One can only imagine the attack ads that would today be marshaled against the Bill of Rights. Posited in 2015, the First Amendment’s speech protections would likely be characterized as “anti-gay” or “pro-racist” measures that had been cynically contrived to protect the capacity of bigots to say disgraceful things with impunity and to reinforce the various power structures and privileges that are at present claimed to be destroying America. The “freedom of the press,” meanwhile, would be openly disdained as an overture to the corporate purchase of elections; the “right of the people peaceably to assemble” would be regarded as a direct threat to the sanctity of the land around the entrance to abortion clinics; and the wide-ranging conscience protections contained within both the establishment and the free-exercise clauses would be cast as a devilish recipe for theocracy that would allow the irrational to operate without oversight and the backward to undermine the great cause of Science.He's exactly right that there would be objections from both the right and left to specific amendments. That is why we should be so grateful that it isn't up to our modern populace to ratify the first ten amendments.
To run down the list is to see the modern objections fall neatly into place. As it is so often, the Second Amendment would be cast as a recipe for “Wild West” anarchy, an open invitation to sedition for those white, mountain-dwelling racists of the Southern Poverty Law Center’s nightmares, and an overture to the execution of children. The Fourth, the Fifth, and the Eighth would be denounced by both overzealous law-and-order types and totalitarian feminists as damnable “soft on crime” provisions intended to help dastardly types get away with raping college students and selling drugs to the vulnerable. And the Ninth and Tenth would be attacked viciously by our seemingly endless plague of ambitious public-policy graduates, almost all of whom believe down to their ill-fitting boots that there is no problem so small or so personal that it cannot be solved nationally. Precisely because it has such a limited effect in restraining the government, the only provision that would remain would be the Third, about quartering soldiers, although one can only suppose that John McCain and Lindsey Graham would put up quite the fight.
If it sometimes feels as if the Bill of Rights is the only thing standing between the little guy and majoritarian tyranny, that’s possibly because it is. Americans may be freer than most, but it is often thanks to Supreme Court decisions and not to public opinion that America remains an outlier. It is because judges have stepped in that it is legal to burn the American flag in protest; that the Westboro Baptist Church may stage its execrable funeral demonstrations without fear of tort liability; that seditious speech may not be punished by the government; that disgusting videos may not be banned; that conservative Christians have been spared the indignities of the Obama administration’s contraception mandate; that collections of citizens may engage in political criticism; that parents caring for their children may not be forced by the state to join a union; that the residents of Washington, D.C., Chicago, and other “blue” cities may buy and own handguns for their protection; that the government is prohibited from searching cell phones without a warrant; and so on and so forth. Looking around the country — and examining the attitudes that prevail in Washington, D.C., on our college campuses, and in our hopelessly excitable media — can we honestly conclude that three-fourths of We the People would vote today to so restrain ourselves? We are living on borrowed wisdom.I have recently come to the dismaying realization of how readily the younger generation would be to limit some of these amendments. The subject of hate speech codes came up recently in class and there was a lot of support for college regulations limiting students for the speech that would be permissible, even for public universities. The feeling seemed to be that any speech that truly offended someone should be banned. And they were willing to leave it up to college administrators to determine what would be offensive. We've come a long way from the Free Speech Movement of the 1960s.
And it's another reason to be glad for the Anti-Federalists who insisted on the promise that a Bill of Rights be added to the Constitution before they agreed to ratification. And then to be grateful to the ideals of the Founders that agreed on those liberties.
This discussion arose in my A.P. European History class when we were discussing current problems facing Europe today. The students were talking about problems arising from the influx of immigrants, particularly Muslim ones, who didn't assimilate to European cultural standards and how that led to the sorts of violence we had seen in the terrorist attacks in Paris. The students seemed more concerned about discrimination against Muslims resulting from such attacks. I mentioned the pledge by the Labour Party's Edward Miliband to ban Islamophobia if his party were to win the election this week. Several students felt that that would be a good idea. When other students pointed out that it was wrong to ban criticism of one religion and not others, the response seemed to be that other religions were in the majority so it was okay to criticize them. When I brought up the First Amendment, one student argued that since we already limit free speech in cases of obscenity, why shouldn't limiting hate speech be a similar exception?
The whole discussion truly saddened me. I hadn't realized how much my students have absorbed the modern antipathy to anything that might offend certain groups.
Add onto Cooke's concerns about the Bill of Rights being ratified today, the willingness college campuses have had to totally suspend due process rights when there are accusations of sexual assault. How willing would a 2015 electorate be to accept the protections of the Fourth, Fifth, and Sixth Amendments for those accused of such crimes?
