JOHN POWELL When Lincoln gave his Gettysburg Address, he used the phrase, ‘fourscore and seven years ago.’ Afterwards, it was a firestorm because people were pissed, some people, because what Lincoln was doing was criticizing the Constitution. Fourscore and seven years ago was the Declaration of Independence, not the Constitution. And he was saying that the Constitution was a flawed slave document. And he ended by calling for something radically different than essentially a slave Constitution. Here we just had the bloodiest war in U.S. History, is still a war which killed more people than all the other wars combined, and clearly there was an effort to do something radical.
ANDREW MARANTZ The post-Civil War constitution, the one that began with the 13th, 14th and 15th Amendments, that was supposed to make all people born on U.S. Soil citizens, full citizens with the right to vote, the right to participate fully in democracy. According to these amendments, they now enjoyed equal protection under the law.
JOHN POWELL The 14th Amendment is designed to bring the freed slaves and blacks generally into political community. If you’re born in the United States, you are a citizen–full stop.
ANDREW MARANTZ So the problem, according to Powell, is that we never really implemented the post-Civil War constitution fully and the court has never really reckoned with the tensions that can arise when you strengthen one right at the expense of another. So if you consider freedom of speech, you can see how strengthening one person’s speech rights can actually limit someone else’s ability to participate fully in democracy. If someone’s speech terrorizes someone else into silence.
P.E. MOSKOWITZ It’s one thing to talk about all these nice and fluffy concepts of free speech and being able to say whatever you want but, in the day to day reality of the United States, that just doesn’t exist for many people. …
… ANDREW MARANTZ The retort of the free speech absolutist is to say, ‘well, the best answer to speech you don’t like is more speech.’ But in practice, it doesn’t always work. For instance in the 1970s, as more and more women started to enter the workplace, their male co-workers were often hostile or outright intimidating. So again, this is the tension between the 1st and 14th Amendments, between the right to speech and the right to full public participation. Here, the right of the male co-workers to sexually harass the women in their workplace, which is speech after all, and the rights of those women to fully participate in the workplace. In 1986, the Supreme Court made a decisive turn away from a free speech absolutist position in the case of Meritor Savings Bank, FSB v. Vinson. The court declared unanimously that creating a hostile work environment for women was not protected speech.
JOHN POWELL This actually as a harm, it creates a hostile workplace. Women can’t perform. …
… JOHN POWELL That doctrine was later extended to race but it took a long time. Both of those are saying there are some conditions where you cause harm and can’t simply be fixed by more speech.
ANDREW MARANTZ It’s not just a workplace issue. If you’re an African-American intending to vote and people are holding up signs outside your polling place saying, ‘I know where you live.’ Those signs are speech but their speech that is designed to diminish your full participation in our democracy. …
… ANDREW MARANTZ --we live our lives in a lot of private spaces. You know, workplaces, universities even online spaces that are built by private companies. So the First Amendment doesn’t apply there in the same way and Benesch thinks that a lot in those spaces can be achieved by shifting norms rather than shifting laws.
SUSAN BENESCH What is the likelihood that an American politician will use the N-word knowing that the microphone is on? The likelihood is very tiny because that person will then lose that election. The person will be punished not by law but in another way.
BROOKE GLADSTONE The norms that were supposed to keep a troll from winning a presidential election didn’t quite work in 2016, did it? …