first amendment opinion essay

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 First Amendment to the U.S. Constitution, 1 Footnote U.S. Const. amend. I . viewed broadly, protects religious liberty and rights related to freedom of speech. Specifically, the Religion Clauses prevent the government from adopting laws “respecting an establishment of religion” —the Establishment Clause—or “prohibiting the free exercise thereof” —the Free Exercise Clause. The First Amendment also expressly protects the freedoms of speech, press, peaceable assembly, and petition to the Government.

The Constitution Annotated essays discussing the First Amendment begin with the Religion Clauses, reviewing the history of these clauses before explaining, in turn, the Supreme Court’s interpretation of the Establishment and Free Exercise Clauses. The Religion Clause section ends with an essay exploring the relationship between the Religion Clauses and the Free Speech Clause. The Constitution Annotated then turns to this latter clause, discussing interpretations of the Free Speech Clause before describing Supreme Court cases recognizing constitutional protections for freedom of association. Next, the Constitution Annotated explains the Free Press Clause. The First Amendment essays end by discussing the clauses protecting the freedoms of assembly and petition.

First Amendment Day is an important reminder of the rights we enjoy – and must protect

The first amendment connects us as americans, yet most citizens can’t name its five freedoms – religion, speech, press, assembly and petition..

In this simmering season of division and distrust, there’s one thing that just about all of us agree on: We treasure the First Amendment.

Saturday is First Amendment Day , a day to celebrate the document that allows all Americans – without government interference – to practice a faith or not, speak freely, publish ideas, gather in support or protest, and petition the government for change. It marks the day in 1789 when Congress sent the amendments that became the U.S. Constitution’s Bill of Rights to the states for approval.

To salute the occasion, the Freedom Forum – an organization devoted to fostering First Amendment freedoms for all – will release a survey conducted in July and August 2020, when we asked more than 3,000 Americans how they feel about the First Amendment today. Our respondents came from every corner of the country and spanned age, gender, race and economic background – a true representation of our diverse nation.

Nearly all see 1st Amendment as vital

The big takeaway from the survey, titled "The First Amendment: Where America Stands"? Amid our disagreements on everything from politics to the pandemic, one value unites the vast majority of us: 94% of respondents – across generations and the political spectrum – view the First Amendment as “vital.” 

USA TODAY Opinion: Subscribe to our newsletter for more insights and analysis 

But we don’t agree on much else about it. Some findings surprised us – and we’ve been surveying Americans on this topic since 1997: 

►More than a third of Americans would give up free speech to get rid of hate speech, but an almost equal number support unfettered free speech . 

►69% say social media sites should be held responsible for allowing false or misleading information to be posted. 

►People are equally divided ( 37% to 37% ) over whether business owners should have to fulfill customer requests that violate their religious beliefs, while the remainder of respondents neither agree nor disagree. 

►Nearly 60% say the news media should act as watchdogs on the powerful, but only 14% trust journalists. 

►75% do not believe that government mandates due to COVID-19 infringe on the rights of assembly, speech and religion, but 1 in 4 people disagree.

►In a year when protests over racial injustice swept the nation, most people – 69%  – have never participated in a protest, rally or march. 

►73% of people have signed a petition , but only 14% could name it as one of the five First Amendment freedoms.

Ruhama Fernandez: I’m a Cuban dissident. We need America to stand with us against this communist regime .

Find out more about our survey at   WhereAmericaStands.org

Understanding your rights is vital 

The First Amendment connects us as Americans. It protects our right to express our deepest beliefs in word and action. Yet most Americans can’t name the five freedoms it guarantees – religion, speech, press, assembly and petition. In order to preserve and protect these fundamental rights for future generations, we all need to know, understand, value and defend these freedoms not just for ourselves, but also for each other. Even those with whom we disagree.

The 45 words of the First Amendment guarantee free expression, but the spirit of the First Amendment calls for more: To speak and be heard. To listen.

Because out of the marketplace of ideas more than 200 years ago came the American democracy. It does not equally serve us all. But the freedoms guaranteed by the First Amendment enable us to speak truth to power, shine a light on injustice and ignite – or oppose – change. It is through exercising our First Amendment freedoms we can ensure our democracy lives up to its highest ideals for all Americans.

Anay Remón García: Cubans didn't demonstrate merely because of bread lines or inflation. We want freedom.