The attack on the Prophet Mohammed drawing contest has led to many in the media to say that, sure they love the First Amendment and hate violence, but that Pam Geller's group had provoked the attack on them. It really is dismaying to see how eagerly some on the left are eager to limit speech that they object to. Ed Morrissey writes,
The issue here should have been the shooting — not the provocative activists who were targeted by the now-deceased shooters. Instead, the media focused its attention mainly on Pamela Geller and Geert Wilders, two of the organizers, for their provocation of violence — as if drawing cartoons, no matter how offensive or hateful, amounted to violence or threats of such.Morrissey also points to this article in McClatchy by Lindsay Wise and Jonathan Landay discussing whether there should be some limits on provocative speech and this excellent fisking by Ken White at Popehat of the points made in the article.
New York Times foreign correspondent Rukmini Callimachi — who focuses on Islamic extremism — tweeted this in the immediate aftermath:
Free speech aside, why would anyone do something as provocative as hosting a "Muhammad drawing contest"?— Rukmini Callimachi (@rcallimachi) May 4, 2015
Isn't the better question why someone would shoot at a drawing contest? Shouldn't those who make their living in the First Amendment arena ask that first, and not be so quick to put "free speech aside"? Besides, The Atlantic's Jeffrey Goldberg asked, "Who gets to define provocative? … If you don't like Muhammad cartoon contests, you can hold rallies, give impassioned speeches, write letters and op-eds."
In other words, free speech becomes the antidote for what people might consider "bad" speech. Protecting the innate human right to question and proclaim is a much higher priority than clucking tongues at those assaulted and killed for doing just that. If we cannot rise to the defense of those who use speech instead of violence to make their point, and instead shrug at violence as an understandable consequence of controversial speech, then we will have incentivized violence and surrendered our own right to speak out against it.
This is a target-rich environment, but let's take one example: this remarkably bad article at McClatchey by Lindsay Wise and Jonathan Landay. Wise and Landay, to steal a line from The Onion, ask the question other people are too smart to ask: "After Texas shooting: If free speech is provocative, should there be limits?"We have allowed the heckler's veto to win out at campuses across the country. Why should it stop there? If we reward violence by banning the speech that led to it, we will have provided the incentives for more violence. Such is the lame logic behind such arguments.
They begin by pointing out that the organizers of the Muhammad Art Exhibit arranged for extra security, suggesting that because they contemplated the risk of violence that they should not have spoken. But how is that a just or relevant standard? Would Wise and Landay approach Russian gay rights protestors and tell them to shut up because they could predict a bloody, brutal response from thugs? Would they rebuke the organizers of May Day marches, which seem reliably to produce violence by some bad actors?
....Much of the rest of the column is devoted to talking about how bad Pamela Geller is, and how the American Freedom Defense Initiative is a hate group. But this is irrelevant. You can talk to me all day about how Geller is a nasty, scary nutjob, and I'm unlikely to disagree much. But that has no bearing on whether her speech is, or should be, protected. We don't need a First Amendment to protect the soothing and the sensible.
Wise and Landay don't answer their own question about "provocation" and don't provide their readers will tools to get closer to doing so. The answer is no. Speech should not be banned because it is "provocative," as they use that word. Accepting that premise gives every hothead in the world the right to control our speech by indulging their subjective reactions to it. Wise and Landay are exploring whether drawing Mohammad should be permitted, but it's only at the whim of violent people that their question is so narrow. Nothing restrains Muslims (or anti-gay protestors, or abortion opponents, or Democrats) from cultivating a much broader list of speech that makes them violently angry. Established First Amendment exceptions are carefully defined and objective, but "provocation" as a measure of censorship cedes all authority to the offended and provoked. Can people who react violently to speech — to cartoons — be expected to be judicious in selecting the topics that will provoke them to aggression? Wise and Landay are effectively inviting people to be more violent in order to control what speech is permissible.
This is journalism?
Allahpundit provides his own fisking of CNN's Chris Cuomo's tweeting that hate speech is already unconstitutional.
