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Why I Love The First Amendment

Because in a nation that doesn’t zealously protect Freedom of Speech, something like this can happen:

In Britain, the trend toward the curbing of free expression picked up speed on Monday, when British student Liam Stacey was sentenced to 56 days in prison for posting racist comments on Twitter. When Premier League footballer Fabrice Muamba had a heart attack during a soccer game and was rushed to hospital, a drunk Stacey took to the microblogging site and spewed a series of racially abhorrent tweets into the ether. Other Twitter users — including sports pundit and former top-flight footballer Stan Collymore — quickly noticed his words and reported Stacey to the police, who arrested him and charged him with incitement to racial hatred a few days later.

When Muamba collapsed, said the judge at Stacey’s trial, “not just the footballer’s family, not just the footballing world but the whole world were literally praying for his life. Your comments aggravated this situation.” In fact, it is hard to see how Stacey’s words aggravated anything much at all. What he wrote, utterly appalling and unprintable as it was, had bearing neither on the efficacy of Muamba’s life-saving treatment nor on the likelihood of his survival. It prevented nobody from praying for his life or exercising any of their own rights. And it encouraged nobody to do anything illegal. Sure, what Stacey wrote may have — should have — upset many people. But in a free country, that cannot be a crime.

Explaining his decision to imprison Stacey, the judge noted that he had “no choice but to impose an immediate custodial sentence to reflect the public outrage at what [Stacey had] done.” “To reflect the public outrage”? Translation: British speech law is determined by the sentiments of the mob.

What Stacey said was bigoted and offensive, but the solution for that isn’t to overturn centuries of principles on the value of liberty just to satisfy the mob, the answer is to give the idiots the social approbation opprobrium they deserve and deny them the satisfaction of engaging them. The idea that a few insulting things that one says on Twitter could subject someone to nearly two months in prison is absurd, and it’s unfortunate that the land that gave of John Stuart Mill and John Locke has turned into something like this.

A case like this brings to mind many of the controversial First Amendment cases that the Supreme Court has dealt with over the years. Whether it’s Nazis marching through the streets of a predominantly Jewish community outside Chicago, an anti-war protester wearing a jacket with a profanity laced political message, a political protester burning an American flag, or an extremist religious group protesting on public land near the funerals of fallen soldiers, there is much debate each time one of these cases comes up and the Court rules against the efforts to restrict speech.

Usually,though,  the reaction to the decision isn’t really a comment on the logic of the court’s legal reasoning so much as it is an emotional reaction to the content of the speech. In many cases, that reaction is understandable. A group of Nazis in Jewish neighborhood is offensive for reasons that hardly need to be stated. The Vietnam-era draft protests were in many ways an emotional clash of generations. Flag-burning has so deeply offensive that some people have tried to amend the Constitution to ban it. The Westboro Baptist Church seems to exist for the purpose of putting out an offensive message. And,  the things that Stacey said when a beloved soccer player collapsed on the pitch during a nationally televised match were understandably offensive to many Britons. However, the fact that people have a revulsion at the content of someone’s speech is not a reason to ban it, or punish the speaker. Nobody was harmed by the speech that was protected in the Supreme Court cases I cited, and nobody was harmed in any real way by Stacey’s tweets. There’s simply no good reason to punish people because they offend us or act like jerks.

Besides, if we started putting people in jail just for acting like a jerk, we’d have a serious overcrowding crisis in a short period of time.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. John Burgess says:

    Maybe an overcrowding problem, but think of all the jobs! New prisons, new prison guards, new roads to the new prisons, new companies making food (or pseudo-food) for prisons, new prison uniforms… the list could be endless.

    Of course, all those new jobholders could find themselves in prison…

    Like or Dislike: Thumb up 1 Thumb down 0

  2. Modulo Myself says:

    or an extremist religious group protesting on pubic land near the funerals of fallen soldiers…

    Fairly certain that free speech doesn’t cover this one.

    Like or Dislike: Thumb up 0 Thumb down 1

  3. @Modulo Myself:

    Did you bother clicking on the hyperlink?

    Because if you did you’d discover that last year the Supreme Court ruled 8-1 last year that this was protected speech.

    Like or Dislike: Thumb up 1 Thumb down 0

  4. Commonist says:

    I don’t respect the right to yell “n****r” in a crowded society. Sweden is where it’s at – here there are always legal repercussions for truly null use of speech as in the case above. We keep our bigots short and have less of a problem with them than the US, overall.

    Like or Dislike: Thumb up 4 Thumb down 8

  5. OldSouth says:

    Thanks for this post. I have a relative in the UK, a US citizen, who recently noted how unsettling it is at points to live in a place that does not a Constitution in black-letter form as we do here.

    This incident confirms the wisdom of his insight.

