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The First Amendment: It's Not Just the Law

Shut up! I don’t like what you’re saying!

Increasingly, this is the approach Americans — Americans! — are taking to deal with speech they don’t like. Whether this involves the hateful speech of would-be dictators, the words of electronic schoolyard bullies, or just folks with whom we disagree on government policy, the New American Way is to stop them from talking. Extra points if we can protect our own speech while squelching theirs.

Freedom of speech, though, is more than just the law. It’s a good idea. It’s a good idea because it’s a necessary component for a vibrant society.

Perhaps this is one reason it was the First Amendment to the United States Constitution and the one most Americans can remember as actually being part of that Constitution. Even though most Americans don’t know a damn thing about what the Constitution really does, means, or stands for, they know “freedom of speech is in the Constitution!”

But fascism is the very antithesis of a vibrant society. Perhaps this is also why when fascism rears its ugly head, controlling speech is the first thing to suffer. First, you try to “work with” those people speaking in ways you don’t like:

It seemed as though a large number of people were zealous to work with and through the editors these days, thought Doremus. (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 165, originally published in 1935.)

But if Fox News isn’t enough, or if people insist on routing speech through non-Fox venues, or if you’re just impatient, then you take another approach.

The mob acted then, swift and together, on no more of an incitement than an unknown M.M.’s shout: “Ought to burn the place, lynch the whole bunch of traitors!” They were running across the street, into the front office. He could hear a sound of smashing, and his fright was gone in protective fury. He galloped down the wide stairs, and from five steps above the front office looked on the mob, equipped with axes and brush hooks grabbed from in front of Pridewell’s near-by hardware store, slashing at the counter facing the front door, breaking the glass case….

Shad roared on: We’re not going to bust up this place. Jessup sure deserves a lynching, but we got orders from Hanover — the Corpos are going to take over this [newspaper] plant and use it. (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 183, originally published in 1935.)

Restricting speech is increasingly the choice of Americans, whether officials or not, because reasoning with people is more difficult.

It became easier to answer malcontents with a cuff from a Minute Man than by repetitious statements from Washington. (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 157, originally published in 1935.)

And it’s easier to suspend children for bullying others, whether online or in person, than to socialize them.

The case that caused me to write this article shows that the government barely understands why this is wrong. The students involved show every sign of being at risk to become future criminals. But then, what insecure, sniping group of bullies, cyber or otherwise, doesn’t?

The judge forced to rule on the lawsuit filed after the school was sued for expelling one of them got that much.

“The fear that students would ‘gossip’ or ‘pass notes’ in class simply does not rise to the level of a substantial disruption,” he wrote. (Victoria Kim, “For students, a right to be mean online?” (December 13, 2009) The Los Angeles Times.)

The court appears to have missed the mark, though, in another aspect of the case:

Judge Wilson ruled that school officials had the authority to investigate the matter because the student told several of her classmates to watch the video, and it was foreseeable the video, or talk of it, would quickly make its way to the campus of Beverly Vista School. The video was “designed in such a manner to reach many persons at once,” making it different from earlier cases involving school newspapers or a violent drawing, he found. (Kims, supra.)

So the number of people potentially hearing the speech matters? That’s not a very good standard to use! Who decides the number? Do we need to rewrite the First Amendment?

Congress shall make no law…abridging the freedom of speech, or of the press…unless the speakers and writers become too popular and too many people hear or read what they have to say….

The way to combat speech is with speech. To beat out bad ideas, teach better ideas. Yes, educating people is harder — although it is normally easier to educate children than adults. And I’m not talking about brainwashing them with any particular political doctrine, either. It can be as simple as teaching empathy and understanding. These skills are necessary precursors to any healthy society.

Freedom of speech, as I said above, is a necessary precursor to a vibrantsociety, but it works — when it works — because we know how to be empathetic, we know how to understand, and we know how to reason with one another.

And it would do all of us well to realize that the freedom to speak is perfectly complemented by a willingness to listen. For if no one is listening, then what really does it matter if we’re free to speak?

Whenever I’m irritated by what others say, I have a “slogan” I repeat to myself:

The First Amendment: It’s not just the Law; it’s a Great Idea.

Feel free to adopt it for yourself.

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