Jonah Raskin : The First Amendment Sucks

Cartoon by Ramiro Zardoya / Cartoon Movement.

And it’s not written in stone:
The First Amendment sucks

Once upon a time, I never would have said this. But I am saying it now: we have to watch what we say if we are to live at peace with one another.

By Jonah Raskin | The Rag Blog | September 20, 2012

In the wake of the murders of four Americans in Libya, including U.S. Ambassador J. Christopher Stevens, media pundits have come back again and again to the First Amendment as though it was sacrosanct and inviolable, and as though the First Amendment protects the rights of Americans to say anything they want to say about the prophet Mohammed.

In point of fact, the First Amendment never was, isn’t now, and never will be sacrosanct and inviolable. There has never been absolute freedom of speech and the press in the United States, though some, like Chief Justice William O. Douglas, insisted on it from the sanctity of the Supreme Court.

But did anyone ever stand up before the nine judges, point a finger at Douglas or any of his fellow jurists, and call him a “pimp for the American plutocracy” and a “dirty old man.” I don’t think so. I think he would have bounced them right out of the courtroom.

To this date, they don’t even allow TV cameras in the Supreme Court. How’s that for freedom of speech? Moreover, more to the point, the court has ruled that corporations have freedom of speech, but that high school students who unfurl banners that say “Bong Hits 4 Jesus” don’t. How’s that for logic?

The founding fathers who drafted the First Amendment, which says that Congress can’t abridge freedom of speech, freedom of the press, and the right to gather peacefully and demand change, never intended those freedoms to be enjoyed by everyone. To a man, the founding fathers were white and wealthy and didn’t want African Americans, women, or white men without property to enjoy the same rights that they enjoyed.

They were hypocrites, dear old Tom Jefferson, James Madison, and President John Adams who jailed newspaper editors who criticized him. Jefferson went after journalists, too, once he got into power. It’s all there in the history books — some of them anyway, the ones that haven’t whitewashed our past.

For more than 100 years, Americans who were against chattel slavery, who denounced the subordination of women, and who condemned the system of wage slavery, were blatantly silenced, censored, arrested, jailed, deported, ostracized, and punished every which way.

All through the nineteenth and for much of the twentieth century, Americans took their lives in their hands when they spoke freely. If they were socialists, communists, or civil rights activists, they were spat-on, clubbed, bloodied, bombed, shot, even killed.

Beginning around the time of World War II, it was widely recognized that an individual couldn’t sue and collect damages if he got in the face of someone else and called him or her a fascist, or a mother——, and was punched. The legal concept came to be known as “Fighting Words” and for decades “Fighting Words” were not protected speech.

All of which brings me to words and images that express contempt for the culture, the religion, and the ethnicity of human beings. They are not protected speech, either. They are words that are tantamount to a physical attack.

For decades, too, we’ve had something called “Hate Speech” in the United States and that’s not protected, either. Call a Chinese woman, or a Congolese man a racial epithet and then beat him or her to a pulp and you’ll be charged not only with assault but with “Hate Speech” and find yourself in prison for a long time.

For too long, members of the dominant culture in the United States felt that they could call members of so-called minority groups whatever names they wanted to call them, such as n—–, as a way to keep them down, keep them in place, and give themselves a sense of superiority, however superficial.

Not surprisingly, members of those minority groups, whether they were Irish or Jews, African Americans or Japanese, didn’t like being called those derogatory names, because names hurt. They hurt more than sticks and stones.

Images hurt just as much if not more than names, and in today’s global world what we say and how we express ourselves travels as quickly as a guided missile all around the world. Images that originate in America have sped thousands of miles and have outraged people in Turkey, Iran, Iraq, Afghanistan, and elsewhere.

This has been going on for decades now. To a large extent the mass media has demonized Moslems, Arabs, and whole populations that live in the Middle East. Is that accidental? It’s probably not.

The First Amendment, as I see it, ought to protect citizens against government censorship. I’m against censorship of all kinds including self-censorship, which is especially pernicious because citizens silence themselves. The state doesn’t have to do it to them.

But our words and our images have real consequences.

Once upon a time, I never would have said this. But I am saying it now: we have to watch what we say if we are to live at peace with one another and not incite violent attacks. Everyone deserves the right not to be assaulted by demeaning words and images and if that means that the First Amendment — which has often been a fake anyway — takes a back seat, so be it.

I used to teach a law class at Sonoma State University and one of the things I would say is that whether to speak or not, and what to say, is something that has to be decided and chosen almost day by day. One day, silence might be appropriate, the next day shouting, the day after that guerilla theater.

After more than 200 years of First Amendment history it’s definitely a thorny issue. It’s not static and never has been. It has evolved, changed directions, come to mean different things to different people. The answer to dangerous speech is not to blot it out, but to have more speech and to thoroughly discuss the issues.

That’s difficult in the United States today because on the major television networks and on a lot of cable stations the dialogue is very limited and very safe and rarely wide open, robust, and uninhibited. It looks to me like there are a lot of stations owned by a few major corporations and the stations don’t criticize or look critically at the American political and economic system.

