Justifying a Strong First Amendment in the Age of Beck

Freedom of SpeechThe great irony of concerns about “activist judges” “writing the law” is that most constitutional law is, by necessity, judge-made. Constitutional dictates are generally vague but, when they apply, absolute, forcing judges to make tough calls that the Constitution almost purposefully avoids. This flexibility is baffling in the short term, but liberating stretched over the centuries.

The First Amendment embodies this tension. Its ban against government interference in speech is absolute — “Congress shall make no law…” — but its operative term, “speech, remains impossibly vague. Seriously, what’s a “speech”? More than a feeling, less than a Platonic dialogue?

Whatever it is, it’s no patriotic puffery to say America has the most expansive speech protections in the free world. We do. But it doesn’t have to be that way: other comparably free states explicitly ban speech that is worse than useless, like speech tending to “stir up religious hatred.” Should we? And, more importantly, why don’t we?

Like other profound questions — e.g., “which bear is best” — there are basically two schools of thought. We permit “bad speech”: (1) to encourage self-governance, because citizens need all information available to them to make informed decisions, even bad information, or; (2) to further the “search-for-truth,” a sort of laissez-faire approach to speech which argues that, in the clash of ideas, truth always wins, meaning objectively bad ideas are either no threat, or useful antitheses, helpful in pushing towards a synthesis.

Both theories have serious flaws. If the First Amendment need only protect speech necessary for good citizenship, the self-governance rationale simply changes the battlefield from what constitutes “bad speech” to what constitutes “good citizenship,” therefore failing to answer the question. And the “search for truth” rationale makes sense — bad speech does lose out — but only over the long term. The really, really, really long term. In the short term, bad speech often wins.

That brings us to Glenn Beck. I assume at the outset this conclusion: Beck’s show is “bad speech” — calculated to inflame rather than inform, in a way that indirectly or, now, directly, can cause loss of life (if you don’t accept that premise, fine: keep reading, but substitute Beck’s name for a hypothetical person presenting those problems).

Beck, or our hypothetical Beck equivalent, as I’ve argued before, has “checkmated the First Amendment.” Now more than ever, his survival as a television force proves that the short-term marketplace theory flat-out doesn’t work. Or, it doesn’t work anymore: in today’s media environment, he’s suffering for loss of advertisers, but Fox can absorb the blow. And, his philosophy has a kernel of useful ideology in it, but set against his track record of historical revisionism and outright mendacity, that kernel stands to naught. Beck is a hole in First Amendment theory: but how do we plug it, even if we accept that he doesn’t merit America’s hyper-strong speech protections?

That typical bogeyman of the right, the Fairness Doctrine, is a non-starter. Apart from being political suicide and presumptively unconstitutional, the Fairness Doctrine is, by this time, impractical at the network-by-network level, and wouldn’t answer the problem, anyways. The concern isn’t that “good speakers” (on all sides of the spectrum) lack for outlets — they have plenty — it’s that people like hearing insane lies, and Fox can afford to subsidize the practice after it stops being profitable.

The answer to the problem, so stated, may therefore be to “unleash the free market,” both in the economic and dialectic senses. The real problem with Fox isn’t that their pundits are liars: it’s that they’re unaccountable liars. As an ideological outlet, Fox has every reason to push a popular money-loser like Beck to secure their partisan goals. They can write off the loss against other gains.

If size is the problem, rolling back the clock on Bush’s deregulation of corporate media may be a good first, content-neutral step towards terminating those incentives: restrictions on ownership would dilute the influence and corresponding financial immunity of major broadcasters. It’s not “socialism,” or command-economics in any sense. It’s quite literally a market-centered reform, geared to inspire rather than co-opt competition. Capped media ownership, at sufficiently low caps, would render corporations more accountable to standards of public decency.

Admittedly, this style of reform would require us to revisit, and revise, our “hands off” policy towards speech. But despite its centrality to the American system, the First Amendment remains, ultimately, a means to an end — the maintenance of a strong democratic system. We may not trust the government to regulate political speech — and thereby the manner of its own selection — but to echo an argument formulated first by better minds than mine (Profs. Bollinger & Stone), the incentives of unelected entrepreneurs are no less pure than those of politicians, especially when they become, in essence, political adjuncts. It’s time to re-evaluate.


  1. Ames,
    I’m not a lawyer (even when I play one at my blog) but I have never interpreted the Constitutional protection of Free Speech as you have. I think, acutally, you haven’t been expansive enough.

    Why? Simply this – the Constitution was written in an age where the social contract it embodied had two parts. First there were the rights, which were codified in a general sense because the writers had direct experience with suppression of those rights in a legal doctrine that, frankly, encouraged it. Thus we get the Bill of Rights, and all the other Amendments.

    Bu the second part of the social contract – to which you allude – was the flip side of the right – the responsibility. Allowing citizens to “keep and bear arms” comes with the responsibility to those citizens to do in a way that doesn’t harm others – i.e. just because you could own a musket didn’t mean you could shoot your neighbor when he threw hog offal over the fence.

    We’ve lost a sense of those responsibilities as we’ve championed those rights. That loss, I believe, is largely at the heart of our current political state – we all want what we want, but we’re not willing (by and large) to shoulder the responsibilities that go with the wanting.