    Like or Dislike: Thumb up 0 Thumb down 0

  6. OldSouth says:

    @Doug Mataconis:

    And, when those despicable people from that horrible church show up to a funeral (or even threaten to), hundreds of decent citizens along with a not a few motorcycle clubs show up to surround the funeral home to keep the morons far away, and demonstrate their support for the grieving family.

    That’s how to deal with the bigots! Cheaper and much more effective than prosecution and jail.

    Like or Dislike: Thumb up 5 Thumb down 0

  7. Ben Wolf says:

    @Doug Mataconis:This is one area in which the U.S. is far superior to the rest of the western world.

    Like or Dislike: Thumb up 3 Thumb down 4

  8. Modulo Myself says:

    @Doug Mataconis: @Doug Mataconis:

    Sorry, I was making a joke about the ‘pubic’ typo. I agree that on public land it’s okay.

    Like or Dislike: Thumb up 3 Thumb down 0

  9. @Modulo Myself:

    Sigh. This may be a sign I need new glasses. Fixed.

    Like or Dislike: Thumb up 2 Thumb down 0

  10. Franklin says:

    @Commonist: Sweden, as is most every other country in the world, is fairly homogeneous. If you guys had imported slaves based on race and then set them free, I guarantee you’d have a bit more racial disharmony.

    Like or Dislike: Thumb up 4 Thumb down 3

  11. Jenos Idanian says:

    @Commonist: I don’t respect the right to yell “n****r” in a crowded society.

    So, you’d ban most of rap music, huh?

    Personally, I love it when people do that. It is so considerate of them to self-identify as worthless, hateful idiots who should be watched.

    Hate groups — genuine hate groups, not “whoever the SPLC doesn’t like and wants to use for fund-raising purposes” — do their best recruiting and work covertly. So it’s great when they act overtly.

    Like or Dislike: Thumb up 5 Thumb down 7

  12. Rufus T. Firefly says:

    the answer is to give the idiots the social approbation they deserve

    Surely you meant to say that racist idiots should receive opprobrium rather than approbation.

    Like or Dislike: Thumb up 3 Thumb down 0

  13. protest&survive says:

    I think it is a bit rich that someone from a country where corporations have the same speech rights as a person, and where money = speech, is calling out another country’s speech laws.

    Why you Americans have created a fetish for your First Amendment I’ll never understand.

    Like or Dislike: Thumb up 8 Thumb down 8

  14. Jenos Idanian says:

    @protest&survive: Why you Americans have created a fetish for your First Amendment I’ll never understand.

    And, pardner, if you don’t understand it on your own, I can’t explain it to you. Just stay content being a subject of whatever nation you belong to. Embrace your serfdom. We’ll embrace our citizenship.

    Like or Dislike: Thumb up 6 Thumb down 6

  15. Gromitt Gunn says:

    @OldSouth: Wouldn’t such behavior constitute a (layman’s, not legal) heckler’s veto?

    Like or Dislike: Thumb up 0 Thumb down 0

  16. WR says:

    @Franklin: “Sweden, as is most every other country in the world, is fairly homogeneous. ”

    Actually, that’s an old stereotype that is hopelessly outdate. Sweden now has a large immigrant Muslim population.

    Like or Dislike: Thumb up 2 Thumb down 0

  17. Dave Schuler says:

    @WR:

    Actually, that’s an old stereotype that is hopelessly outdate. Sweden now has a large immigrant Muslim population.

    I guess that homogeneity is in the eye of the beholder. According to the CIA World Factbook roughly 87% of those living Sweden are Lutherans, a rough proxy for ethnic Swedes. 13% are Catholics, Orthodox, Jewish, Muslim, Buddhist, etc. According to this report roughly 5% of those living in Sweden are Muslims, divided between recent immigrants and second generation.

    By comparison the U. S. has never been that homogeneous, not even when the national identity was WASP. Besides English, Scots, and Scots-Irish we had blacks, Germans, Dutch, etc.

    Note that Germany is more than 90% ethnic German and France is at least 80% ethnic French (whatever that means). Our level of diversity remains quite exceptional.

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  18. Dave Schuler says:

    Something to keep in mind is that the notions of what constitutes fundamental rights or even what constitutes free speech or freedom of religion are culturally conditioned.

    In England the “right to cross the land” is enshrined in Magna Carta and deemed a fundamental right. Here we call it “trespassing”.

    Like or Dislike: Thumb up 9 Thumb down 0

  19. Ebenezer Arvigenius says:

    Note that Germany is more than 90% ethnic German and France is at least 80% ethnic French (whatever that means). Our level of diversity remains quite exceptional.

    Like every time this is brought up: You can’t compare European nationality and American ethnicity!

    If you apply the same standard to the US as you do to the EU (nationality), the US is about 88% homogeneous.

    If, on the other hand, you go by ethnicity, Germany for example has about 20% foreign born inhabitants, not 10%.

