‘I have a First Amendment right to free speech!’ is the refrain of legion politicians, pundits, town hall debaters, and Internet commenters. The charge that said right has been usurped is frequently leveled in cases of voluntary association between private individuals and entities. The imbroglio following MSNBC’s termination of Pat Buchanan earlier this year was a good example. Mr. Buchanan and his supporters (some of whom I hold in the highest esteem) claimed this action undermined free speech and, by natural implication, the integrity of our civic and political culture.
I respectfully disagree. This appraisal is worth discussing because it confuses the true meaning of the United States Constitution. In so many words, unless government is involved, the First Amendment does not apply.
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.
Short, sweet, substantial. Three elements are relevant to our discussion: freedom of speech, freedom of the press, and an implied freedom of association. For our purpose, freedom of the press is virtually indistinguishable from freedom of speech. But what speech is protected under the First Amendment? According to a basic conception of Lockean ethics, that which does not credibly advocate the violation of individual rights to life, liberty, and property. What is permissible speech protected from? Government.
The Bill of Rights was adopted at the behest of Americans worried that the new Constitution did not explicitly offer protections against Federal encroachment. To paraphrase Antonin Scalia, the actions forbidden by the Bill of Rights are the abuses of a tyrant. As David O. Stewart notes in his wonderful book The Summer of 1787: The Men Who Invented the Constitution, James Madison considered the Bill of Rights superfluous and initially opposed it. He reasoned it was unnecessary, given what we now call the Constitution’s libertarian presumption, i.e. that individuals are free by default and government must respect their liberties. Ultimately, Madison acquiesced in the interest of consolidating support for the document he was so instrumental in forging. The zeitgeist was still dominated by vivid memories of tyranny.
The Constitution is a not only a blueprint for our government, it is a guide to understanding the nature of the relationship the framers intended it to have with the governed. Claims of censorship, etc. may be lent gravitas by appeals to the Constitution, but only if the malefactor be government. Freedom of association includes the freedom not to associate. Even if MSNBC fired Mr. Buchanan for opinions he privately held (unlikely though it may be that Mr. Buchanan has ever held an opinion privately), the government would be usurping the network executive’s First Amendment rights by intervening. I am not suggesting that anyone, least of all a cadre of paleo-conservatives, was advocating government action in this case, yet the point stands.
If one objectively, definitively determined truth itself, holding it as the standard for legally-protected speech would risk the freedom of society in a fundamental way. As Madison famously wrote, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” No truth can justify power which enables abuse. We may protest individuals’ decisions to associate or disassociate with each other, but invoking the Constitution risks inappropriate government action. This is a valid concern given public officials’ active involvement in the operations of automakers like General Motors and Chrysler and financial institutions such as Bank of America, even though these firms welcomed public money and the strings attached to it. Who is to say that the same institutions which produced the Fairness Doctrine could not produce regulations by which MSNBC would be compelled to retain Mr. Buchanan by virtue of his heterodox views? The present era of government is marked by limitless possibility in the worst sense. Vigilant Americans of all stripes and stations should choose their words carefully, lest an invitation be perceived.
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