by Steven Hill
"The First Amendment is a noble doctrine indeed. It is the first amendment. First in importance, first in magnitude."
"Unquestionably Ulca. Expound more, please. You are a noted authority on the subject. No doubt we have much to learn from you."
Theo and Sophia rolled their eyes, but Socrates ignored them.
"Yes, well...as the sacred words say...'No law means no law...'The government shall make no law abridging the freedom of speech.'"
"Ah, I see. 'No law' is paramount then?"
"And how about 'abridging the freedom of speech?' Does that have import on the sacred meaning?"
"Certainly. That is what the government shall make no law about. Abridging freedom of speech."
"In your reading of this sacred text Ulca, is the abridgment of speech as important as 'no law?' Or is one part of this of greater import than the other?"
"They are of equal value Socrates. One can't fly without the other. They are the left and right wings of the great ship of the First Amendment."
"Then if it can be shown that you have a misunderstanding of one part of this sacred sentence, then it follows that you misunderstand the entire sentence. Isn't that correct?"
Ulca shifted uncomfortably. He could feel the eyes of the others upon him, and he decided to accept the challenge.
"Certainly. If you could show that my understanding of either 'no law means no law' or 'abridging the freedom of speech' is somehow fallacious, you would have proved a point, I suppose. But I must warn you, I have been a scholar of the First Amendment all of my professional life," he snorted. "It's not as if I was born yesterday, First Amendment-wise."
"Indeed, you are known and respected far and wide. I include myself among your admirers," smiled Socrates.
"Many try to make much of subtle nuances of words," said Ulca, "and say the Founding Fathers meant this, the Founding Fathers meant that. But any second grader can tell you what 'no law' means. It means, well--no law! Government out, hands off. It's amazing how so many thinkers and pundits--with the noblest of intentions, mind you, I've no quarrel with their stated aims--can misconstrue the simplest of words."
"Yes, it would seem hard to quarrel with such a concrete proscription," said Socrates. "But what about the second part -- abridging the freedom of speech."
"Again, it's quite clear, quite direct. Case law from NY Times v. Sullivan to Miami Herald to PG&E v. PUC make this quite clear, that government has no business in the realm of speech, even toward the noblest of goals."
"But what constitutes an abridgment?"
"An abridgment is the government acting is such as way as to effect a restriction or curtailment of the flow of ideas or information, written, broadcast, spoken or otherwise. That is and ought to be unconstitutional."
"But is an abridgment the same as a restriction? Or a curtailment?" asked Socrates.
"I don't follow you."
"It's quite simple Ulca. I am asking you to distinguish between an abridgment, or a restriction or curtailment. Is that possible?"
"Seems to me like you are splitting hairs. That's how we get ourselves into trouble with this doctrine, trying to stretch it into something it's not. Something it was not intended to be. If the First Amendment is inadequate, let's change it or amend it once again. But don't try and stretch it into something that the Founding Fathers never intended."
"Ah, the Founding Fathers are the final arbiters, are they?"
"No, the Constitution they wrote is," smirked Ulca.
"But the Founding Fathers themselves passed the Alien and Sedition Act, did they not?" said Sophia. "Made it illegal to criticize the government during time of war? Threw people in jail for it, if I'm not mistaken. Obviously their idea of an abridgment was different than yours."
"Yes, well...that's true. But...their interpretation was..."
"Was their interpretation wrong, or is yours?" asked Theo. "What, after all, constitutes an abridgment?"
"OK, I will gladly elucidate that for you," smiled Ulca confidently.
"Before you do, Ulca, please tell me," said Socrates. "Can the founders of a document misinterpret their own document? And can their progenitors, coming along 200 years later, interpret that document more correctly than the actual founders?"
The stares of the others pressed Ulca.
"No, I shouldn't think so," said Ulca. "Surely the drafters of a document ought to know more of what they intended than those interpreting down the passages of time."
"So if the Founding Fathers did not believe that sedition laws constituted an abridgment, and you do, then who has the flawed interpretation of that document?"
"Well...but...times have changed. That was a different time period."
"No law means no law, doesn't it?"
"Well, yes, but..."
"So then, what is not clear, looking back over the passage of time, is what constitutes an abridgement, correct? Or, rather, what the Founding Fathers thought constituted an abridgment?'
"Well, yes, I suppose so..."
"So we agree that no law means no law, but what is open to discussion is--what constitutes an abridgment of the First Amendment. Yes?"
