.

      Oh, wait...those weren't elites. They were salt-of-the-earth True Americans™.

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    2. Boatbody

      Think back through WWI and WWII and even the civil war. The elites have always wanted to control speech. During wartime, it is easier to do because you can call it patriotism. But in WWII there were a lot of beatings of German Americans who uttered any word of German, out loud.

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  9. Dylan Paul

    The Alien and Sedition Acts are another illustration of what an arguably noble concept becomes when State-enforced

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  10. Adam Ewy

    No. No. No.

    We have to differentiate between legal and moral. Prohibition turns out to be more harmful than the action that is prohibited.

    Many people, myself included, are not waiting on drugs to become legal to do drugs. I do not need a speed limit to incentivize safe driving. I drive safely because of my respect for life, and I do not wish to spend unnecessarily on tickets or repairs.

    To enjoy a robust 1st Amendment culture, We must cultivate a respect for the sovereignty of the individual over a dependency on “the law.”

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      Jason Gibson

      I have sympathy for what you are saying here. Adam Smith in his writing on the moral sentiments would agree with you I think. However there are those whose sentiments are not up to snuff. And in that case the law becomes "the educator" of the citizen and puts down a marker of where the boundary is located.

      I would go on to argue that society is better when there are other institutions that set those markers. For example women didn't go into bars before prohibition but they did go into speakeasies. After prohibition they went into bars. the law is only needed if the populace can't govern it's own vices.

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      Show Jay Janney the 🚪!

      Go on and write me up for 125
      Post my face, wanted dead or alive
      Take my license, all that jive
      I can't drive 55! (with apologies to Sammy Hagar)

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      Theirn Scott

      I'm stuck on the "I do not need a speed limit to incentivize safe driving" but " I do not wish to spend unnecessarily on tickets", part.

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        Mudskipper

        LOL

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      Pat Riot

      If you removed speeding tickets and drunk-driving laws then lots and lots of people--innocent and diligent people--would die.

      One of my favorite analogies during the pandemic about the mask deniers was that not wearing a mask is like peeing in only your part of the pool.

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      1. Boatbody

        did you know speed limits were not even part of our laws until recently. You still can't find them on the dirt roads in our part of the prairie. Apparently only on asphalt do we need government regulation.

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        1. GregS

          Dirt roads don't need a speed limit- dirt roads *are* a speed limit.

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          1. Boatbody

            Nope. The tractors pulling floppy disks are the speed limit.

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          Pat Riot

          Because that's where there are more cars.

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            Mudskipper

            And where cars can go really fast.

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          2. Boatbody

            We prefer pickups.

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    5. Richard Kennedy

      Guardrails, man, guardrails. Think of racing. One of the reasons why the famed Panamericana and Mille Miglia almost week long races were abolished was because of the consistent damage to humans, property, animals that were property or wild, and the contestants and their cars as well. There was no room for guardrails on many of the roads. Same with LeMans. The famed Mulholland Straight now has a chicane, or kink, in the middle ((with guards and cones and a runoff) because the turn at the end was killing drivers and others once speeds got over 200 mph by many cars, but not all. Different classes of cars have been a hallmark of that race, as were the others mentioned. Some sort of limit on the faster classes saved that character of the race. Now, some of the slower classes can reach close to 200 mph on the Straight without the chicane.

      Likewise with many of the laws you mention. The question is not about guardrails, but their nature and quantity, such that all can flourish as opposed to overwhelming restriction. That’s yer fight right there.

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      CVS

      " I do not need a speed limit to incentivize safe driving. I drive safely because of my respect for life, and I do not wish to spend unnecessarily on tickets or repairs."

      I'm sorry, this is ridiculous..

      No, YOU might not need it. But if you were speeding in the middle of the Utah Salt Flats, nobody would give a crap. You can be safe or not. Only the most nanny-staters of us would bother to stop you from invoking Darwin's laws.

      The issue is, what OTHER people are going to do. i.e. You obey the speed limit, that's good. What about the other jackass that's going to go 110mph and smash into you?

      He'll survive more often then you will. Your respect for the law is meaningless. The entire POINT of the law is to control as many holdouts as we can.

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        C C Writer

        Let me introduce a relevant small-l libertarian or classical liberal concept: The point, the important distinction according to which the legitimacy of laws must be evaluated, is whether or not your actions are harming or endangering other people. There are things people can do that hurt nobody else (and issues of the impact on that individual are dealt with in the moral/social/psychological/medical arena). There are things people can do that may be gratifying to them but involve or risk significant injury to others (and they are dealt with in the legal arena). If you understand that one of the primary purposes of government is to hold a monopoly on legitimate force for the purpose of preventing citizens from using force (purposely or negligently) on other citizens, then it's an appropriate governmental function to raise the stakes on the kinds of actions that do harm to others. While there are grey areas, this perspective brings clarity and logic to most questions about what the law should prohibit.

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          CVS

          Uhh...that's precisely my point.

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          1. Adam Ewy

            I am not going to lose sleep over speed limits. It’s a small example. We would likely have speed limits if all roads were private.

            My broad point is that laws have little influence over behavior.

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            C C Writer

            I understand that. I was just explaining the principle by which substance use and speeding on the salt flats are distinguished from speeding on city streets or operating a vehicle under the influence.

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      2. Adam Ewy

        You mean the guy that doesn’t care what the speed limit says?

        Laws work really well for people that do not need them.

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          CVS

          Yes, actually, it does. It works BRILLIANTLY. Provided he knows he'll get a big ticket/lose his drivers license/go to jail.

          That's the point of law.

          No, it doesn't work 100% of the time. But it works an awful lot of the time. Hell, *I'd* go faster a good chunk of the time if I didn't think I'd get a ticket and relatively speaking I respect the law.

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          1. Adam Ewy

            Are we to believe all that stands between humanity and a purge style murder spree is the law?

            We have a hard time differentiating between vices and crimes, and as a result we have a justice system that perverts laws to support unjust ends.

            I recommend this. Old and long, but good.

            https://mises.org/library/vices-are-not-crimes

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    7. Dylan Paul

      I don't believe for a second that anyone but the kookiest or the oldest of folks doesn't require the incentive of a speed limit.

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      1. Adam Ewy

        Voluntary, human action is based on incentives to maximize happiness and reduce suffering. Those incentives trump following the law.

        Laws are fine so long as they support just ends, but they often do not (progressive income tax, military conscription, abortion, slavery, Jim Crow, etc.)

        A just and virtuous society will depend upon each citizens respect for their fellow citizens happiness/lack of suffering instead of a blind dependence on the law.

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          Mudskipper

          "A just and virtuous society will depend upon each citizens respect for their fellow citizens happiness/lack of suffering instead of a blind dependence on the law."

          Yes, you are right. And when you find me a society entirely made up of just and virtuous people, let me know. I think I heard a rumor of a place called Eden, but there was something about an apple....

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          CVS

          Incentives ARE the law, much of the time.

          i.e. you break the law, you get a ticket/lose your license/go to jail.

          The law changes the incentive structure.

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        CVS

        Correct.

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