British Attacks on Free Speech Prove the Value of the First Amendment
Speech codes intended to battle misinformation are instead empowering the government to be the arbiter of truth.
Political activists occasionally propose a new constitutional convention, which would gather delegates from the states to craft amendments to the nation's founding document. It's a long and convoluted process, but the Constitution itself provides the blueprint. Article V allows such a confab if two-thirds of Congress or two-thirds of the state legislatures call for one.
These days, conservatives are the driving force for the idea, as they see it as a means to put further limits on the federal government. Sometimes, progressives propose such a thing. Their goals are to enshrine various social programs and social-justice concepts. Yet anyone who has watched the moronic sausage-making in Congress and state legislatures should be wary of opening Pandora's Box.
I'd be happy enough if both political tribes tried to uphold the Constitution as it is currently drafted. It's a brilliant document that limits the power of the government to infringe on our rights. Without the first 10—the Bill of Rights—this would be a markedly different nation.
For a sense of where we might be without it, I'd recommend looking at Great Britain and its approach to the speech concepts detailed on our First Amendment. Our nation was spawned from the British, so we share a culture and history. Yet, without a specific constitutional dictate, that nation has taken a disturbing approach that rightly offends American sensibilities.
As Tablet magazine reported, "74-year-old Scottish grandmother Rose Docherty was arrested on video by four police officers for silently holding a sign in proximity to a Glasgow abortion clinic reading 'Coercion is a crime, here to talk, only if you want.'" Thousands of Brits are detained, questioned, and prosecuted, it notes, for online posts of the type that wouldn't raise an eyebrow here. The chilling effect is profound.
This isn't as awful as what happens in authoritarian countries such as Russia, where the government's critics have a habit of accidentally falling out of windows. But that's thin gruel. Britain and the European Union are supposed to be free countries. Their speech codes are intended to battle disinformation/misinformation, but empowering the government to be the arbiter of such vague concepts only destroys everyone's freedoms.
In 1998, Great Britain approved Article 10 of the European Convention on Human Rights. It protects a citizen's "right to hold your own opinions and to express them freely without government interference." But it comes with limits and conditions.
The authorities may quash such speech to "protect national security, territorial integrity (the borders of the state) or public safety," or "prevent disorder or crime," or "protect health or morals," or "maintain the authority and impartiality of judges." One may not express "views that encourage racial or religious hatred." Those are open-ended terms, which has led to bizarre prosecutions.
Our First Amendment includes these words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble." A constitutional amendment stating "no law" is more protective than a statute with asterisks and exceptions.
With the political Left devoted to limiting speech based on its fixations on race and gender and the political Right's willingness to, say, deport students who take verboten positions on the war in Gaza and malign reporters as enemies of the people, I'd hate to see how speech protections would fare in a refashioned constitution. Traditionally, the Left has taken a "living and breathing" approach, insisting its plain words and founders' intent are up for reinterpretation.
Sadly, modern conservatives, who previously defended originalism, seem ready to ditch the Constitution when it hinders their policy aims. Just read their dissing of due process—as stated in the 5th and 14th amendments, when it comes to immigration policy. When asked about habeas corpus during a Senate hearing, Department of Homeland Security Secretary Kristi Noem said it's "a constitutional right that the president has to be able to remove people from this country."
It's the opposite, as habeas corpus requires the government to explain why it's detaining people—and forbids it from holding them indefinitely. MAGA apparently believes the words of the Constitution mean the opposite of what they say. Frankly, I wouldn't want either side to be near a constitutional convention that's empowered to rewrite a document penned by men more brilliant and civic-minded than our current lot.
"Those who won our independence by revolution were not cowards," wrote Supreme Court Justice Louis Brandeis in the 1927 free-speech case, Whitney v. California. "They did not exalt order at the cost of liberty. … If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."
We don't need to revisit the Constitution, but to uphold the protections already within it.
This column was first published in The Orange County Register.