On Saturday, celebrate the First Amendment by doing something to promote the diversity of experiences and perspectives that define our democracy. Share your deepest beliefs with someone. Reach across a political divide or your family’s dinner table and debate current events. Support your local news outlet by subscribing. Join a new group on social media and explore perspectives that are different from yours. Sign a petition for a cause you support.

And toast the fact that we all share these First Amendment freedoms, not just when we exercise them for ourselves, but when we defend the rights of others to do the same.

Jan Neuharth is chair and chief executive officer of the Freedom Forum . Follow her on Twitter:  @JanNeuharth

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Freedom of Speech

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

Freedom of speech—the right to express opinions without government restraint—is a democratic ideal that dates back to ancient Greece. In the United States, the First Amendment guarantees free speech, though the United States, like all modern democracies, places limits on this freedom. In a series of landmark cases, the U.S. Supreme Court over the years has helped to define what types of speech are—and aren’t—protected under U.S. law.

The ancient Greeks pioneered free speech as a democratic principle. The ancient Greek word “parrhesia” means “free speech,” or “to speak candidly.” The term first appeared in Greek literature around the end of the fifth century B.C.

During the classical period, parrhesia became a fundamental part of the democracy of Athens. Leaders, philosophers, playwrights and everyday Athenians were free to openly discuss politics and religion and to criticize the government in some settings.

First Amendment

In the United States, the First Amendment protects freedom of speech.

The First Amendment was adopted on December 15, 1791 as part of the Bill of Rights—the first ten amendments to the United States Constitution . The Bill of Rights provides constitutional protection for certain individual liberties, including freedoms of speech, assembly and worship.

The First Amendment doesn’t specify what exactly is meant by freedom of speech. Defining what types of speech should and shouldn’t be protected by law has fallen largely to the courts.

In general, the First Amendment guarantees the right to express ideas and information. On a basic level, it means that people can express an opinion (even an unpopular or unsavory one) without fear of government censorship.

It protects all forms of communication, from speeches to art and other media.

Flag Burning

While freedom of speech pertains mostly to the spoken or written word, it also protects some forms of symbolic speech. Symbolic speech is an action that expresses an idea.

Flag burning is an example of symbolic speech that is protected under the First Amendment. Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the Reagan administration.

The U.S. Supreme Court , in 1990, reversed a Texas court’s conviction that Johnson broke the law by desecrating the flag. Texas v. Johnson invalidated statutes in Texas and 47 other states prohibiting flag burning.

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

• Obscene material such as child pornography
• Plagiarism of copyrighted material
• Defamation (libel and slander)
• True threats

Speech inciting illegal actions or soliciting others to commit crimes aren’t protected under the First Amendment, either.

The Supreme Court decided a series of cases in 1919 that helped to define the limitations of free speech. Congress passed the Espionage Act of 1917, shortly after the United States entered into World War I . The law prohibited interference in military operations or recruitment.

Socialist Party activist Charles Schenck was arrested under the Espionage Act after he distributed fliers urging young men to dodge the draft. The Supreme Court upheld his conviction by creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, they viewed draft resistant as dangerous to national security.

American labor leader and Socialist Party activist Eugene Debs also was arrested under the Espionage Act after giving a speech in 1918 encouraging others not to join the military. Debs argued that he was exercising his right to free speech and that the Espionage Act of 1917 was unconstitutional. In Debs v. United States the U.S. Supreme Court upheld the constitutionality of the Espionage Act.

Freedom of Expression

The Supreme Court has interpreted artistic freedom broadly as a form of free speech.

In most cases, freedom of expression may be restricted only if it will cause direct and imminent harm. Shouting “fire!” in a crowded theater and causing a stampede would be an example of direct and imminent harm.

In deciding cases involving artistic freedom of expression the Supreme Court leans on a principle called “content neutrality.” Content neutrality means the government can’t censor or restrict expression just because some segment of the population finds the content offensive.

Free Speech in Schools

In 1965, students at a public high school in Des Moines, Iowa , organized a silent protest against the Vietnam War by wearing black armbands to protest the fighting. The students were suspended from school. The principal argued that the armbands were a distraction and could possibly lead to danger for the students.

The Supreme Court didn’t bite—they ruled in favor of the students’ right to wear the armbands as a form of free speech in Tinker v. Des Moines Independent School District . The case set the standard for free speech in schools. However, First Amendment rights typically don’t apply in private schools.

What does free speech mean?; United States Courts . Tinker v. Des Moines; United States Courts . Freedom of expression in the arts and entertainment; ACLU .

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Research & Learn

Table of contents, first amendment overview essays.

