Like many, I’ve been thinking a lot about our First Amendment lately. As protest and violence in the Muslim world has occurred in response to the vulgar Internet video satirizing the Prophet Muhammad, and as we’ve seen President Obama simultaneously defending our free speech rights and denouncing the video, I’ve pondered this:
What makes the First Amendment so challenging for some to understand? How can we better explain why the First Amendment is so important to Americans?
History usually provides some good insight into why things are the way they are today.
I chose to consult than A History of the American Constitution, by legal scholars Daniel A. Farber and Suzanna Sherry. I read this book as a student of both professors when they taught at the University of Minnesota Law School. The chapter on the Bill of Rights spoke to my lingering question:
- Free speech and free exercise of religion were among several rights that the colonial Americans cherished most from British heritage.
- These rights were viewed as inalienable; fundamental; self-evident; natural; inherent; “true, ancient and indubitable rights and liberties.” In essence, if you were human, you possessed these rights.
- Because they were inherent, they didn’t need to be written to be protected. If they were written, the writings were viewed as “declarations” - not “enactments.”
- As such, government lacked the power to limit certain of these rights.
- There was significant debate at the Constitutional Convention as to whether a bill of rights was even necessary. For instance, there was objection to including a declaration as to the freedom of the press, because the power of Congress did not extend to the press.
- James Madison, then elected to the House of Representatives, met considerable resistance from fellow Congressmen to even discuss the issue of amendments to the Constitution. Ultimately, however, he presented the amendments, with this preface:
It will be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. . . .
- Weeks of debate over necessity, substance, and working ensued. The final result was the version that is now our First Amendment:
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, and to petition the Government for a redress of grievances.
The establishment, free exercise and free speech clauses form a trifecta of freedom.
We get to decide whether we worship at all (per the establishment clause), and if so, who we worship, where we worship, when we worship and how we worship (free exercise). We get to choose how we express our religion and honor our faith (free speech). Walk down any street in America, and you’ll see expressions of religion worn on our bodies, whether it be a cross pendant or a burqa. Walk into any home, and you may see a crucifix, the Star of David or nothing at all.
A fundamental American right is the ability to express our thoughts about religion. We get to disagree, criticize and even ridicule. Offensive? Yes. Blasphemous? Yes. Hurtful? You bet. It’s this part that is so difficult for other nations, and often even our own, to understand—why allow people to defile and blaspheme something that others hold dear?
We tolerate that which offends because we know, as did our Founding Fathers, that unleashing the natural liberty of free speech and religion is far more powerful and influential than even the most bigoted and irreverent video. Allowing humanity the full expression of thought and conscience ultimately enables humans to flourish, even when some of that expression is so utterly contrary to what we believe is right and good.
The First Amendment is one of the foundations of our American heritage and society. Without it, our other rights—and even our American culture—would suffer and stagnate. Those suffering under more repressive governments have difficulty appreciating that which we have long known to be fundamental: that the right of fools to speak freely actually gives our country and our people strength. Free speech is worth fighting for and worth defending, even when it’s been used to inflict harm.
Rather than violently oppressing the rights of others to speak offensively, Americans have bled and died in the defense of this right. We believe, as our Founding Fathers believed, that these rights of expression are as natural to our humanity as the blood in our veins.