What are the arguments against First Amendment fundamentalism?

Factual Questions
1

If this belongs in another forum, please move, but it seemed to me that this is a factual question on first blush.

I was fascinated to learn that there are actually First Amendment fundamentalists — i.e. they believe that ALL laws limiting or suppressing speech, including those against extortion, contempt of court, slander, libel, etc., are unconstitutional by the plain reading of the First Amendment.

What exactly are the legal arguments against this point of view? After all, other amendments get the “it says what it says” all the time, and there is obviously healthy debate there too, but this is the first time I’ve ever encountered it in regard to the First in this particular way.

2

I believe the main argument is that while you may have an unlimited right to do an act by itself, you do not have the right to do the act in the performance of a crime. For example, I’m sure even the most stalwart defender of the Second Amendment won’t argue that the right to carry a firearm implies a right to perform an armed robbery. And the right to freely exercise your religion doesn’t include the right to perform human sacrifices.

The Constitution prohibits the government from making a crime out of carrying a firearm or practicing a religion or speaking. But you can’t use these protected acts as a shield over some other crime. So the government can make it a crime to harm another person and the fact that you used speech to do that harm doesn’t forbid them from doing so. It’s the harm not the speech that is being criminalized.

3

An opposing argument has to do with this:

Historically, states have behaved in repressive ways, including suppressing dissent. The First Amendment, from its very roots, was very much intended to protect dissent and prevent the state from repressing dissent. The Declaration of Independence even pays lips service to the concept that government derives its legitimacy from the consent of the governed, and announces that when that consent is gone, the “People” are within their rights to abolish that government. (It’s generally understood that “consent of the people” is to be taken in some collective sense. Individuals who don’t consent can’t absolve themselves of the laws, “Freemen on the Land” arguments notwithstanding.)

But wait! Every government, this one included, tends to take on a life of its own, and strives toward self-preservation. And the government, generally, controls the levers of power – they have more and bigger guns than the rest of us.

The Supreme Court has generally held, over the years, that certain “compelling interests” are more important than Free Speech, and that usually means the “compelling interest” of “law and order” and the “security of the state”. Thus, inciting riot is illegal. Sedition is illegal. Advocating the overthrow of the United States Government by means of force or violence is illegal.

But aren’t these kinds of acts arguably exactly the kinds of dissent that the Founding Fathers meant to protect? Or was that only when advocating the overthrow of British rule? Instead, we are only allowed to voice dissent in ways that aren’t actually very effective. Any kind of dissent that’s likely to, y’know, actually help overthrow the government is forbidden. What kind of Freedom of Speech is that?

That’s an argument that is typically made in favor of absolute fundamental interpretation of the First Amendment.

(It’s not my intention to actually make that argument, only to present it in answer to the OP. If anyone wants to argue pro or con, then this thread may fit best in Great Debates.)

4

Umm… What? :slight_smile:

5

I think we’d better start with the understanding that the First Amendment was a limitation on the powers of Congress. It didn’t forbid any kind of state laws until 1925, when it was extended through Due Process Clause incorporation. So clearly the Framers anticipated that all kinds of speech—slander, sedition, obscenity, incitement to riot, contempt of court, copyright infringement—could and would be prohibited by the states exactly as they historically had been.

6

Wikipedia has a shit ton of case law that you can read for the Supremes’ opinions on every particular restriction:

It basically boils down to them saying “Oh, you think this limitation on speech is unconstitutional? Lesse… ok, you’re right! Or: Sorry, but we get to decide constitutionality and we think the state is more important in this case, kthxbye.”

More generally, the Constitution is never really used as an unchallengeable document. There are always nuances that the Supreme Court is forever figuring out. The First Amendment is not special in that regard. The entire Constitution is ambiguous.

7

IIRC, you can advocate the overthrow of the government. You just can’t advocate specific illegal acts. “Fight the power, start a petition to abolish congress, campaign for likeminded people to contact you” - OK. Advocate immediate occupation of the capitol and capture and restrain the members of congress - not legal. Extortion, contempt, etc. - involve actions over and above speech. Specific threats imply a willingness to carry out illegal acts… “sticks and stones” and all that.

8

Is this a whoosh?

9

Very broadly speaking, the main argument against fundamentalism flows from the tension between constitutional provisions. If we believe Congress (or a state) has the constitutional right to force people to do / prevent people from doing a certain thing, but we also believe that people in general have the constitutional right to free expression or religious practice, then there’s an incompatibility to the extent that the certain thing involves expression or religion.

Allowing First Amendment concerns to trump in every possible circumstance leads to outcomes we don’t like; therefore, in order to avoid saying the First Amendment has no force at all when it runs contrary to state interests, we set up exceptions.