The essays included in this collection give overviews of some of the most important areas of First Amendment law and scholarship. FIRE hopes that these essays explain the basics of First Amendment case law and jargon in a succinct, yet informative manner. This collection will expand on a regular basis, so please check back for more content.

Chilling Effect

The "chilling effect" refers to a phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation. Chilling effects generally occur when a law is either too broad or too vague. Individuals steer far clear from the reaches of the law for fear of retaliation, prosecution, or punitive governmental action. Read more about the chilling effect .

COVID-19 Emergency Measures and the First Amendment

The pandemic caused by the pervasive spread of the virus known as COVID-19 has placed significant pressure on government officials to act quickly to try to save lives and slow the spread of the virus. Many officials have responded with significant restrictions in the form of emergency stay-at-home orders, executive orders closing all but “essential” businesses, and bans on public gatherings — often of groups of more than 10 people. . . No matter one’s political beliefs, this time has also placed significant strains on First Amendment freedoms. Read more about COVID-19 emergency measures and the First Amendment .

Defamation refers to false statements of fact that harm another’s reputation. It encompasses both libel and slander. Libel generally refers to written defamation, while slander refers to oral defamation. Read more about defamation .

Fighting Words

The First Amendment may protect profanity directed against another. Then again, such intemperate speech may fall into a narrow, traditionally unprotected category of expression known as “fighting words.” Read more about fighting words .

Freedom of the Press

Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions, defines the “freedom of the press” guaranteed by the First Amendment. What we mean by the freedom of the press is, in fact, an evolving concept. It is a concept that is informed by the perceptions of those who crafted the press clause in an era of pamphlets, political tracts and periodical newspapers, and by the views of Supreme Court justices who have interpreted that clause over the past two centuries in a world of daily newspapers, books, magazines, motion pictures, radio and television broadcasts, and internet content. Read more about freedom of the press .

K–12 Expression and the First Amendment

Public school students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines (1969). Such rights must, however, be considered in the context of “the special characteristics of the school environment.” This means that while public school students possess free speech rights at school, school officials can regulate speech more as educators than governments can as sovereign. Read more about K–12 expression and the First Amendment .

Nude Dancing

The First Amendment protects much more than the spoken or printed word. It also protects various forms of symbolic speech and expressive conduct. The Supreme Court has ruled that the display of a red flag, the wearing of a black armband, the burning of the American flag and yes, even nude performance dancing are forms of expression that when restricted, require First Amendment review. Read more about nude dancing and the First Amendment.

Overbreadth

Overbreadth is a supremely important concept in First Amendment law and a key tool for constitutional litigators. A law is too broad—or overbroad—when it not only covers speech that ought to be proscribed but also penalizes speech that should be safeguarded. Read more about overbreadth . 

Secondary Effects Doctrine

The secondary effects doctrine allows government officials to treat patently content-based laws as content-neutral. The animating logic is that government officials are not suppressing speech because of its content but because of adverse side effects associated with the speech, such as increased crime or decreased property values. Read more about the secondary effects doctrine . 

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115 First Amendment Essay Topic Ideas & Examples

Inside This Article

The First Amendment of the United States Constitution guarantees the right to freedom of speech, religion, press, assembly, and petition. This fundamental right is essential to a democratic society, allowing individuals to express their opinions, beliefs, and ideas without fear of government censorship or retaliation.

If you are studying the First Amendment in school or simply interested in exploring the various issues it encompasses, here are 115 essay topic ideas and examples to help you get started:

