Political Animal


September 26, 2012 10:34 AM First Amendment Coalition Not What It Used To Be

By Ed Kilgore

For the most part, domestic criticism of President Obama’s remarks at the United Nations yesterday faulted him for an insufficiently categorical defense of freedom of expression, or at least one that omitted any sympathy for people offended by moronic anti-Islamic videos.

But at Slate Eric Posner offers some uncomfortable reminders of the history of our own country’s commitment to freedom of expression, and of the potentially unstable coalition that supports it today:

The First Amendment earned its sacred status only in the 1960s, and then only among liberals and the left, who cheered when the courts ruled that government could not suppress the speech of dissenters, critics, scandalous artistic types, and even pornographers. Conservatives objected that these rulings helped America’s enemies while undermining public order and morality at home, but their complaints fell on deaf ears.
A totem that is sacred to one religion can become an object of devotion in another, even as the two theologies vest it with different meanings. That is what happened with the First Amendment. In the last few decades, conservatives have discovered in its uncompromising text— “Congress shall make no law … abridging the freedom of speech”—support for their own causes. These include unregulated campaign speech, unregulated commercial speech, and limited government. Most of all, conservatives have invoked the First Amendment to oppose efforts to make everyone, in universities and elsewhere, speak “civilly” about women and minorities.

Bingo. I’m not saying conservatives (this side of Pam Geller) necessarily identify with the specific slurs against Islam contained in Innocence of Muslims, but there is zero question there’s a the-enemy-of-my-enemy-deserves-constitutional-protection dynamic going on, in addition to the irresistible opportunity to claim Barack Obama is soft on Muslims.

We may be at a rare moment in U.S. history when the sort of First Amendment absolutism associated with Justice Hugo Black has majority support among elites across the political spectrum, but that doesn’t mean it came down from Mount Sinai on stone tablets. And it’s also useful to distinguish the legal and constitutional questions from Obama’s plausible argument for the futility of censorship in the age of social media, and for that matter, from the stubborn question of what sort of insecurities lead worshippers of an omnipotent God to fear sacrilege and blasphemy so intensely. But Posner is raising some legitimate questions, not only about the loneliness of the United States in opposing expressions clearly intended to incite violence and even religious war, but about the relatively recent and less-than-sturdy coalition marching under the banner of freedom of speech.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • boatboy_srq on September 26, 2012 10:43 AM:

    First Amendment freedom of speech guarantees, in the GOTea's terms: the right to be uncivil in civil society.

  • rea on September 26, 2012 10:48 AM:

    There is no first amendment issue here at all. The first amendment does not provide protection from the president criticizing your speach as unwise, uncivil, or even evil. Nobody is proposing using the power of government to ban speach.

    (And, there are no first amendment problems with a condition of parole that bans internet use by somebody convicted of using the internet to defraud people.)

  • Frank on September 26, 2012 10:52 AM:

    Posner's article completely misses the point. The First Amendment enjoins only the government and its agents. Shopping malls forbid individuals from posting handbills on their property. So Google could take down the video if they wished. And perhaps they should.

    Likewise, private universities can enact all the codes they wish (see Bob Jones, Liberty, or Antioch) but state universities (Michigan or Berkeley) can't.

    No big deal really.

  • Bill Camarda on September 26, 2012 11:00 AM:

    When I heard what Obama said at the UN about the antidote to hate speech being more speech, the first thing I thought of was: How long will be it before I hear those words used to defend Citizens United? And the second thing I thought of was: There's some new neuroscientific research that suggests people stick with the first idea presented to them, even if they are explicitly told it is false. "More speech" does little to shake them. It could turn out that this old saying, loved by John Stuart Mill and Louis Brandeis, might be just demonstrably, provably wrong.

  • c u n d gulag on September 26, 2012 11:01 AM:

    In America, every imbecile has the right to be as stupid and loud as they want to be.

    The government can't stop that.

    But the government also can't stop my right to criticise you for your stupidity and volume.

    So, if you're going to be stupid, and I can't educate you, at least keep the volume below 10 - and stop creating knobs with new levels.

  • Robert on September 26, 2012 12:09 PM:

    This would all be a nice little discussion on Constitutional protections except that the fringe elements are likely to get a bunch of us sane people in the middle, killed. Between Christians eager for their Apocalypse and the Islamists eager to collect their 77 virgins, we're in a fight here folks! Let this "filmaker" revel in his martyrdom safely behind bars. Make an example of him.

  • smintheus on September 26, 2012 12:32 PM:

    Posner is not raising legitimate questions. He's concern trolling the Constitution, presumably as click-bait in the Slate tradition. Posner is a bad joke, and this is probably the most idiotic thing he's ever written.

  • Ronald on September 26, 2012 12:37 PM:

    Its all crap.
    The Republicans are all first amendmenty right now because it suits their political purposes.
    No reason to look beyond that.
    If the 'shoe was on the other other foot', they would take up whatever belief would sanctify their position.

  • Doug on September 26, 2012 6:55 PM:

    Sorry Mr. Posner, trying to place the blame for the actions of Moslems in foreign countries on OUR Consitution doesn't fly. As correctly noted, the 1st Amendment and its' guarantees only began to take on a greater role in our society during a period of rapid, even extreme, social changes. Perhaps a recognition of the stresses such changes may cause was one reason? And the importance of those seeking change to have their voices heard - even when others were violently opposed to such changes?
    A look at the current state of our MSM shows what happens when one gives in to a tantrum-throwing group or groups and we're supposed to base our foreign policy on THAT?