Saturday, February 11, 2023
Rethinking First Amendment Jurisprudence
The First Amendment to the United States Constitution protects the rights to freedom of speech and religion, which are essential to liberty and an informed citizenry. Indeed, the original purpose of the First Amendment was, among other things, to create a “marketplace of ideas” in which diverse opinions on matters of public concern, however unpopular, distasteful, or offensive, are rightfully protected. And the United States Supreme Court’s First Amendment jurisprudence reflects steadfast adherence to these principles, with the Court holding in numerous cases that a robust and expansive right to free speech is critical to ensuring liberty, autonomy, and a society where diverse viewpoints inform citizens’ views on various political and social issues.
But shouldn’t there be a limit?
Aren’t there some types of expression that are so vile, so valueless, and so vituperative that neither the Constitution nor the courts should afford them protection?
The answer to both questions is yes.
Think about it:
- Should people be permitted to hurl racist slurs at minorities? No.
- Should they be allowed to stand outside the funeral of a deceased gay soldier who died in the Iraq War with signs that say, “God Hates Fags?” and “Thank God for 9/11?” No.
- Should a newspaper have the freedom to publish a satirical depiction of a famous evangelical minister having sex with his mother in an outhouse? No.
- Should people be allowed to depict horrific acts of animal cruelty? No.
- Should wealthy individuals be permitted to donate millions to political candidates knowing that such donations will give them unfair influence in and access to the political process? No.
- Should Nazi groups and the KKK be allowed to march on Main Street spewing antisemitism and racism? No.
- Should people be allowed to wear t-shirts with a symbol of a Nazi swastika? No.
- Should pro-life groups be permitted to march with signs depicting dismembered fetuses? No.
Such speech should be banned everywhere and in any circumstance for three reasons.
First, speech such as that mentioned above has absolutely no value. It contributes nothing whatsoever to the “marketplace of ideas,” an informed citizenry, or a functioning democracy. And neither the text nor the original purpose of the First Amendment supports allowing individuals to express utterly valueless speech when it is expressed for the purpose of demeaning or traumatizing others, including vulnerable and marginalized groups.
Second, such speech causes substantial and often lasting harm. Make no mistake: speech can and does traumatize individuals, often causing severe emotional distress and other psychological injuries. Think about it: how would you feel if, as a minority, someone hurled a racist slur at you? How would you feel, as a person of Jewish faith whose great-grandparents died in the Holocaust, if you had to tolerate people marching with Nazi swastikas? How would you feel if, as a homosexual, someone called you a fag? To ask the question is to know the answer. Such speech serves no public purpose whatsoever.
This is not to say, of course, that offensive, distasteful, and unpopular speech should be restricted in any manner whatsoever. Indeed, such speech may and often does cause emotional distress. It is to say, however, that there is a limit. When speech has no value whatsoever and is intended to – and does – traumatize others, it should enable individuals to sue for the resulting emotional harm.
Some may argue that limiting such speech will empower the government to enact content-based restrictions on speech with which it disagrees. This slippery slope argument is without merit. First, the Supreme Court has already recognized limits on free speech, such as in Miller v. California, when it held that obscene speech that appeals to sexual interests receives no First Amendment protection, and in Brandenburg v. Ohio, where the Court held that words intended to incite violence lacked First Amendment protection. Second, the solution to this problem is obvious: enact a statute that delineates with specificity the precise words or expressions that are prohibited. In so doing, the limits on speech – which admittedly should be narrow – will be unambiguous. In Germany, for example, it is a crime to publicly deny the Holocaust – and for good reason.
Additionally, some may argue that the standards used to determine what speech should be limited will be invariably subjective and will thus lead to arbitrary and unconstitutional restrictions on speech. But this argument misses the constitutional mark. Many, if not most, constitutional provisions require subjective value judgments, such as whether a punishment is cruel and unusual under the Eighth Amendment, whether a search is unreasonable under the Fourth Amendment, and whether counsel is ineffective under the Sixth Amendment. Moreover, banning the type of speech mentioned above is hardly subjective. Any reasonable person with a conscience would agree that this speech has no value and inflicts severe injury on its targets.
The United States Supreme Court, however, is reticent to support any limits on speech other than sexual obscenity and fighting words. In Hustler Magazine, Inc. v. Falwell, for example, the Court held that the First Amendment protected a depiction of the Reverend Jerry Falwell having sex with his mother in an outhouse. In Snyder v. Phelps, the Court held that the First Amendment protected members of the Westboro Baptist Church who held signs stating “God Hates Fags” and “Thank God for 9/11” outside the funeral of a deceased military veteran.
These decisions were wrong.
The notion of allowing individuals to express offensive, distasteful, and unpopular speech should not preclude reasonable limits on valueless speech that cause severe emotional harm. It’s one thing, for example, to say that homosexuality is a sin. It’s quite another to call someone a fag. It’s one thing to say that abortion is immoral. It’s quite another to shove pictures of dismembered fetuses in the faces of women trying to access abortion services. In each example, the former should be protected, and the latter should not. The distinction is predicated on value and injury.
Ultimately, a society that values liberty, autonomy, and democracy need not tolerate valueless speech that contributes nothing to public discourse, and that marginalizes others, causes others to commit suicide, or humiliates others in a manner that causes lasting harm.
If you disagree, let’s see how you feel when, if you are gay, another person shoves a sign in your face that says, “God Hates Fags” or, if you are Jewish, a person shoves a sign in your face that says, “The Holocaust Never Happened.” You know exactly how you’d feel. That is the point – and the problem. And it’s a problem that needs to be solved – now.
 413 U.S. 15 (1973); 395 U.S. 444 (1969).
 485 U.S. 46 (1988).
 562 U.S. 443 (2011).