• The history and significance of the First Amendment
• The impact of the First Amendment on American society
• The limitations of the First Amendment
• The evolution of free speech rights in the United States
• The role of the First Amendment in protecting political dissent
• The intersection of free speech and hate speech
• The First Amendment and social media
• The First Amendment and campus speech codes
• The First Amendment and government surveillance
• The First Amendment and national security
• The First Amendment and religious freedom
• The First Amendment and the separation of church and state
• The First Amendment and freedom of the press
• The First Amendment and the role of the media in a democracy
• The First Amendment and censorship
• The First Amendment and obscenity laws
• The First Amendment and commercial speech
• The First Amendment and campaign finance laws
• The First Amendment and the right to protest
• The First Amendment and the right to assemble
• The First Amendment and the right to petition the government
• The First Amendment and freedom of expression in the arts
• The First Amendment and academic freedom
• The First Amendment and the rights of students in public schools
• The First Amendment and workplace speech rights
• The First Amendment and the right to privacy
• The First Amendment and the right to anonymous speech
• The First Amendment and the right to protest on public property
• The First Amendment and the right to access government information
• The First Amendment and the right to a free and fair trial
• The First Amendment and the right to legal representation
• The First Amendment and the right to access the courts
• The First Amendment and the rights of journalists
• The First Amendment and the rights of whistleblowers
• The First Amendment and the rights of public employees
• The First Amendment and the rights of prisoners
• The First Amendment and the rights of immigrants
• The First Amendment and the rights of people with disabilities
• The First Amendment and the rights of LGBTQ individuals
• The First Amendment and the rights of religious minorities
• The First Amendment and the rights of racial minorities
• The First Amendment and the rights of women
• The First Amendment and the rights of children
• The First Amendment and the rights of the elderly
• The First Amendment and the rights of the homeless
• The First Amendment and the rights of individuals with mental illness
• The First Amendment and the rights of individuals with substance abuse disorders
• The First Amendment and the rights of individuals with physical disabilities
• The First Amendment and the rights of individuals with intellectual disabilities
• The First Amendment and the rights of individuals with developmental disabilities
• The First Amendment and the rights of individuals with sensory disabilities
• The First Amendment and the rights of individuals with communication disabilities
• The First Amendment and the rights of individuals with learning disabilities
• The First Amendment and the rights of individuals with cognitive disabilities
• The First Amendment and the rights of individuals with emotional disabilities
• The First Amendment and the rights of individuals with behavioral disabilities
• The First Amendment and the rights of individuals with social disabilities
• The First Amendment and the rights of individuals with mental health disabilities
• The First Amendment and the rights of individuals with substance abuse disabilities
• The First Amendment and the rights of individuals with physical health disabilities
• The First Amendment and the rights of individuals with sensory health disabilities
• The First Amendment and the rights of individuals with communication health disabilities
• The First Amendment and the rights of individuals with learning health disabilities
• The First Amendment and the rights of individuals with cognitive health disabilities
• The First Amendment and the rights of individuals with emotional health disabilities
• The First Amendment and the rights of individuals with behavioral health disabilities
• The First Amendment and the rights of individuals with social health disabilities
• The First Amendment and the rights of individuals with substance abuse health disabilities

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First Amendment rights provide Americans broad leeway, but there are also limitations

We live in a free society and make independent decisions, so long as they do not violate the inherent freedoms of others..

• Paul G. Summers, a lawyer, is a former appellate and senior judge, district attorney general, and the attorney general of Tennessee.

Editor's note: This is a regular feature on issues related to the Constitution and civics education  written by Paul G. Summers,  retired judge and state attorney general.

The U.S. Constitution is the supreme law of America. Amendments are part of the Constitution. The first ten Amendments, or Bill of Rights, were submitted to the state legislatures in 1789 and ratified in 1791.

Our Constitution provides for three separate branches of government: legislative, executive and judicial. The first two are political; the judiciary is not.

Judges must be independent; follow the rule of law; and act as checks and balances on abuse of power by any branch. The Supreme Court ultimately decides whether a law or activity of any of the three branches of government comports with the Constitution.

The independence of the third branch is the crown jewel of our democratic republic. Amendment I says:

“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.” 

We Americans must always strive to keep that crown jewel of our democratic republic.

More civics education: U.S. Constitution offers this nation structure, direction and strong institutions

There are limits to the First Amendment

The First Amendment prohibits any governmental interference regarding freedoms of religion; speech; the press; peaceful assembly; and ability to petition our government. It prohibits any laws that create a national religion or hinders the free exercise of religion, abridge freedom of speech or of the press (media publication). This Amendment prohibits any law that interferes with people who peaceably assemble or petition our government over issues or grievances.

The First Amendment has been interpreted by the Supreme Court as applicable to the federal government and the states, including political subdivisions, pursuant to the Due Process provision of the Fourteenth Amendment.

The First Amendment has limits - particularly if another person’s rights might be violated. Although the amendment “separates church from the state,” there are limits. For example, someone could not injure or harm another even if they claimed such injury was “part of my religion.”

Likewise, bus transportation for religious schools generally does not violate the Establishment Clause of the First Amendment.

Most speech is constitutional, even if it hurts somebody’s feelings; or they disagree. But all speech is not permitted. For example, laws prohibiting actual threats to public officials are forbidden, as in a threat to a federal judge. Likewise, some pornographic laws are constitutional. Some are not.