Ulca reluctantly agreed.
"Ulca, if you will grant me the indulgence, I would like to change the topic only slightly," said Socrates. "What should be the goal of the First Amendment?"
"That is simple Socrates. The goal of the First Amendment ought to be to keep the government from acting as censor in matters of speech."
"The government, then, is the target of the First Amendment?"
"Absolutely and unequivocally."
"The goal then, is to prevent the government from establishing any laws or taking any police action that may have the effect of stifling or chilling speech?"
"Why, yours and mine. And yours Theo, and Sophia's. Everyone's. Isn't that obvious?"
"So only individuals? How about institutions and entities like businesses, universities, bookstores?"
"Theirs too. Protected. The government has no business intervening in the free speech of any organizational entity."
"Not even in corporations? For instance General Motors, Ford, or ABC, the New York Times?"
"Heavens no, not of any size. New York Times v. Sullivan settled that over thirty years ago."
"Thank you Ulca. Thank you for being so clear and precise in your definitions. It is refreshing to discourse with one as straightforward as yourself. It helps to make our task so much easier."
Ulca cleared his throat uneasily.
"Now, what happens, Ulca, when the free speech of one individual or entity interferes in the free speech of another?" said Socrates. "Does the government have a compelling interest in getting involved in such a transaction?"
"None that I can see. Unless some criminal act is committed, such as one speaker is physically preventing another from speaking. But that is a whole other matter entirely, one for the criminal courts."
"What if one is simply shouting louder than another, drowning the other out, so that the other cannot be heard? Or yelling "Fire!" in a crowded theater, or perhaps using a loud horn or playing one's stereo too loud?"
"Anti--noise and anti--nuisance ordinances handle that quite nicely, and the government may act to ask the louder one to turn down the volume somewhat. That is perfectly acceptable, and has nothing whatever to do with the content of the loudmouth's speech, but rather to the annoyance created by over--zealousness."
"Thank you," said Socrates. "Yes, those who talk too loudly certainly are a nuisance, and at times even a threat. We have agreement on that point."
"You know, come to think of it, those ads for the candidate named Vela, that I've seen on the TV so often lately, are also a nuisance, as far as I'm concerned. They're ubiquitous and loud and annoying, negative in the extreme, some even claim libelous against his opponent, have you seen them?"
"Yes, I've seen them. They are very annoying."
"But that's not the kind of annoyance that you are speaking of."
"No, no, not at all. That's a difference type of annoyance. That's the annoyance of someone with too much money and no idea what to do with it. And government has no role to play there."
"What of the buying and selling of speech? Via advertisements, ownership of the press and media and what not? Can someone buy too much speech?" asked Socrates.
"I don't follow you."
"Well, we have both agreed that some noisy fog horns who talk to loudly and too long are a public nuisance. Can we apply this axiom to those ubiquitous speakers in our daily lives, advertisers, junk mailers, media tycoons and such?"
"I shouldn't think so. That is specifically what the First Amendment does not allow, since that would involve the government making rules to prevent someone's speech."
"Even though they are an annoyance?"
"Even though it has nothing to do with their content?"
"It has only to do with how much they are saying, or how often, and how loudly, nothing whatsoever to do with what they are saying."
"Let me put it another way. You are also on record as being an anti--trust lawyer. You support the Sherman Anti--trust act, don't you?"
"Certainly. Against its detractors and usurpers--more and more in this current climate--I defend it vigorously."
"Too much concentration in lesser and lesser hands you find destructive, do you?"
"Yes, I do."
"Then what of the situation in which certain segments of the media become concentrated in fewer and fewer hands? What happens when media conglomerates control more and more of the media. Is it possible that anti--trust can clash with the First Amendment?"
"Jurisprudence is always a matter of a clashing of rights," replied Ulca. "A balancing act between conflicting goals, if you will. Property rights vs. public rights, privacy rights vs. civil rights, states' rights vs. federal rights, the environment vs. jobs, etc. But free speech is the most important right of all. In a struggle between free speech and other rights, free speech must always prevail. It is a fundamental right, the first amendment. That's why our Founding Fathers included it in the Bill of Rights."
"But as we have seen, their interpretation was certainly much different than yours."
"Yes, well...still the principle was established. Free speech must always prevail over other rights."
"Except where previously noted."
