Given what I’ve seen lately, I’m not sure most of us really understand the concept of free speech enshrined in our Constitution. The First Amendment is essential to the preservation of our liberty, and we’ve treated it with all the respect of a box of Kleenex —use it when convenient and toss it.

Let’s review the historical context first. English common law contained a doctrine called seditious libel that essentially prevented criticism of the state. Many of America’s founders such as James Madison and Thomas Jefferson recognized the potential threat that kind of speech restraint posed to our young republic. In fact, the Alien and Sedition Acts of 1789 would test the mettle of the Bill of Rights only a few years after its adoption. In the modern context, the First Amendment preserves the right of the people to criticize government and public officials without fear of punishment.

As powerful as it is, the First Amendment is not absolute. The U.S. Supreme Court has held that the government may impose speech restrictions on the time, place and manner of speech. Such restrictions must be content-neutral, narrowly drawn, serve a significant government interest and provide for alternative channels of communication. So, no, you don’t have a constitutional right to protest in the middle of the interstate at night.

Here are some critical speech and press issues we ought to address:

  1. You can’t make deeply offensive comments and then use free speech as a justification. The First Amendment might protect your right to say offensive things, but it doesn’t somehow render those comments free from real-world consequences. Speech has powerful consequences. In part, that’s why we protect it. Free speech, press and religious exercise are tremendous tools against government tyranny. Sadly, they’re no less powerful in other contexts. When abused, the right to speak freely cuts like a knife, devastates reputations, corrodes communities and breaches trust. Just because you’re free to say something doesn’t mean you should. Most of us learned that as children; it’s time we remembered it. Milo Yiannopoulos’s shock-jock style of political pestering is a prime example. Government institutions might not be able to prohibit his brand of speech, but his comments cost him a prime spot at the Conservative Political Action Conference (CPAC), a book deal and, ultimately, led to his resignation from Breitbart News.
  2. Public universities aren’t the archbishops of permissible speech. While public universities might not like the content of certain types of speech, the First Amendment still applies to them. They can’t discriminate against the content of religious speech, political speech, or even speech they find generally offensive or harassing. The last category might seem reasonable except for the fact that “offensive” and “harassing” are extremely subjective terms. While students aren’t permitted to break criminal laws, public universities don’t hold the keys to speech content. The Foundation for Individual Rights in Education (FIRE) has a comprehensive database of higher education speech codes worth checking out.
  3. The idea of our political class defining acceptable speech and press is laughable. If you’re looking at President Donald Trump, Senator Bernie Sanders or other politicians as the authority on what news is “real,” you don’t understand the point of the First Amendment. I’m completely fine with politicians and media not liking each other. In fact, we should prefer it. When Trump policy adviser Stephen Miller says, “The powers of the president to protect our country are very substantial and will not be questioned,” every member of the media, conservative or liberal, should endeavor to prove him wrong. Questioning the president and our political class is precisely the reason we’ve enshrined the First Amendment in the Constitution.
  4. The legacy media isn’t really free press when it’s one-sided. Every member of the media I’ve ever met has a perspective. There is no “objective” news, editorial or reporting; I’m not sure there ever has been. That’s not a serious a problem when those perspectives are balanced within a given outlet. Most politicians try to play nice with the press because it’s a bad idea to tangle with companies that count clicks by the millions (the press doesn’t buy as much ink these days). Trump has adopted a different tactic. His voters aren’t reading The Washington Post or The New York Times, and they’re not watching CNN or MSNBC. He’s picking fights with those types of outlets to firmly calcify them as “liberal” and “false” with his base. From there, he’s able to write them off even if they’re telling the truth. Left-of-center media outlets can’t hold Washington’s Republican power structure accountable without improving their internal ideological balance. They either need to get over ingrained biases or become accustomed to preaching to the choir.

The First Amendment protects our rights in wonderful ways, but there’s nothing magic about the paper or ink of the Bill of Rights. Our speech, press and religious freedoms depend on us. It’s time we use them more frequently to advance liberty and less often to tear each other down.


Image by Chris DeRidder and Hans VandenNieuwendijk

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