# What are the arguments against First Amendment fundamentalism? **URL:** \ **Category:** Factual Questions\ **Created:** [April 5, 2014, 11:23pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441 "2014-04-05T23:23:13Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [April 5, 2014, 11:23pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/1 "2014-04-05T23:23:13Z")
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. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 5, 2014, 11:44pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/2 "2014-04-05T23:44:06Z")
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. ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [April 6, 2014, 1:05am UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/3 "2014-04-06T01:05:17Z")
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.) ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [April 6, 2014, 1:44am UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/4 "2014-04-06T01:44:05Z")
> [@Senegoid](#): > > An opposing argument has to do with this: > > … > > That’s an argument that is typically made in favor of absolute fundamental interpretation of the First Amendment. Umm… What? 🙂 ---
**Author:** ![Mr\_Downtown](https://avatars.discourse-cdn.com/v4/letter/m/8e8cbc/32.png) [@Mr\_Downtown](https://boards.straightdope.com/u/Mr_Downtown)\ **Post date:** [April 6, 2014, 4:10am UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/5 "2014-04-06T04:10:42Z")
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. ---
**Author:** ![Reply](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/reply/32/15952_2.png) [@Reply](https://boards.straightdope.com/u/Reply)\ **Post date:** [April 6, 2014, 4:59am UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/6 "2014-04-06T04:59:16Z")
> [@Leaper](#): > > 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. Wikipedia has a shit ton of case law that you can read for the Supremes’ opinions on every particular restriction: > **[United States free speech exceptions](https://en.wikipedia.org/wiki/United_States_free_speech_exceptions)** > > In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech. > Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that... 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. > **[Judicial interpretation](https://en.wikipedia.org/wiki/Constitutional_interpretation)** > > Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review. > For example, the United States Supreme Court has decided such topics as the legality of slavery as in... ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [April 7, 2014, 4:08pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/7 "2014-04-07T16:08:11Z")
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. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [April 7, 2014, 4:34pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/8 "2014-04-07T16:34:54Z")
> [@Mr\_Downtown](#): > > 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. Is this a whoosh? ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [April 7, 2014, 4:48pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/9 "2014-04-07T16:48:23Z")
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. ---
**Author:** ![Blaster\_Master](https://avatars.discourse-cdn.com/v4/letter/b/cab0a1/32.png) [@Blaster\_Master](https://boards.straightdope.com/u/Blaster_Master)\ **Post date:** [April 7, 2014, 5:45pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/10 "2014-04-07T17:45:49Z")
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. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [April 7, 2014, 7:53pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/11 "2014-04-07T19:53:09Z")
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. ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [April 7, 2014, 8:13pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/12 "2014-04-07T20:13:14Z")
> [@Chronos](#): > > 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.** I’d be willing to bet that Wayne LaPierre is one such. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [April 7, 2014, 9:23pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/13 "2014-04-07T21:23:03Z")
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. ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [April 7, 2014, 10:01pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/14 "2014-04-07T22:01:06Z")
> [@RealityChuck](#): > > Is this a whoosh? 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: > [@](#): > > I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. [http://press-pubs.uchicago.edu/founders/documents/bill\_of\_rightss7.html](http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html) eta: turns out he was right ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [April 7, 2014, 10:07pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/15 "2014-04-07T22:07:13Z")
> [@Chronos](#): > > 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. 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. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 7, 2014, 10:29pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/16 "2014-04-07T22:29:35Z")
> [@Chronos](#): > > 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. 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. ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [April 8, 2014, 2:17pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/17 "2014-04-08T14:17:44Z")
> [@Little\_Nemo](#): > > 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. 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. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [April 8, 2014, 2:31pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/18 "2014-04-08T14:31:24Z")
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. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 8, 2014, 3:04pm UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/19 "2014-04-08T15:04:13Z")
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. ---
**Author:** ![Mr\_Downtown](https://avatars.discourse-cdn.com/v4/letter/m/8e8cbc/32.png) [@Mr\_Downtown](https://boards.straightdope.com/u/Mr_Downtown)\ **Post date:** [April 9, 2014, 4:00am UTC](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441/20 "2014-04-09T04:00:12Z")
> [@Darth\_Panda](#): > > unless there is a federal question, you won’t be getting a jury trial on your Applebee’s meal by virtue of the 7th. Don’t forget about diversity jurisdiction. [Next page](https://boards.straightdope.com/t/what-are-the-arguments-against-first-amendment-fundamentalism/685441.md?page=2)