"Well, yes...that's right. There are certain instances, and nuisances, yelling fire in a crowded theater, playing stereos too loudly, and so forth."
"Good. Even you then, Ulca, admit that the First Amendment is not so monolithic as you sometimes seem to indicate. And we have established that the Founding Fathers, who you quote liberally in your frequently published articles on this subject, actually had a different view of the First Amendment than you do. If they were here in the room right now, I dare say you would have significant differences with them. Correct?"
"Significant? I don't think so. I will grant you that there are minor differences. In order to defend the First Amendment, I will be the first to admit that sometimes it is necessary to engage in hyperbole and propaganda to win hearts and minds. Still, the fundamental principles remain."
"And please state them again?"
"That the government may not interfere in any way to detract from the speech of any individual, organization or institution, period. We engage in such behavior at the peril of our democracy, and the free flow and exchange of information. The solution to bad speech, or misleading speech, or even hate speech, is simply more speech. A more muscular First Amendment, let all sides be heard, the glorious goal should be to foment, in the words of Justice Brennan--a champion of free speech and one of my heroes-- a 'robust public debate of significant social issues.' That is why it is so important to curtail government, so that it cannot curtail speech, ergo, public and robust debate."
"Well said Ulca. Bravo," said Socrates. "Your eloquence is a credit to your reputation and your profession. But tell me Ulca, is it possible that some may have a greater impact on this public debate than others?"
"Certainly. Some, by the strength of their ideas, or their eloquence --"
"Or their pocket book," said Theo.
"Certainly, yes, some by virtue of their personal fortunes, may impact this public debate differentially."
"So some may have, shall we say, more effective speech than others?"
"Yes, I suppose it may be stated that way. Some have more effective speech than others."
"Can a child be said to impact the public debate Ulca?"
Ulca snorted. "I shouldn't think so, not under normal circumstances."
"So a child has ineffective free speech, we can say then?"
Ulca shifted uneasily. "Yes, we can say that a child's speech is ineffective, in that sense."
"And how about a homeless person, with no money, no resources, not even a pen to her name to write a letter to the editor. The government may not censor her speech, but can we say that her speech, while free, is wholly ineffective to impact the public discourse?"
Ulca squinted his eyes. "Yes, that person's speech is ineffective, as we have defined it."
"And how about the person on the street corner, standing on her soapbox fomenting against various social ills, if that is her only means of broadcasting her opinion in this modern age, can we say that her opinion will only impact the few hundred or so people with who she happens to come in contact, and is therefore quite limited?"
"Yes, obviously that person's impact on the public debate is quite limited."
"Can we even say that it is ineffective?"
"Oh, I don't know that I would go that far. Certainly she's not as effective as a broadcaster as ABC or Disney."
"Certainly," smiled Socrates. "Ulca, can we say that, on the whole, all the homeless, with their lack of resources, and all the soapbox democrats, with their loud voices but little else, are not as effective as ABC and Disney?"
"Ha, I should say so. They are like the fly on the flank of the great steed of state."
"Indeed," smiled Socrates. "A whole class of people, thousands and thousands of individuals, with very little effective speech. How have we gotten to this state of affairs, Ulca?"
"How is it that, in this great democracy of ours, we have reached a state of affairs where so many have so little effective speech?"
"They simply lack the resources, it's perfectly obvious. It has ever been so."
"You mean some lack the resources, but others have the resources, yes?"
"Well, yes, I've already said that."
"Thank you. The resources are not shared in common then?"
"Well, no, no they're not. That's perfectly obvious. What's your point?"
"Ulca, what would happen, do you suppose, if you, or I, or Theo, or Sophia, were to walk into the New York Times and announce that we are taking over publication of the newspaper for the next week. What would happen, do you think?"
Ulca laughed. "I dare say the owners and managers of the Times would show you post--haste to the door. Or possibly worse."
"Certainly. They might have you arrested."
"Arrested, would they?" asked Socrates, his eyebrow arching. "Arrested by whom?"
"Why, by the police, of course."
"By the law enforcement arm of the government, you mean?"
"Yes, yes, of course. Really, Socrates, this line of questioning is growing tedious. What's your point?"
"Forgive me, Ulca, but that's a form of government intervention in speech, is it not? Isn't that an abridgement?"
Ulca chuckled, shaking his head. "Hardly, Socrates. It's simply an act of protection of someone's legally constituted private property."