10

I’m not a constitutional scholar, and I’m generally in favor of an interpretation that is as restrictive of government and as broad for the individual as possible, but that still leaves limits on what it protects. The simple fact remains that if we treat all rights as unlimited, we run into an unstoppable vs. immovable object scenario. So we’re stuck trying to suss out what the essence of the rights being protected are, and trying to find a reasonable boundary where they run into eachother.

So, a simple example, the first amendment allows for the free exercise of religion, but life is also a fundamental right, so obviously religious practices involving human sacrifice are going to conflict if we treat both of these as absolute. You or I may disagree one where the line is drawn, but it has to be drawn.

In this regard, I think the best question to really consider is what does “free practice of religion” “freedom of assembly” “freedom of speech” “freedom of the press” really mean? I think for the most part, they’re pretty clear, but speech is one that can get pretty fuzzy. One of the interpretations I’ve heard that I tend to agree with is the idea that the freedom of speech is intended to protect expression of ideas, so that speech that expresses ideas weakly or not at all are less in need of protection than ones that express a lot. In that regard, the traditional example of yelling “Fire!” in a crowded theater, that person isn’t really expressing an idea, but the ensuing panic can result in property damage and injuries, so the latter wins out and that should be illegal. OTOH, a race purist spouting off various racist things, he’s clearly expressing ideas, and while it can cause some damages to those around him, mostly anger and offense, so in general, the former should probably win out. Unfortunately, most situations aren’t as clear cut, but I think at least the concept of why extortion, libel, slander, etc. need to be crimes can be illuminated from this perspective.

Ultimately, though, I think the fundamentalist view is just too utopian and unpragmatic. In a society, it is just impossible to have every right be completely unlimited. The moment we run into places where we have to limit one right to prevent trampling on another, we start having to prioritize rights, or figure out which implications of those rights are more worth protecting than others.

11

Is there any amendment in the Bill of Rights that’s actually interpreted absolutely? One might hear of Second Amendment fundamentalists, but there are precious few who believe that individuals should be allowed to own nukes.

12

I’d be willing to bet that Wayne LaPierre is one such.

13

The legal argument against Bill of Rights absolutism is that it is the jurisdiction of the Supreme Court to interpret the meaning of the Constitution and its amendments.

They have done so.

14

No, it is very correct. Of course, states have constitutions, too.

But the general idea of what the federal government would be governing was so different at that point in time that it very hard to imagine today. Take, for instance, this commentary from Alexander Hamilton on why no Bill of Rights should be included in the Constitution:

http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html

eta: turns out he was right

15

Section 1 of the 21st Amendment is pretty cut and dry, but it isn’t part of the BoR proper.

I would say in the BoR, 3 and 7 are the top contenders for absolute, with some issues around the* Dairy Queen* doctrine for 7. Apparently, according to Wikipedia, the 3rd amendment has never been at issue in a supreme court case.

16

The thing is you can read the Bill of Rights and find very few specific details. It guarantees general rights without going into specifics. You’ll see terms like excessive and unreasonable and unusual and just being used and it’s up to us to determine where the line is drawn.

The one exception is the Seventh Amendment, which mentions the specific figure of twenty dollars. And that shows the danger of being too specific. Twenty dollars in 1789 was a significant amount - the equivalent of over $500 in 2014 dollars. Nowadays it means people are entitled to a jury trial is they get in a dispute over a meal at Applebee’s.

17

The 7th is one of the few amendments that wasn’t incorporated by Gitlow and progeny, so states are actually free to set different requirements for jury trials. So, unless there is a federal question, you won’t be getting a jury trial on your Applebee’s meal by virtue of the 7th.

18

If in fact you look up “yelling fire! in a crwded theatre…” - that expresion was from a decision by Oliver Wendell Holmes to justify stripping people of their citizenship and deporting them for opposing the US involvement in WWI. He later called it one of his worst decisions.

The usual rule of thumb that I’ve read about was - if the speech was advocating a specific and immediate criminal act - “let’s grab guns and go occupy the Capitol tonight” then it was illegal; if it was mor abstract - “anyone who wants the USA to join WWI should die a horrible death and rot in hell” - then it was legal, merely an expression of an idea, however distasteful. (The tasteful ideas being less in need of protection).

the trouble is when a case reaches trial, whether it’s speech, bearing arms, search or seizure, or equality before the law - the devil is in the details. That’s why there are courts. It’s not like football game, the ball is either over the line or not, there’s a judgement call in many situations - which is why there are judges.

If unlimited free speech were allowed, for example, is it a violation to forbid trespassing if it stops me from delvireing my message? Can I yell an inch from your nose with impunity? Is it restraint if I drown you out? You can spend a lifetime defining the boundaries of any rule; the SCOTUS has spnt several.

19

There is the fact that a literal, absolute reading if the First Amendment clashes with the explicit grant of power to Congress to protect copyrights (Article I, Section 8, Clause 8). The only logical reading is that the First Amendment was not intended to be absolute.

20

Don’t forget about diversity jurisdiction.