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First Amendment

8 min read

Part of Free speech and civil liberties.

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Every episode (16)

Who argued it

Terry Pell ×2 · Ted Galen Carpenter · Will Duffield · Robert Mahoney · Jeffrey Singer · Jeff Kosseff · Eugene Volokh · Jeffrey Barke · John Samples · Frank Buckley · Bill Ottman · Anthony L. Fisher

Free Speech · Section 230 · Censorship · Social Media · COVID-19 · Public Choice Theory · Campaign Finance · Public Sector Unions

Background

Text, structure and reach

Bob Zadek describes the First Amendment to the Constitution as prohibiting government—not individuals—from enacting any statute abridging the right of free speech, and states that the amendment, which limits the federal government, was extended to the states by the 14th Amendment. He calls the United States the only country that does not ban hate speech in one form or another, and says the reason goes back to the founding. Jonathan Rauch on the New Attacks on Free Thought (2015)

Jonathan Rauch agrees that America is a real outlier because of the First Amendment, noting that Hungary used to be the one European country that did not sanction or punish hate speech before it came into the fold. He points to United Nations treaties to which most countries are a party that require nations to punish racially bigoted and discriminatory speech, and to an effort in Europe to expand that to sexist speech. Rauch says such limits are usually civil penalties rather than jail, administered through human rights commissions that drag people through investigations, which chills how people speak. Jonathan Rauch on the New Attacks on Free Thought (2015)

Rauch disputes Zadek’s claim that free speech is in Americans’ DNA. He recalls a managing editor at his first newspaper job saying that if the First Amendment were put to a plebiscite in the United States today, it would lose and lose big, and argues that those against restrictions on hateful and offensive speech must remake the case every day because it is counterintuitive. Jonathan Rauch on the New Attacks on Free Thought (2015)

Government action and private action

On LifeLine, guest-hosting in place of Craig Roberts, Zadek sets out definitional guardrails: censorship is the suppressing of political, social or religious ideas that one group may not approve of. He says censorship per se is not illegal—an individual may tell others not to read a book or watch a television program, and a business may take a position on controversial issues and try to suppress other views, running the risk of losing customers. The law steps in, he says, compliments of the First Amendment, which prohibits censorship by government; the Constitution defines the relationship of government and its citizens rather than regulating behavior among individuals. He adds that the freedom is not total, citing incitement of violence as unprotected. Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)

Zadek frames the evening’s puzzle as how Twitter, a private company, has triggered so much discussion about the First Amendment when the amendment does not regulate Twitter. Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)

A two-track system: print and broadcasting

Paul Matzko tells Zadek that when Americans say free speech or the First Amendment they often think of print and newspapers, and that the proposition the government would license newspapers feels weird—though in early modern Europe it was ordinary for governments to license newspapers, and America reacted against that by creating a very high bar for shutting down print speech, protections strengthened through 20th-century court cases. Because of what he calls the scarcity principle excuse, broadcasting was not given full First Amendment protection, so government could decide whether you could own a radio station based on whether your speech was appealing to those with power, was in the “public interest,” was fair and equitable. The result, he says, is a two-track system: a First Amendment in print, but not a true First Amendment in broadcasting. The Radio Right and The Fairness Doctrine (2021)

Matzko accepts Zadek’s parallel between radio before the FCC and the internet. Early radio stations coalesced early in the 1910s and broke out big in the 1920s, with the FCC bulking up in ‘27 and ‘34—a span of about 15 years, against roughly 25 years from the growth of the consumer internet to today. He says we may be looking at a 1927-type situation in which government seeks to take a new media form born free and unregulated and clamp down on it, discouraging free expression and making the internet less interesting, less weird and more mainstream. The Radio Right and The Fairness Doctrine (2021)

End-runs and jawboning

Will Duffield tells Zadek there is a real path dependency because formal protections are so strong, both compared to the past and to other countries. He cites law professor Eugene Volokh on the deluge of “cheap speech” the internet has brought—everyone able to publish almost costlessly what previously would not have warranted the price of postage or the paper it was written on. In Germany and Turkey new laws restrict what people can say online, but in the United States, because of the First Amendment, politicians or powerful figures upset by what others have said cannot do that; instead they have the capacity to jawbone. ‘Jawboning against Speech’ with Will Duffield (2023)

Zadek calls jawboning the improper exercise of power, performed indirectly because government is given the power to do so, and says complaints about government exceeding its authority always trace back to it being forbidden from doing something directly and finding an end run. His illustration is the speed limit: government cannot control the speed limit, but it can condition pavement money on a 55-mile-an-hour limit, forcing its will by an end run. ‘Jawboning against Speech’ with Will Duffield (2023)

Censorship through noise

Robert Mahoney tells Zadek that the COVID-19 pandemic was not just a health crisis but a crisis of personal freedom and censorship, because governments terrified by a once-in-a-century pandemic doubled down on censorship to cover their own incompetence instead of engaging citizens in dialogue. He distinguishes old-fashioned censorship—restricting the flow of news, as in the Soviet Union, China or modern Russia—from “censorship through noise,” which he says was used in the US and a couple of other liberal democracies, confusing people with misinformation, lies and propaganda so that in the end they do not know what to believe. He cites social distancing and mask-wearing as measures whose purpose was unclear amid a confusing information landscape. Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)

Mahoney says the confusion in the US reflected confusion in the White House, with a desire to cover up bad news and downplay the severity of the disease, and quotes Steve Bannon’s advice to flood the zone with garbage—using a less polite word—to create confusion. He states the US has over a million COVID deaths out of six million globally while not representing a sixth of the world’s population. Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)

Across episodes

The topic recurs across all four episodes, but the episodes show no development: Rauch (2015) and Zadek (2023) both state that the First Amendment limits government and reaches the states through the 14th Amendment; Matzko (2021) and Duffield (2023) both describe strong formal protections producing government workarounds, whether the licensing of broadcasting or jawboning.

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