The First Amendment: Rarely Popular, Always Necessary
Very often the same souls who rhapsodize over free speech are eager to limit it.
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.
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.
At the state and federal level, we’re witnessing a full-spectrum attack on free expression (not to mention property rights). Progressives and nationalists aren’t mounting this assault at risk to their own careers. Indeed, many are finding lots of political advantage in trying to suppress speech they and their constituents do not like.
Though Thomas Jefferson is most assuredly out of favor with the modern progressives who are his heirs, in 1787 he identified the same problem with American politics many in today’s Democratic Party now decry. Jefferson blamed what today is called “fake news” for the Constitution’s version of the presidency that he believed was inclined toward monarchy.
“The British ministry have so long hired their gazetteers to repeat and model into every form lies about our being in anarchy, that the world has at length believed them,” Jefferson wrote to John Adams’ son-in-law from Paris. “The English nation has believed them, the ministers themselves have come to believe them, and what is more wonderful, we have believed them ourselves.”
He was calling Adams and the other Federalists a bunch of dupes who created an undemocratic presidency because of the “impudent and persevering lying” of pro-British journalists. We could say the same thing today about American outlets and politicians who echo Chinese talking points about the prevalence of racism in our country or Russian propaganda about the legitimacy of the 2020 elections.
Unlike many in his party today, though, Jefferson didn’t suggest controlling the information Americans could receive. In fact, he said misinformation was an inevitable consequence of life in a free society. “The people can not be all, and always, well informed,” he wrote. “The part which is wrong will be discontented in proportion to the importance of the facts they misconceive.”
Ain’t that the truth …
Racism is tolerated less now than it has been at any point in American history, but if you misconceive that important fact, you are likely to be quite discontented. The same goes for election fraud. If you are ignorant of the truth that American elections now are far more secure than in even the fairly recent past you might believe Boss Tweed and Big Bill Thompson were still stuffing ballot boxes. You might even storm the Capitol.
Jefferson’s remedy, however, would please few Americans today. He brushed off Shay’s Rebellion, a tax revolt in Western Massachusetts the year before that left nine dead, as no big deal. “Let them take arms,” he wrote. “The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two?” The alternative, he said, was worse. “If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty.”
The anti-police riots of last year and the pro-Trump attack on the Capitol would have been to circa-1787 Jefferson what we now call—forgive me—“teachable moments.” The perpetrators were misinformed, but according to their misshapen views of the world, their violent actions were justified. When the river of misinformation overruns its banks, Jefferson’s advice was not to build the levees higher but to address its source.
Adams did not agree. As president in 1798, he signed the Alien and Sedition Acts partly to crack down on Bonapartist propaganda from France during a period of high tensions between the former allies. It just so happened that what the federal government deemed “false statements” against it were very often claims and criticisms from newspapers supportive of his old rival, Jefferson, who was preparing to take on his foe in the election of 1800. Limiting speech, he argued, was necessary for preserving domestic tranquility. Fortunately, the rules were far less popular in practice than in concept and were allowed to expire by 1801.
After defeating Adams, Jefferson learned to love the powers of the presidency he had as a younger man disdained—and the awful failures and excesses of the French revolution had also taught him about the practical considerations of armed revolts and foreign propaganda. That “tree of liberty must be refreshed from time to time with the blood of patriots and tyrants” jazz didn’t sound as great when he was worried about Aaron Burr cooking up an insurrection with the help of the Spanish.
We don’t have a First Amendment to protect free speech because people love the freedom, but because limiting free expression will always be attractive to those in power—and often to their political advantage.