Constitutional Law

Slouching Towards Censorship

|

National Review's Andrew McCarthy wrote a column yesterday about the WikiLeaks' brouhaha where he deployed the unfortunate sentence "the First Amendment has never been understood to mean what it says," thus opening himself up to the dread charge of endorsing a "living Constitution." Blogging today at NR's The Corner, McCarthy hastens to add that he only meant that the language of the First Amendment is "more sweeping than the freedom it was understood to convey." As evidence, he cites conservative legal hero Robert Bork's famously cramped reading of the First Amendment, including this passage from Bork's bestselling 1997 book Slouching Towards Gomorrah:

[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

It's nice to learn that McCarthy thinks the First Amendment means some of what it says, though his deference to Robert Bork raises a few additional concerns. Bork is no individualist and he is certainly no civil libertarian. His legal philosophy centers on letting the majority have its way. As Bork wrote in his 1990 book The Tempting of America, the "first principle" of the American system is majority rule, not individual rights. "In wide areas of life," he wrote, "majorities are entitled to rule, if they wish, simply because they are majorities." So Bork believes that speech with "slight social value" doesn't really deserve to be free. But who gets to measure that value? Bork would basically allow legislative majorities free rein to ban suspect speech in the name of "order and morality" and then angrily denounce any court that struck down the ban. The First Amendment deserves more respect than that.

NEXT: Republicans Nix Global Warming Committee

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. For there is one thing we must never forget? the majority can never replace the man. And no more than a hundred empty heads make one wise man will an heroic decision arise from a hundred cowards.

  2. …[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the …obscene, the profane, …and the insulting or “fighting” words…It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

    Dear Mister Bork:

    Go fuck your prostitute mother with a disease infected dildo, you worthless, authoritarian shitbag.

    Regards, BakedPenguin

    1. So are you implying that ted kennedy actually performed a public service by borking bork?

      1. He is / was a complete Hobbesian. There are few other conservatives so enamored with the power of the state as Bork.

      2. The borking led to souter, right?

        Tough call.

        Bork might be the lesser evil in that case.

        1. bork was nominated by reagan. souter was spawned by bush the first.

          btw

          “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”

          With the exception of the back alley abortions and the segregated lunch counters, kennedy pretty much summed up the USA in 2010. wow.

          1. I think it was a pro/con list for Kennedy:

            “Well there are these 2 things I dont like, but 4 I do like, but no, the former are too important to vote for this guy, but its close.”

            Oh, you thought all were things Kennedy opposed?

            1. maybe he was in favor of the first two. back alley abortions would cause less publicity for him and he may have been in favor of segregated lunch counters as long as the counter did the segregating.

        2. Kennedy got Bork’s spot.

      3. So are you implying that ted kennedy actually performed a public service by borking bork?

        Uh, yeah.

    2. Baked Penguin where are your manners that was very rude.

      It should be “kind regards”.

      1. I thought it was “Best regards.” Or is that “Best petards?” I can’t remember.

        1. I think it depends on what you’re hoisting.

        2. “Pest Retards”

          1. [Points finger at SugarFree, opens mouth in an ‘O’ of horror, and screeches like some kind of pod person who looks surprisingly like Oddball from Kelly’s Heroes.]

            1. I get that a lot.

              1. It’s probably from all of those giant pods around your house.

                1. If you eat a Body Snatchers pod–while in total vegetable form–is it cannibalism?

                  What about after the pod replaces a human?

  3. National Review’s Andrew McCarthy

    I loved his work in Mannequin.

    These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words

    None of which should be censored, or more accurately, restricted by prior restraint. Hell, you can be as libelous as you want, as long as you can back up what you say with the truth.

  4. Bork would basically allow legislative majorities free rein to ban suspect speech in the name of “order and morality” and then angrily denounce any court that struck down the ban.

    I bet he would have looked very sharp, in his neatly pressed black, German special division uniform, with their very fashionable caps.

  5. What does the 1st Amendment have to do with an Australian publishing from a server in Sweden? Or a German magazine publishing some choice bits from the leak?

    Does he expect the American media and population to simply cover their eyes and ears and pretend like this information does not exist? Ah, the good old days…

    Via Wikipedia’s entry on the Great Soviet Encyclopedia:

    “Following the arrest and punishment of Lavrentiy Beria, the notorious head of the NKVD, in 1953 the encyclopedia?ostensibly in response to overwhelming public demand?mailed subscribers to the second edition a letter from the editor instructing them to cut out and destroy the three-page article on Beria and paste in its place enclosed replacement pages expanding the adjacent articles on F. W. Bergholz (an eighteenth-century courtier), the Bering Sea, and Bishop Berkeley. By April 1954, the Library of the University of California had received this “replacement.””