Does any major station really come out and tell the truth about the war on terrorism, or the banks, or the lies of the major parties and their financial donors? I don’t think so. We have a society that gives lip service to the First Amendment and at the same time engages in First Amendment activities in superficial ways.

Yes, the First Amendment is already more than 200 years old, but it’s still in its infancy, learning to walk, and yes, learning to talk. It might help if we don’t think of it as something that’s written in stone, but rather something that needs to be reconsidered and perhaps rewritten.

Americans need to learn about the media, the laws, and the ethics in much the same way that they are learning about fat and sugar and diet and health. If we don’t allow bodies to be poisoned with chemicals, why should we allow minds to be poisoned by toxic messages?

[Jonah Raskin, professor emeritus at Sonoma State University and the author of biographies of Abbie Hoffman, Allen Ginsberg, and Jack London, is a frequent contributor to The Rag Blog. Read more articles by Jonah Raskin on The Rag Blog.]

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5 Responses to Jonah Raskin : The First Amendment Sucks

  1. Anonymous says:

    It is interesting to contrast the freedom of speech allowed to this scurrilous video with the vigorous prosecution of Muslims who have put anti-American posts on their facebook pages. In fact the Al Awlaki murder by Obama was not because he had any role in actual military operations but because he denounced US intervention in Yemen. So American citizens who are against US intervention and support Muslims right to defend themselves are “terrorists” and can be assassinated legally under the NDAA but videos clearly attacking Muslims are covered by the First Amendment?

  2. Anonymous says:

    “sacrosanct and inviolable” ….
    There is a simple reason why free speech is revered. It keeps people like the author from defining free speech in his own terms. He may want us to back off what we say about Muslims, but There are plenty of others that would like to label criticism of the current dufus-in-chief as hate speech and regulate it. Oh and lets not forget people who would like to label those who oppose gay marriage as not worthy of expressing an opinion. Or those who cling to their guns and religion as spreading “toxic messages”.

    Feel free to rewrite and promote your own personal definition of acceptable free speech.

    But it should be no surprise that any group who makes a serious attempt to “reconsider and perhaps rewrite” free speech protections will be met with fierce and violent objections.

    – Extremist2TheDHS

  3. Anonymous says:

    This is what is known as a “feeler” article. Raskin is testing the waters with his little toe. There was an Op-Ed pieced in the L.A. Times along these lines that was more specific, the crux being that offending Muslims is equivalent to yelling “Fire!” in a crowded theater because the likely outcome is well known. So let’s go ahead and let the First Amendment slip away.
    Raskin and his ilk know the Left’s religious buddies will be not be prosecuted, but of course, Christians will. This has largely been the legacy of Hate Crime laws,
    whites prosecuted, black attacks largely ignored.

  4. Well, it galls me to agree at all with our dear Extremist, and even more with this fellow Anonymous who posted just before me and seems to be watching even weirder TV than Fox News, but the current firestorm in the Islamic world over a childish insult has nothing whatsoever to do with the First Amendment, and in contrast with Bro. Jomo, I DO regard it as “sacred and inviolable.”

    NO, it certainly has not been available to all citizens equally in US history. YES, its preservation is still tenuous, something that must be established every day. Yet Freedom of Speech is not simply some American aberration, it is a fundamental human right, as vital as food, shelter, water, work, and leisure.
    Its lack of recognition in some societies results in repression of women, of minority beliefs and opinions, and irrational behavior where rational speech is forbidden.

    NO we do not have the right to forcibly change these other societies. NOR do they have the right to change us; much less have we any obligation to give up our own human rights! No freedom of speech = no freedom of belief = no freedom; it’s not that complicated.

    I recommend Leonard Pitts of the Miami Herald on this topic.

    btw, Free Speech/Public Access Television is alive and well in Austin, TX and in communities around the country where activists have fought to maintain access to the media for ALL points of view.

    I am proud to have been a part of that struggle for some years here. I outraged many progressive friends by upholding the right of the KKK to have an access show. But it resulted in a plethora of counter-Klan programming that totally overwhelmed their message of hate.

    The best antidote I can imagine to the current furor would be for the US, and other Western nations, to invite a series of distinguished Muslim scholars, clerics, writers, filmmakers, and other cultural workers to the national, international, and internet stage to present their views freely and openly, and for it to become really socially unacceptable among Westerners NOT to listen, watch, and learn. Knowing that most Westerners were genuinely interested in learning about Islam and Islamic culture might go far to defusing the impact of stupid attacks like the video-in-question. And hey Hollywood, do some kind of big budget, respectful biopic of the Prophet (remember how in Ben Hur, Jesus’ face is never shown?), maybe along the lines of “Gandhi”; it would be HUGE!!!

    I take Jonah’s point about Playing Nicely in the world sandbox. The world would be much more pleasant all around if everyone could do so all the time. But as long as there is cat shit in the sand, don’t expect me to shut up about it!

  5. Anonymous says:

    Ms Wizard’s comment was echoed by President Obama in his UN speech. paraphrasing, The best remedy for intolerant speech is more speech.

    Dear Extremist2TheDHS 🙂

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