Chuomo goes on to defend his statement by citing Chaplinsky v. New Hampshire. Allahpundit writes,
it doesn't. hate speech is excluded from protection. dont just say you love the constitution...read it https://t.co/znZJ8cPvpX— Chris Cuomo (@ChrisCuomo) May 6, 2015
Ah yes, the “Chaplinsky test,” a.k.a. the “fighting words” doctrine. He’s eating crap from righties and lefties alike as I write this for reading too much into what the Chaplinsky decision allows. That’s the case, handed down by the Supreme Court in 1942, that says the First Amendment doesn’t protect words “which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” Over time federal courts have narrowed that ruling to make clear that it only applies, in Ken White’s words, to “face-to-face insults that would provoke an immediate violent reaction from a reasonable person.” In other words, says Instapundit, a “personal invitation to brawl.” All true, but it’s painfully easy to move from that standard to a standard in which “hateful” speech qualifies as “fighting words” whether or not it’s uttered face to face, whether or not the violent reaction is immediate, and whether or not a reasonable person from the “majority” might object to it. Pam Geller’s Mohammed cartoon contest is a perfect example. That was a private event, not a face-to-face demonstration in front of a group of Muslims; most Americans would say that cartoons of any figure, no matter how insulting, don’t justify a violent response; and there was no reason to expect that the violent reaction, if it came, would be an immediate attack on the event itself rather than a plot to target Geller or her allies later. It should fail the Chaplinsky test easily. (And Cuomo, in fairness, isn’t saying otherwise.)Allahpundit points to a poll showing how much more willing Democrats are than Republicans or Independents to support a law that would make hate speech a crime. We've already seen how willing Democrats are to deny First Amendment protections to political speech. I guess these results shouldn't be surprising. Just depressing.
But if the point of Chaplinsky is to keep the peace by banning certain words that are likely to inspire a violent reaction, then of course the cartoon contest qualifies as “fighting words.” Even Geller’s critics, like Noah Feldman, acknowledge that there’s a nonzero risk of bombs going off around someone who mocks “the prophet.” In the modern world, where we’re all basically face to face on the Internet, communicating your insult in person seems like a formalistic, archaic requirement. And of course, as any good progressive would tell you, it’s horrible chauvinism by a privileged class to think insulting Mohammed should be permissible simply because America’s non-Muslim majority doesn’t find it offensive. Again: If keeping the peace is the touchstone here then naturally we should ban insults to Mohammed. It’s the very first thing we should ban, in fact, because there’s no form of speech nowadays that’s more likely to lead to violence than that. And that’s why Chaplinsky is such a pernicious, awful decision: It rewards violence by punishing the speaker instead of the guy who wants to punch him in the face. In fact, if you re-read the majority opinion, you’ll see that the case didn’t actually involve an invitation to fight or any sort of direct threat of physical violence. The words that got Chaplinsky thrown in jail, that were unworthy of constitutional protection, were him telling a local cop, “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” He was guilty, in other words, of being insulting. You don’t think progressives, given a few decades of sustained effort to influence the consensus about the First Amendment among left-wing judges, couldn’t build on that precedent to treat all “hate speech” as fighting words?
Meanwhile, Cameron Gray writes at Ricochet how the shooting at Garland is a liberal's worst nightmare for what it implied about freedom of speech, gun rights, the threat of ISIS
George Parry writes for the Philadelphia Inquirer to compare the reaction to Adres Serrano's photograph of "Piss Christ" to the reaction to Pamela Geller's draw Mohammed event.
To be sure, Christians objected to “Piss Christ” and the feces-covered Holy Virgin. And they rightfully wondered why their tax dollars had been used to promote these blasphemies. But their objections and questions were condescendingly dismissed by the secular left in the media and intelligentsia. As one prominent art critic sniffed, Ofili’s “The Holy Virgin Mary” was “deliberately provocative” in order to “jolt viewers into an expanded frame of reference, and perhaps even toward illumination.”The reaction was quite different to the shooting at Geller's event. Too many in the media have reacted by blaming Geller for inciting violence by offending the sensibilities of Muslims.
As if in one voice, the mainstream media and self-anointed intelligentsia argued that antiquated religious sensitivities must not be allowed to interfere with either an artist’s free expression or his right to government funding regardless of how offensive his work may be to Christians.
Well, it seems that things have changed.
What has been the response of the liberal media to this act of lunacy? Have the talking heads come to the defense of the cartoonists’ right of free expression in a pluralistic society? Has anyone publicly observed that drawings of Mohammed might “jolt” Muslims into an expanded frame of reference” or “illumination”? Far from it. The overall media consensus has been to blame the intended murder victims for recklessly provoking the terrorists. Such provocation, we are told, is unacceptable and irresponsible behavior given the risk of retaliation by offended radical Muslims.Allahpundit looks at the NYT's response to the shooting in Garland which criticized those who draw Mohammed. The NYT agrees that ridiculing religion is protected free speech, but assert that the Garland event was not about free speech, but "an exercise in bigotry and hatred posing as a blow for freedom."
By this bizarre logic, the Rev. Dr. Martin Luther King Jr. and the Selma marchers should be condemned for instigating the melee on the Edmund Pettus bridge. Same for the three murdered civil-rights workers in Mississippi, the victims of Bull Connor’s police dogs, and anyone else who has taken a stand that might irritate violence-prone people.