    1. Mzilikazi: that was the only way to keep up with the rapidly changing events of the past.

      Jus’ testing my new computer.

  6. Not a fan of Bork by any stretch of the imagination, but come seriously on.

    So Bork believes that speech with “slight social value” doesn’t really deserve to be free. But who gets to measure that value?

    Unless you’re ready to strike down laws against perjury and death threats, you admit that not all speech should be covered by the 1st. Someone or someones is going to have to determine where to strike the balance between the need to preserve a bare minimum of societal order and the need to respect speech rights.

    1. You are sort of right.

      In the case of perjury/fighting words/libel some one has to draw that line.

      I see no need for a line at all for lewd, obscene or profane speech.

      Bork mixed all those together.

      1. And, especially, no need for a line for commercial or political speech. Not that Bork went that far.

    2. Agreed, but shouldn’t the rights of the individual be given first priority over the rights of the collective? Bork openly prefers the opposite.

      1. Only individuals have rights.

      2. I don’t favor Bork’s interpretation. However, I also don’t favor Mr Root’s notion that a balance doesn’t need to be struck.

    3. Like all rights, your right to free speech ends where it infringes upon the rights of others, such as inciting a riot, giving false testimony, or fraud.

      1. Giving false testimony that helps a defendant get acquitted doesn’t violate anyone’s rights. That’s still perjury.

        It’s debatable whether you can really classify fraud as a rights violation.

        1. Of course fraud is a violation of rights, property rights to be specific. Whether you are misrepresenting property or services, you are receiving the person you defrauded’s property under false pretenses. That is tantamount to theft.

          And how does going false testimony that frees a guilty person not violate the rights of the person seeking justice for whatever crime was committed against them?

          1. Does telling a woman you’re rich, and driving her home in the Ferrari you borrowed from your friend, so that she’ll sleep with you, constitute rape?

            If not, then fraud does not constitute theft.

            1. In your hypothetical, whether or not it’s rape is not the issue, because rape is not theft and conflating the two is an insult to any rape victim.

              The victim may be able to get some recompense in a civil suit, depending on how good her lawyer is and the jury or judge. The speech in question would not be protected.

          2. And how does going false testimony that frees a guilty person not violate the rights of the person seeking justice for whatever crime was committed against them?

            If that were true then a prosecutor who drops a case against a criminal defendant is violating the purported victim’s rights.

            1. Why would a prosecutor drop a case against a guilty person that they believed they could win? And how is that at all like giving false testimony? You’re wading into the waters of non sequiturs to try to win this debate.

    4. It’s not a balancing act, you moron. In the cases of death threats and perjury, you are causing harm to others. You can express yourself all you want. That said, you can not cause injury to others via speech for the same reason I can not use my right to bear arms to weed out annoying neighbors.

      1. How do death threats cause harm to others? I hope you’re not claiming that provoking a negative emotional reaction in someone is a violation of their rights; that’s the basis for lefty speech codes.

    5. Perjury would easily qualify as a contract violation.

      1. You don’t have to sign a contract to testify. If you’re referring to the oath taken before testifying, that’s a peculiar sort of contract, as it is only binding when agreed to inside a courtroom. If taken on a street corner, the exact same oath to tell the truth is not legally binding.

  7. the insulting or “fighting” words

    Is “sheep fucker” insulting or “fighting”? Both? I can never remember.

    1. Fighting. As in “why were you and mommy fighting under the covers, daddy?”

    2. Not when said to a member of the bar.

  8. the language of the First Amendment is “more sweeping than the freedom it was understood to convey.”

    Stupid Founders. Couldn’t even get the First Amendment right.

    Although, oddly, the clause on separation of church and state is read very broadly indeed. How strange that the First Amendment contains one clause that is overbroad, and one that is a little narrow, no?

  9. In the case of perjury/fighting words/libel some one has to draw that line.

    Well, perjury is either a violation of the rights of others, as noted, or a violation of a contract you made when you swore the oath, so penalizing perjury doesn’t infringe on your right to free speech.

    Similarly, libel/slander merely hold you responsible for the damage your speech causes, and also do not infringe on your right to speech.

    “Free speech” does not mean free from the consequences of speech, you know.

    1. Argh, ninja’d on the perjury/contract angle.

    2. As stated above, false testimony that causes a criminal defendant to be acquitted does not violate anyone’s rights directly. But it is (and should be) considered perjury.

      1. The validity of a contract does not depend on where it is signed inside the jurisdiction enforcing it. If a contract is valid when is agreed to on a street corner, it is still valid when agreed to in a courtroom or on a beach or in a strip club. The oath taken before testimony is legally binding only if it is taken in a courtroom as part of the proceedings of a trial, so it is clearly not a contract.

