The First Amendment in the Post-Truth Age

The First Amendment is the most important of all amendments to the US Constitution — after all, it is first not the second or anything beyond amendment, enacted along with the additional nine amendments as the price of acceptance by Thomas Jefferson, James Madison, and other Founding Fathers who feared the power of the government they were creating, worried that it might usurp the hard-earned freedoms of the people. As such, one might suppose and expect that the First Amendment would be respected above all others, the shining beacon that kept America free and therefore strong. It was, at first. But in the 20th and now the 21st centuries it has taken an increasing beating.

Jefferson and Madison believed, after John Milton (1644) before them, that the best safeguard of truth, the most effective way of making sure the people heard and saw it, was to keep the marketplace of wide ideas open to all ideas and information, including the patently and subtly and dangerously false. Government efforts to put gates on this marketplace, to make sure only truth was allowed in to the people, had exactly the reverse effect, they reasoned. Such censorship not only risked keeping out the truth, accidentally or deliberately mistaken by the government for falsity. It also weakened the public’s ability to exercise its judgment and separate truth from falsify. Attempts to cleanse the environment of dirty lies, to keep distortions from public, made them harder to see and identify.

As a result of the 2016 election in the United States and the role that fake news and Russian bots are thought to have played in putting Donald Trump in the White House, the calls for government regulation of social media have gotten louder (see Levinson, 2016-2018, for details). Ironically and significantly, Trump himself has publicly wished for a reduction in First Amendment protections of the traditional press, which he deems to be purveyors of fake news any time they report a story which he finds unwelcome. Trump’s attack on the press and the First Amendment underscores the need to respect it, in this day and age of Trump and his disrespect for the truth.

We have ample and tragic historical evidence and of what happens when a leader democratically elected commences a crackdown on the press. This is exactly the path that Adolf Hitler took in the 1930s. In the US in the late 1960s, Richard Nixon tried to prevent the press from publishing the Pentagon Papers, but the Supreme Court stopped him on First Amendment grounds. Perhaps Hitler succeeded in destroying democracy in Germany whereas Richard Nixon did not in America because America had a longstanding First Amendment.

But aren’t there some forms of expression that are beyond the pale -– so hateful, so dangerous, so vile, that they should not be protected by the First Amendment? Hate speech has been cited recently as such an example. Karl Popper’s paradox of tolerance (1945, see Aurora, 2017) is brought forth to justify censorship of hate speech. In fact, such a law was enacted last year in Germany (BBC, 2018), of all places.

But as much as I hold Popper’s work in high esteem -– my first published book was a Festschrift in honor of his 80^th birthday in 1982 –- I think he was very wrong in his view that we as a society cannot tolerate speech or communication which urges us to become an intolerant society. He was wrong, although that paradox of tolerance sounds very reasonable, because if we become intolerant towards hate speech, we are behaving just as the hate speech urges — when hate speech, or speech that preaches on behalf of intolerant society is banned or made illegal, we are in the very act of banning becoming an intolerant society.

Freedom of expression and the First Amendment are designed not to protect speech we love — that speech needs no protection. The First Amendment is designed to protect speech and communication we hate — and that protection protects our right to communicate, in case someone finds what we say hateful or even objectionable.

That’s an absolutist position on the First Amendment, I agree. But the First Amendment is the only amendment says, “Congress shall make no law.” That’s a far more absolute injunction than, for example, the wording of the Second Amendment, which says the right to bear arms “shall not be infringed”. The creators of our Constitution, in other words, held freedom of expression in far higher regard than freedom to possess weapons, and they did everything they could to it make more inviolable by government than any other fundamental human right. That’s because our capacity to communicate, to express love, and yes, hate, in words, is what differentiates us from all other living organisms, and gives us the ability to improve by talking about difficult things before acting, and most makes us human.

Paul Levinson, PhD, is Professor of Communication & Media Studies at Fordham University in NYC. His nonfiction books, including The Soft Edge, Digital McLuhan, Realspace, Cellphone, and New New Media have been translated into 15 languages. His science fiction novels include The Silk Code (winner of Locus Award for Best First Science Fiction Novel of 1999), Borrowed Tides, The Consciousness Plague, The Pixel Eye, The Plot To Save Socrates, Unburning Alexandria, and Chronica. He appears on CNN, MSNBC, Fox News, the Discovery Channel, National Geographic, the History Channel, and NPR.

References

Aurora, Valerie (2017) “Paradox of tolerance: A philosophical principle coined in 1945 could be a key defense against white supremacists,” Quartz, 16 August https://qz.com/1054694/a-philosophical-principle-coined-in-1945-could-be-a-key-us-defense-against-white-supremacists/

BBC (2018) “Germany starts enforcing hate speech law,” 1 January. http://www.bbc.com/news/technology-42510868

Levinson, Paul, ed. (1982) In Pursuit of Truth: Essays in Honor of Karl Popper’s 80^th Birthday. Atlantic Highlands, NJ: Humanities Press.

_____ (2016-2018) Fake News in Real Context. New York: Connected Editions.

Milton, John (1644) Areopagitica.

Popper, Karl (1945) The Open Society and Its Enemies. London: Routledge.