Finally, it is obvious that one can peaceably assemble or petition the government, but one cannot do it violently. One must use common sense and discretion.

Here’s how the politicians and the judges differ

We live in a free society and make independent decisions, so long as they do not violate the inherent freedoms of others. In case of doubt or argument, our Supreme Court makes the final decision. Congress and the President decide on policies and the laws, and the Court decides on constitutionality.

Our Founding Fathers were not only smart, but clairvoyant.

We continue with the Second Amendment in the next article.Reading and studying the Constitution and Declaration of Independence are times well spent.

We applaud the hard work and diligence of our dedicated readers. Both this publication and the author strive to be nonpartisan and objective. Please understand that the interpretations involving documents are that of the author. Others may have different interpretations. We always welcome comments.

Paul G. Summers, a lawyer, is a former appellate and senior judge, district attorney general, and the attorney general of Tennessee. Raised in Fayette County, Judge Summers resides in Nashville and Holladay.

91 First Amendment Essay Topic Ideas & Examples

🏆 best first amendment topic ideas & essay examples, 👍 good essay topics on first amendment, 🥇 interesting topics to write about first amendment, ❓ first amendment essay questions.

• Cyberbullying and the First Amendment Under the geographical approach, the defendant can argue that since the event in question occurs online and outside of school property, it is covered by the First Amendment and the school has “no authority to […]
• Violent Video Games and First Amendment Protection Violent games appear to be a legitimate type of media with its right for free expression; however, minors should also be protected from the violent and sexual content of video games because they lack media […] We will write a custom essay specifically for you by our professional experts 808 writers online Learn More
• Analysis of the Case: Violation of the First Amendment History of the case: The candidate filed a lawsuit in the Maryland Circuit Court alleging violations of the First and 14th Amendments to the U.S.
• First Amendment: Religion and Education The right to education is protected by human rights legislation guaranteeing to adapt education to the requirements of individuals and communities that are evolving and to the needs of students in their varied socio-cultural contexts.
• Vaccination in the Context of the First Amendment The purpose of this paper is to review the dilemma in the context of the First Amendment and the free exercise of religion.
• The First Amendment: Free Speech and Education However, this is the case only “unless school authorities have reason to believe that such expression will substantially interfere with the work of the school or impinge upon the rights of other students”.
• Pornography or Obscenity and the First Amendment Amendment 1 of the US Constitution states that the “Congress will make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, […]
• The First Amendment – Religion and Expression In the ruling of Skokie case, the Supreme Court of the United States ruled in favor of the residents of Skokie, although it still allowed the planned marching by the NSP to go no.in this […]
• First Amendment Right of Free Speech in the USA In this case, it is seen that the Public Law of New Hampshire which bans under punishment “any offensive, derisive or annoying word to any other person who is lawfully in any street or other […]
• Free Speech in the First Amendment The first amendment of the Constitution states, “Congress will 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 […]
• Religious Establishment Clause of the First Amendment Therefore, based on the theoretical application of the Constitution, the chosen case violates the Religious Establishment Clause of the First Amendment to the U.S.
• First Amendment in the US Modern Justice System Also, the paper discusses the significance of the verdict passed by the Supreme Court in each case and their relevance or influence on the rights of American citizens today.
• Does Title VII Conflict With the First Amendment The government is not justified to disallow religious expression at workplaces by the Establishment Clause of the First Amendment. Title VII statute and the First Amendment both provide protection for an employee’s religious rights.
• Founding Fathers Religion: The First Amendment Role in the Church-State Separation As a result, a resolute transformation from the Puritan Fathers in 1639, who uphold the religion as a foundation of any society, to the Founding Fathers in 1787, who accepted freedom of religion as an […]
• Journalism, the First Amendment and Egypt This essays suggests that the First Amendment freedom of the press clause has transcended its physical boundaries and now functions as a protective ideological bubble not only for American journalists but for journalists all over […]
• First Amendment: Commercial and Political Free Speech However, the degree to which the First Amendment protects commercial speech is not the same as that for other forms of speech protected by the Amendment.