      2. Also, witnesses can be compelled to testify, so in such cases the “witness contract” would be null and void.

      3. A contract requires some meaningful consideration to flow in both directions. The witness receives nothing in return for testifying, so the witness oath cannot be a valid contract.

      4. Even if perjury were breach of contract, that’s a civil matter, not a criminal one.

      “Free speech” does not mean free from the consequences of speech, you know.

      Free speech does mean freedom from coercive consequences, which is what happens when you’re criminally prosecuted for your speech (but not when your friends stop talking to you, or you get fired from your job, or people stop coming to see you play the saxophone because of your speech).

      1. 1. The validity of a contract does not depend on where it is signed inside the jurisdiction enforcing it.

        Why? It’s a time- and place- limited contract. There’s no reason a contract cannot have such stipulations. Warranties are only valid for a specific length of time, and they are contracts.

        3. A contract requires some meaningful consideration to flow in both directions.

        Nope.

        4. Even if perjury were breach of contract, that’s a civil matter, not a criminal one.

        Not if you breach a contract with the government.

        1. 1. I wasn’t referring to the time and place of the obligation of the contract; I was referring to the time and place at which it was agreed to. I suppose a contract could be written so that it would be invalid unless agreed upon at a certain time and place (“If this contract is signed at Main Street & Park Avenue on a Thursday afternoon, then…”) but the witness oath is not worded in any such way.

          3.

          Consideration is known as ‘the price of a promise’ and is a requirement for contracts under common law. The idea behind consideration is that both parties to a contract must bring something to the bargain. A party seeking to enforce a contract must show that it conferred some benefit or suffered some detriment (though it might be trivial, see below) that is recognized by law. For example, money is often recognized as consideration, but in some cases money will not suffice as consideration (for example, when one party agrees to make partial payment of a debt in exchange for being released from the full amount).

          4. Really? Under what criminal statute? Unless there’s a criminal statute there can be no criminal prosecution.

          1. 1. Oaths can be administered at any place, not necessarily in a courtroom. Perjury as a whole applies to tax returns as well.

            3. Conceded. I’m only aware of consideration in passing. And contracts with the government are tricky, “The promise must not be to do something one is already obliged by the general law to do – e.g., to give refrain from crime or to give evidence in court: Collins v. Godefroy.” That applies only to contracts between individuals. It does not apply when we’re discussing contracts between a citizen and the government.

            4. US CODE TITLE 18 > PART I > CHAPTER 79 > ? 1621

    3. And if libel and slander are just cases of paying for the damage caused by speech, then truth should not be a defense. If I tell an employer that a prospective employee smokes a joint every morning, and the employer decides not to hire them for this reason, my speech caused the same amount of damage regardless of whether it was true or not.

    4. RC, haven’t you heard of the case of Collins v Godefroy?

      This case (Collins v Godefroy [1831] 1 BAd 950) is the archemeta of cases where a duty imposed by law cannot be taken as Consideration to support a Contract.

      Godefroy promised Collins six guineas if he would attend court to testify on his behalf. At his agreement, Collins was subpeonaed. Godefroy refused to pay. In his defence, he claimed that there was no consideration moving from Collins, as he was obliged to attend court anyway. This view was upheld by the court.

  10. C’mon, everybody!! Riot and over at the Student Union, and then I’m killing Bork!!!

    *waiting*

    Sticks and stones may break my bones, but….

  11. NR’s coverage of the recent wikileaks data dump has been more depressing than I expected – it seems their consensus view is because wikileaks is anti-American there is no value in what they do and no crime they shouldn’t be punished for.

    1. I dunno. I’ve seen several pieces that attempt to draw lessons from the data itself.

  12. A person’s view on the First Amendment is a very good litmus test as to their commitment to limited government. Andrew McCarthy fails.

  13. Having read his blog post before yours, I think you’re nitpicking.

    He’s committed to the 1st Amendment right to criticize the government, while disagreeing with the claim that we all have a constitutional right to display tourette’s syndrome on TV.

    In a political landscape were Citizens United had to go all the way to the Supreme Court, I think you’re bitching at entirely the wrong person.

    1. Don’t worry, we can multitask.

  14. This is strange… Root makes it sound like this is the opinion of Bork, when in fact, as McCarthy makes clear, Bork is quoting the Supreme Court in Chaplinsky v. New Hampshire (1942). I’m no fan of Bork, but if you don’t like this opinion you should blame the unanimous court of 1942.

Please to post comments

Comments are closed.