    Like or Dislike: Thumb up 3 Thumb down 0

  20. Tlaloc says:

    While I’d like to agree with you Doug, and I certainly would have 10 years ago. What I see now is that the free speech rights end up meaning discourse suffers huge noise to signal ratios. because you can say essentially anything and because we have a system that relies on an informed electorate it’s become the case that there are entire cottage industries set up to lie faster than said lies can be debunked, and to spread sensationalist lies further than any retraction or correction will ever reach. Why should groups like AEI get to repeat the same long disproven claims year after year thus making people dumber (if they listen) or making it harder to talk for the noise (if they ignore the content)? Why do we have to tolerate the liars who act aggressively to harm us as a nation for their own personal interests? Is there really no way to separate wheat from chaff? And if that’s the case then doesn’t that go a long ways towards proving democracy is a fools errand?

    And no, I don’t know what’s the right solution, but I think where we’re headed is utterly self destructive. And I don’t think we’re in any position to lecture others.

    Like or Dislike: Thumb up 3 Thumb down 1

  21. Murray says:

    I too like my First Amendment. But why is it that people like Doug always come up with examples such as these where I feel no empathy for the convicted?

    I love my first Amendment because it gives me the right to protest against decisions of the powers that be without fear of retribution. Not because it also gives me the right to be a jerk.

    Like or Dislike: Thumb up 4 Thumb down 1

  22. Hey Norm says:

    I think you’d be hard-pressed to find someone to speak against the 1st Amendment.
    But there really should be qualifiers. Maybe unfettered freedom is not a good idea.
    Take Dick Morris for instance. Should he be allowed free speech? Should the 1st Amendment apply to people who are simply wrong about everything they say?
    Or Bill Kristol. Seriously. Maybe there should be a qualifier…For instance Kristol would have to preface everything he says with a disclaimer: “…I helped sell a needless war of choice that killed 4000 troops and cost $2T and ultimately strengthened our enemy…but I think invading Iran next would be a really good terrific idea…”
    Some people already use disclaimers…Drew for instance: “…I’m the world’s most accomplished corporate financier…and I think Tax Cuts pay for themselves and create massive growth…” See, that works because everyone recognizes the pomposity, and discounts the opinion out of hand.
    I mean really…we should be able to revoke the 1st Amendment rights of some people based on their free speech performance.

    Like or Dislike: Thumb up 1 Thumb down 6

  23. An Interested Party says:

    Our level of diversity remains quite exceptional.

    Much to the dismay of some, including someone in particular who comments here…

    Like or Dislike: Thumb up 4 Thumb down 0

  24. Kylopod says:

    While there are many ways in which the U.S. lags behind other countries, I think that in terms of the First Amendment rights–not just speech, but also religion and church-state separation–it is far ahead of most countries today.

    Like or Dislike: Thumb up 2 Thumb down 3

  25. Anthony says:

    Good piece, but as a Brit I just want to take issue with a bit of it:

    “What Stacey said was bigoted and offensive, but the solution for that isn’t to overturn centuries of principles on the value of liberty just to satisfy the mob”

    There is no mob. Not really, anyway. This is very much – this may sound loaded, but isn’t meant to be – an elite concern. I know a couple of people who applaud the bloke (who is clearly either an idiot or very unpleasant or both) being locked up, but most people think it’s crackers and pretty worrying. I think there’s some pushback brewing on this issue. There’s a political and judicial consensus (albeit an uneasy one) that is largely disconnected from opinion out in the country.

    I think the best piece on this issue is probably this one from left wing (and distinctly not racist) journo Nick Cohen:

    http://www.spectator.co.uk/nickcohen/7743183/the-tweet-police.thtml

    Like or Dislike: Thumb up 0 Thumb down 0

  26. Davebo says:

    From the headline

    An lesson from the United Kingdom in the importance of protecting freedom of speech

    Someone should protect Doug from his freedom of misspeaking. Perhaps twenty posts per day is too much for one.

    Like or Dislike: Thumb up 0 Thumb down 0

  27. To echo Doug, from one of my favorite books:

    there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.

    -’On Liberty’, Mill

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  28. Al says:

    @Murray: The First Amendment isn’t needed to protect popular speech, it’s needed to protect unpopular speech.

    Like or Dislike: Thumb up 5 Thumb down 0

  29. shirt says:

    Don’t worry abut the UK, worry about US.

    “They said that various provisions written into the National Defense Authorization Bill, which was signed by President Barack Obama at the end of 2011, effectively broadened the definition of “supporter of terrorism” to include peaceful activists, authors, academics and even journalists interviewing members of radical groups.”

    I think that krinkllng noise was the 1st amendent dissipating like a fart belching forth in heavily starched shorts..

    Like or Dislike: Thumb up 1 Thumb down 1