Clearly there’s quite a lot to consider when assessing the utility to human liberation of haggling in court over fascist and corporate speech rights. But consistent with the minimizing dishonesty of Magic Paper Theory, today’s First Amendment absolutists reduce all objections to attempts at imposing one’s own values on everyone else. “There’s no right to not be offended” they say again and again. But few contests about speech are simply about being offended. They’re about weighing other interests and rights against the right of a person or group to express themselves.
I shouldn’t have to point out that there are many content-based state limits on speech that most absolutists don’t object to. You can’t deliberately provoke a fight. You can’t defame someone. You can’t put explicit sexual material in a store window. You can’t produce or read child pornography. You can’t make overtly sexual remarks to non-consenting coworkers. You can’t make bomb threats. You can’t make death threats. And so on. If empowering the state to regulate speech puts us on a slippery slope, we’ve been on it for over 200 years.
Underlying these acceptable prohibitions is recognition that certain speech in certain contexts is so socially potent that it requires communitarian consideration. Since most absolutists are fine with this, their insistence that the state protect, say, “God Hates Fags” pickets at LGBTQ funerals is less about principle than value judgements about the social potency of anti-LGBTQ speech at a funeral. It is therefore no less an imposition of personal preference than claiming that anti-LGBTQ harassment at a funeral is exceptionally potent and therefore worthy of communitarian consideration. But only the absolutist preference promotes reactionary politics and subjects funeral attendees to abuse.
With truly painstaking simple-mindedness, absolutists render all contested expression equal. If all expression is equal, all “offense” taken is equal too, which means it’s all equally irrelevant, since only the speaker’s interests matter. There is no burden to consider power disparities between speaker and spoken to. The only history that matters is Supreme Court precedent. Hence, for their purposes CPUSA = KKK = NAACP = NAMBLA, a formulation that, in combination with Magic Paper Theory, puts no alliance beyond the pale, and renders no ideology or conduct too cruel or toxic to trivialize.
The answer to bad speech, they say, is more speech. That sounds nice, but let’s say I’m a Muslim and Bill Maher’s routine slanders against me and my loved ones, not only offend, but frighten me. What if I think, with some basis, that he’s fostering prejudice, empowering other Islamophobes, and making an already precarious political and social situation for me and mine worse? Without my own widely watched HBO show, how do I reach an equally large audience to undo the damage? The answer is, I can’t, a fact that seemingly never occurs to free speech absolutists when they’re thoughtlessly reciting their bad speech/more speech bromide while performing their awesomely more principled understanding of liberty.
Pop quiz: This elision of power disparities, this elevation of even the most toxic individual interests over the community, this singular focus on state power, and this positing of a magic greater good that people unwittingly conjure through pursuit of their own narrow interest — where else have we seen this?
If you answered Free Market Libertarianism, give yourself a cookie. Note how the Redskins case, which is as much about property rights as free speech, revealingly merges these two great religions.
Second question: why do people who reject Free Market Libertarianism precisely because of its elision of power disparities, and its magical thinking about “The Market”, uncritically embrace a First Amendment absolutism that argues for itself the exact same way?
That’s a harder one to answer, but one possibility is people can see for themselves what deregulated economic activity looks like. The relationship of First Amendment common law to repression is harder to get the measure of, so Magic Paper Theory touted by admired figures gets accepted on faith. Its wonderfully thought-stopping ahistorical simplicity, along with its appeal to vanity facilitate adoption.
There’s a slippery slope in all of this, but it’s not the one the Magic Paper club is always going on about. It’s from Skokie to Citizen’s United by way of springing Oliver North to God knows what else. Whatever’s going on, it’s either bleeding into other concerns or simply emblematic of a larger phenomenon. First Amendment absolutism’s rank individualism, ahistoricism, and willingness to ally with anyone, is becoming standard across the so-called left, as it fixates on internet privacy, government transparency and freedom of the press, making common cause with billionaires, corporations, nazi trolls, and defense contractors while severing historical ties to communitarian ideals, labor, genuine anti-racism (as opposed to this ACLU-sponsored bullshit), anti-capitalism, and anti-imperialism.
Next: 7. Free Ramsey Orta
- Frat Boys, Redskins and Ramsey Orta
- There’s No Such Thing as First Amendment Absolutism
- Magic Paper Theory
- The White Supremacy Difference
- Precedent Hardly Matters
- Putting the Libertarian in Civil Libertarian
- Free Ramsey Orta