"Thank you, Ulca. Now, Ulca, what if the rules--the laws--were different. What if the laws said that all media resources must be shared in common. That everyone who so desires could print their own articles, in, say, the New York Times. That you might own the New York Times this week, I the next week, Sophia here the following week, and so on."
Ulca laughed. "Why, there would be First Amendment chaos, obviously. The free press would become the anarchist press, it would be utter confusion. Surely you aren't proposing --"
"Now now Ulca, let us not jump to conclusions or put thoughts or even words forward for each other, agreed? No one is proposing anything of the sort, this is just a little thought experiment, indulge me, won't you? Surely here, in a spirited forum of philosophical inquiry, we may unleash our minds and imagine, can we not?"
"Very well, proceed with your little thought experiment. But I must warn you you are reaching the borders of the bizarre. It's only your esteemed reputation that is keeping me from excusing myself early for a dinner date."
"Ah, too kind, you are only too kind," smiled Socrates. "So, back at it, shall we? So if the rules of the game were such that no one owned the press, or the media, but rather the infrastructure was there for everyone to use equally, no one greater than another, I think we can agree that you are quite right, something approaching anarchy would result."
"So to avoid that, the government establishes certain rules, does it not? Passes laws, to regulate and officiate?"
Ulca shifted uneasily. "Yes, indeed."
"And those laws have a tendency to allow certain courses of state and private action, and proscribe others, true?"
"Well, yes, of course. That's what laws generally do."
"We can even say that these laws, passed by the government, abridge certain actions and policies, and not others, can we not?"
Ulca clucked and smiled. "Very well, Socrates, for the sake of argument--which you so dearly love--I will concede the use of the term."
"And these laws, taken in their entirety, have a tendency to protect what is owned as private property, so that only, for instance, the Sulzbergers own the New York Times. Or a board of directors controls Time Warner, or Rupert Murdoch owns, well, he owns quite a lot, more and more every day . And those laws protect what is owned as private, and within reason give the owners of that private property permission to do pretty much whatever they want with their property, print what they want, or not, editor ialize or not, give access to some writers and organizations and ignore others. Correct?"
"Yes yes, within certain constraints regarding obscenity, libel, they can do and print what they wish. That's called the free press."
"Yet, if there were other laws and rules established--say, as in our previous example, rules that lead to anarchy, more people might get to speak using the mass media, but others who currently own the mass media and get to speak a lot would probably speak less. Is that true?"
"So it's the government's laws that have established and maintained this condition, true? Reinforced by the power of its police function?"
"I'm not sure I would state it like that."
"Let me try it again, hopefully to your satisfaction. The government licenses the airwaves, does it not? And it could just as easily license the air waves with one set of rules as another, could it not?"
"Yes, perfectly true."
"The government could require all broadcasting networks, for instance, to give equal time to all political candidates, could it not? Or equal time to different points of view, or political parties, homeless advocates as well as General Motors? And the fact that is has chosen not to do so--regardless of the merits of such a policy, pro or con, mind you--the fact that the government instead auctions off the air waves to the highest bidder, guarantees that some will privately own more of the means to speak than others, and that some will speak more often, more loudly and more effectively than others, does it not?"
Ulca shook his head. "Really, Socrates. Sweeping general statements like that are too simplistic to--"
"Indeed, since effective speech in the modern era requires accumulated amounts of property and wealth, the government's laws protecting that property and wealth have established who may and may not speak, have they not?"
Ulca pursed his lips, not offering a reply.
"Which, according to the definition you gave at the beginning of our discussion, is an improper--indeed unconstitutional--abridgement of free speech, is it not?"
"Socrates, really, you are hopeless."
"Isn't that an abridgment, by your own definition, and therefore unconstitutional? Come come, Ulca, you must be able to respond more convincingly than puffing out your cheeks with exasperation."
"Socrates, there is no point in trying to explain to you."
"Indeed Ulca, defend your canon or recant. I will remind you of your original statement: 'No law means no law.' Yet here we see that the government has created a veritable jungle of laws, that allows some to have effective speech--those with the most property and wealth, protected by the long arm of the government's police function--and others to have little effective speech at all. Clearly, something about your interpretation of the First Amendment is awry, Ulca."
Ulca blinked like an owl. He stared vacantly at Sophia and Theo, who returned the stare. He shook his head, and finally, without another word, he gathered up his umbrella and coat and turned on his heels, leaving immediately.
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