    Your suggestions of some sort of accountability are a good start, but, frankly, until the American people stand up to Fox and Beck and demand that they act responsibily with their speech, not much else will change. Economic incentives will only get you so far, andthey are often perverse incentives in the end – doubly so when dealing with Constitutional matters.

  2. I absolutely agree. The First Amendment is especially susceptible to misinterpretation — “it’s a free country” is no response to “you’re being a jerk.” And conservative whining about “censorship” — Beck, Palin, Stein — perpetuates the misunderstanding that the First Amendment allows you not just to speak, but to speak without interruption. It doesn’t work like that. We’re definitely missing a serious idea of what the right means, and what responsibilities come with it.

    The problem is it’s hard to translate the sentiment — “we need to be more responsible” — into any real corrective measure. Mandatory (basic) conlaw classes in high school could be a start. Sigh.

    Also, excellent use of “offal” :).

  3. I don’t think its that hard – I had 2 semesters of Civic (with that name) in highschool. I’m 38, so it wasn’t that long ago. My duaghters (13 and 11) won’t even get a 6 week unit on it when they go up in a few years. Apparently civic responsibility doesn’t lend itself as easily to standardized testing.

    And the “offal” truth is there are a great many English words that need to be revived in the common lexicon. ;}

    I also think you and I as bloggers have a responsibility to point out (as you have) when free speech actually isn’t – for any reason.

  4. I’ll take that challenge, and start with your mind-killing pun. Ugh.

  5. Oh come on, you know you love me!

  6. Here’s a wild and crazy idea: Rather than tinkering around with various legal ways to restrict speech we don’t like, why not educate our population well enough to differentiate between crap and quality programming. But it isn’t just about lousy political shows…it’s about lousy shows in general. For every Beck and Olbermann, there are 10 reality shows that also serve to lower the collective IQ of their viewers. The problem isn’t Fox News, MSNBC and producers of Survivor…it’s the consumers who gobble it up.

    1. Agreed. That’s why your and Phil’s solution is probably better. Mine is a stopgap that assumes rather than addresses a problem with the populace.

      And yes, Phil, I do!

  7. Gotchaye · ·

    Question: is Beck actually unprofitable for Fox? I gather that he’s been bleeding advertisers recently over the racism comment, but there weren’t any others willing to step in? How are sales of t-shirts and whatever tea party paraphernalia they’ve got going for Fox? The man brings in something like three million viewers – Fox could slash advertising rates for his show by 50% of what you’d expect them to be and still bring in as much revenue as MSNBC does with Olbermann or Maddow. I have a hard time buying that Fox is keeping him around for any reason except that he’s really quite profitable.

    1. you’re exactly right, these people and shows, both radio and TV, stay on until and unless they become unprofitable…then good bye and on to the next “star”.

  8. I disagree with you that speech “tending to stir up religious hatred” is worse than useless – or any sort of ‘bad speech’ at all. However, speech in opposition to abortion is indeed, I believe, worse than useless and I would happily make it a criminal act.

    And I think I’ve just illustrated the reason you missed why any non-authoritarian society needs to be zealous in its rigorous defense of the broadest and most robust absolute protections on speech and self-publication (the “of the press” part) possible: to ensure that the exceptions made for justified cases don’t swallow the rule. If we allow ourselves to criminalize pro-life speech, we make it possible for the opposite to happen, so we make do with not being able to criminalize speech – which, I feel, is a good thing in and of itself. Frankly, I’d say the individual freedom of speech & [printing] press portion of the 1st Amendment is as much an end as it is a means.

    There’s an oft-quoted axiom from the U.S. judiciary that the Constitution does not prohibit every harmful, unwise, or otherwise undesirable law. Don’t ignore the truer corollary: the Constitution does not permit every beneficial or desirable law, and on the whole that’s a good thing.

    1. Steve,
      I agree that legal sanction for hate filled speech may well be going too far. AFter all, if we make it illegal to say bad things about one group or circumstance, then we’ll likely make illegal for others in the future as the political winds shift.

      What we do need, however, is a better system of

  9. What we do need, however, is a better system of public shaming.

    And I need more coffee.

  10. Capped media ownership, at sufficiently low caps, would render corporations more accountable to standards of public decency.

    We have that where I live, trust me it doesn’t work. Can’t own more than one newspaper per city, can’t own both a TV station and a radio station (ABC exempt). End result, my city has one newspaper, and three fully commercial TV stations, along with a full government and a government subsidised. I can buy a national paper, News Corp like the local. One of the TV stations owns nearly every magazine and they flog them endlessly. At the end of the day the local paper and three commercial stations carry the same sensationalised bullshit because it sells. Radio is worse, AM is still all right-wing shock jocks.

    The only left of centre voices on TV and radio is the government owned/subsidised networks. The last conservative government filled the boards full of right-wing newspaper columnists; imagine Coulter in charge of PBS. Didn’t work out though as they were picked for ideological purity rather than competence and so you ended up with an impotent board at loggerheads with the staff.

    The end of the day Beck sells one way or another and News Corp is going to out compete its rivals. What it did out here when its market share got too large is close down papers. News Corp closed The News, the freaking paper it was named after, just to keep with in the law.

  11. […] only works if powerful participants can’t bury that truth under a mountain of money [see two similar posts on the subject]. But Romney might prove that individual candidates (and perhaps individual […]

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