Book renews appreciation for First Amendment

Published 1:40 pm Friday, March 23, 2018

The First Amendment might be the part of the Bill of Rights that’s easiest to take for granted, so sweeping and so ingrained are its protections.

Or so it seemed to me.

This is, I’ll concede, slightly disappointing on a personal level.

I happen to work in a business that could not exist, at least in its traditional American form, if the Constitution, and a series of Supreme Court rulings, didn’t make it clear that the government must mind its own business and let citizens decide what to write and to say and to read.

Absent the sanction of the First Amendment I might be nothing more than a mouthpiece for the government, a position abhorrent to anyone accustomed to writing without fear of official reprisal or that a bureaucrat will question his choice of verbs.

Yet freedom of expression is such a fundamental right that I have not often pondered the potential challenges to its supremacy, or considered that some trends in modern America directly threaten, at least in theory, the foundations of the First Amendment.

I felt differently after reading Floyd Abrams’ latest book, “The Soul of the First Amendment.”

Abrams is the renowned constitutional scholar and lawyer who has defended the First Amendment in many high-profile cases. These include the New York Times’ 1971 publication of excerpts from the Pentagon Papers — federal documents that detailed the history of America’s involvement in the Vietnam War.

Abrams’ book is relatively short compared with some of his previous works — at 137 pages, it comfortably fits inside the shadow of his 2005 “Speaking Freely,” at 352 pages — but it’s dense with compelling detail.

I was intrigued, for instance, by Abrams’ ruminations about how the First Amendment seems increasingly to run afoul of beliefs held by a significant number of Americans.

A common example involves what’s broadly known as “hate speech.”

“Speech,” Abrams writes, “is sometimes ugly, outrageous, even dangerous. The understandable public response to such speech is often one of disgust, revulsion, and sometimes anger. And support for taking steps to assure that the offending speech does not recur.”

But Abrams argues — and I agree wholeheartedly — that actually taking such steps is antithetical to the First Amendment.

He cites protesters burning the American flag, and the contemptible church whose members displayed anti-homosexual signs at the funerals of American service members killed in action, as examples of speech that is clearly protected by the First Amendment but which a large number of citizens despise and, potentially, would advocate for making illegal.

I was more troubled, though, by Abrams’ dissection of opinions written by Supreme Court justices. These, of course, are of greater concern because the nine justices play such a vital role in determining whether the First Amendment retains its essential solidity.

Abrams discusses an opinion from Justice Stephen Breyer on a case regarding the amount of money an individual can donate to a congressional candidate. Breyer, who wrote the dissent, argues that the First Amendment not only protects a person’s right to engage in political speech, but that it also should promote a “government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.”

These are quite different things.

Abrams contends, and I agree, that Breyer is in effect arguing that one of the purposes of the First Amendment is to ensure the government, and more to the point its laws, reflects the concerns of its citizens, what Breyer refers to as “collective speech.”

The problem with this approach, it seems to me, is that it implies that the collective voice of the crowd is at least as deserving of constitutional protection as is the lone voice of the dissenter — and perhaps even more deserving, if the result is a law that amplifies the crowd but silences the individual.

This strikes me as a repudiation of a core tenet of the First Amendment, which is that its strength lies not in its ability to shelter the popular view but rather in the protective cloak it drapes over the shoulders of the person standing alone on his soapbox, spouting slogans that a majority of listeners might describe (and perhaps accurately) as hateful.

Abrams writes eloquently about why he believes the First Amendment should not be treated as a mechanism to ensure the nation is governed by laws that elevate the desires of a majority over the rights of one person — no matter how attractive the majority’s views.

“The notion that First Amendment interests are served whenever laws genuinely reflect public opinion also seems to overlook the reality that the public too often seeks to suppress speech it disapproves of.”

This is the exact problem.

It requires no great leap of logic to imagine, based on the system Breyer described, that the Supreme Court would ban flag-burning or obnoxious protests near soldiers’ funerals.

Chief Justice John Roberts, in his response to Breyer’s opinion referenced above, makes the trenchant observation that Breyer’s “collective speech” is all but synonymous with the will of the majority.

“The whole point of the First Amendment,” Roberts wrote, “is to afford individuals protection against such infringements. The First Amendment does not protect the government, even when the government purports to act through legislation reflecting collective speech.’ ”

The rest of Abrams’ book is similarly compelling.

I found especially interesting his descriptions of the differences between the First Amendment and how other countries with admirably democratic governments, such as many in Europe, deal with freedom of speech.

Abrams’ apt adjective for those differences is “oceanic.”

Probably the most obvious example of this gulf involves libel laws, which are vastly more deferential to politicians and other public figures in Europe. But Abrams also writes about a more recent type of law, one that forces Google and other internet search engines to delete media reports simply because they might be upsetting to some of the people named in them.

The European approach in these two areas seems so, well, foreign to the First Amendment that I can hardly conceive they would gain any traction here.

But after reading Abrams’ book, and learning about the “collective speech” concept, I’m not as sanguine as I’d like to be.

Jayson Jacoby is editor of the Baker City Herald.

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