For the mainstream media and chattering classes, dumping on peaceful, law-abiding Christians is good, safe sport. But pointing the finger of blame at murderous Muslim fanatics? Well, let’s not get carried away. Rather than draw the ire of radical Muslims by firmly and unequivocally condemning the attack, the infotainment industry has concentrated its attention on the provocative nature of the draw-Mohammed contest. After all, like a drunken, immodestly dressed rape victim, weren’t the draw-Mohammed contestants just asking for it?
Better to question the wisdom of cartoonists exercising their rights than to acknowledge and vigorously confront and expose the elephant in the room, i.e., that there is a disturbingly large number of radical Muslims in this country who oppose our Constitution and who believe that murder is an appropriate sanction for those who offend Islam. That, of course, is the real story behind the attack in Texas. But to grapple with that might inflame those radicals and pose a risk to careers and corporate profits, or result in expulsion from the preening ranks of the politically correct.
Those two men were would-be murderers. But their thwarted attack, or the murderous rampage of the Charlie Hebdo killers, or even the greater threat posed by the barbaric killers of the Islamic State or Al Qaeda, cannot justify blatantly Islamophobic provocations like the Garland event. These can serve only to exacerbate tensions and to give extremists more fuel.Allahpundit responds,
Some of those who draw cartoons of the Prophet Muhammad may earnestly believe that they are striking a blow for freedom of expression, though it is hard to see how that goal is advanced by inflicting deliberate anguish on millions of devout Muslims who have nothing to do with terrorism. As for the Garland event, to pretend that it was motivated by anything other than hate is simply hogwash.
The first step on the path to banning “hate speech” is distinguishing it from free speech. Free speech is vital to society; “hate speech” harms society. They’re different things entirely, not one a subset of the other. Once you make the conceptual break, you can get down to the important business of weighing whether the harm from hate speech is sufficiently great that it’s worth trying to carve it out of the body politic. The Times is on the path, whether they realize it or not.The NYT asserts for itself the ability to decide which speech is legitimate free speech and which is hate speech.
What makes this editorial extra special is that the Times has been famously hypocritical about reprinting blasphemous images over the last few decades. They had no problem with “Piss Christ” or Chris Ofili’s elephant-dung portrait of the Virgin Mary, both of which “inflicted deliberate anguish” on million of devout Christians, but they wouldn’t touch the Danish Mohammed cartoons 10 years ago and they wouldn’t touch the Charlie Hebdo Mohammed cartoons this winter even though both were at the center of major international news events. When pressured to account for that, NYT editor Dean Baquet argued that some of the Charlie images were simply too obscene to be published in a respectable paper like the Times, which doesn’t explain why not one of the many cartoons that weren’t obscene failed to make the cut. Later Baquet compared cartoons of Mohammed unfavorably to anti-semitic cartoons (some of which the Times has published, for purposes of illustrating anti-semtism) by suggesting that the former are more offensive as a religious matter to Muslims than the latter are to Jews. Never once to my knowledge has he or the Times acknowledged the plain fact that Mohammed cartoons are verboten within the paper because publishing them would risk an attack on NYT HQ. In fact, per Andy Levy, when it came to “Piss Christ” the threat of violence was actually a reason to show the image, according to the Times
Eugene Volokh writes in the Washington Post to explain that what Geller's group was doing was defiance and that that is protected speech. He has an interesting example from a murder case from Alaska.
You can watch Volokh on Megyn Kelly's show explaining how there is no constitutional provision against hate speech and that those critics of Pamela Geller's event don't understand the First Amendment.
Jonah Goldberg: Prophet of Spin
Jeffrey Goldberg has a good essay at The Atlantic about "The Dangerous Myths About Charlie Hebdo." He points out that the French humor magazine is not anti-MUslim.
The first myth is that Charlie Hebdo is anti-Muslim. It is not. It is critical of Islam, as it is critical of all religions. Islam is a set of ideas, just as Christianity and Judaism are sets of ideas. In the putatively enlightened age in which we live, all ideas should be subject to testing, criticism, even excoriation....Read the rest of Goldberg's piece. It is a powerful refutation to the idiocies of Gary Trudeau who spoke out against giving the cartoonists at Charlie HEbdo an award. Goldberg concludes,
Judaism was a target of its cartoonists. And Christianity was actually targeted more frequently than Islam. (A recent study by Le Monde found that religion as a whole was a fairly rare subject of Charlie Hebdo covers.)
The third is the most important: Charlie Hebdo specializes in attacking ideas, not people.
I hope that someone, someday, will explain to Francine Prose the work of Voltaire and Spinoza. I also hope that Garry Trudeau will one day understand that it is an act of bravery to write in opposition to religious fundamentalism in the face of fatal violence. And I'm glad that the PEN American Center has not capitulated under pressure.