• What the Founders Meant by the First Amendment? The first amendment was written over 200 years ago by the founders who wanted to protect both the State and religion from interfering in each others tasks.
• Free Speech: First Amendment Obscenity is one of the exceptions, according to the US Miller Test, obscenity is a test used by Supreme Court to determine if an expression or a speech can be termed obscene and whether it […]
• On the First Amendment to the U.S. Constitution The freedom that Americans experience comes at a price because there are conflicts and problems that arise from the interpretation and implementation of the First Amendment, however, many legal experts are saying that it is […]
• The Free Exercise Thereof: Freedom of Religion in the First Amendment The Freedom of Religion clause in the First Amendment represents one of the few official documents on the planet that corroborates free will, specifically, the right to choose, in the arena of religion.
• US Constitution Reflections on the First Amendment Paper The first amendments made on the constitution of the United States of America in the year 1789 concerned the bill of rights.
• First Amendment Rights and Access to Opinions
• Censorship and the First Amendment: The American Citizen’s Right to Free Speech
• The First Amendment and Its Impact on Education
• Should the First Amendment Stop Protecting Hate Speech
• The First Amendment Speaks on the Freedoms of Religion
• Interpreting the First Amendment of the Constitution
• Should Racist Speech Enjoy Protection Under the First Amendment
• How the First Amendment Rights Have On Advancing Democracy
• The First Amendment and the Constitutional Freedoms in American Schools
• The First Amendment and Conservative Rulings of the Supreme Court
• Ever-Changing Freedoms: The First Amendment of the American Constitution and Challenges It Faces
• How the First Amendment Protects Freedom of Speech
• The First Amendment and Its Impact on Media
• Case Problems Involving the First Amendment
• The First Amendment and Its Legal Constrains
• Banning Books Goes Against the First Amendment
• Federal District Court Alleging First Amendment Violations
• The First Amendment and Label Drug Promotion
• Discussing Three Freedoms From the First Amendment
• The First Amendment and Its Impact on Language
• Public Safety Outweigh Petitioner’s First Amendment Right
• The Ambiguity and Confusion From the First Amendment
• The First Amendment and the American Judiciary
• Civil Rights and First Amendment
• Cyberbullying and the First Amendment
• Does the First Amendment Affect Your Livelihood
• The First Amendment and Right to Privacy
• Net Neutrality and the First Amendment: Who Has the Right to Free Speech
• Neo-Nazis and Their First Amendment Rights
• Public High School Students Have the First Amendment Right
• Espionage Act Conflicts First Amendment Rights in Wikileaks Case
• Comparing Our First Amendment Rights to the Rights of Those in George Orwell’s 1984
• The Role and Importance of the First Amendment of the Constitution
• First Amendment Rights and Pragmatic Solutions
• The First Amendment: History and Development
• First Amendment Rights, Privacy, and the Paparazzi
• The First Amendment Constitution on the Freedom of Expression
• The Relation Between the First Amendment and Music Censorship
• The First Amendment Anti-discrimination Law
• Does the First Amendment Protect False Campaign Speech
• What Is the Main Purpose of the First Amendment?
• How Free Speech Under the First Amendment Developed?
• What Is the Connection Between Anti-semitism and the First Amendment?
• Does Banning Books Violate the First Amendment?
• Was the First Amendment to the US Constitution Prohibition?
• What Are the First Amendment Issues?
• Does the First Amendment Guarantee the Right of American Citizens to Freedom?
• How Does Censorship Conflict With First Amendment Freedom of Speech?
• What Rights Does the First Amendment Guarantee to Citizens?
• Does the First Amendment Govern Cyberbullying?
• Did President Hoover Limit the First Amendment Rights of the Bonus Army?
• What Are the First Amendment Freedoms?
• Does the Espionage Act Conflict With First Amendment Rights?
• What Changes Did the First Amendment Make to the Constitution?
• How Does the First Amendment Guarantee Freedom of the Press?
• What Is the Significance of the First Amendment to Civil Society?
• What Is the Work of the First Amendment Committee?
• How Does the Supreme Court Interpret the First Amendment?
• What Religious Cases Does the First Amendment Control?
• How Are First Amendment Rights Applied and Limited?
• Does the First Amendment to the US Constitution Regulate Ever-Changing Freedoms?
• How Do First Amendment Rights Affect the Development of Democracy?
• What Is the Interpretation of the First Amendment to the Constitution?
• Does the First Amendment Affect Your Livelihood?
• Does the First Amendment Limit the Government’s Power?
• What Inappropriate Words Should Be Removed From the First Amendment?
• Does Public Safety Override a Plaintiff’s First Amendment Right?
• Should Rap Songs Be Protected by the First Amendment?
• Does the First Amendment Protect False Campaign Speech?
• Should Racist Speech Enjoy Protection Under the First Amendment?
• Chicago (A-D)
• Chicago (N-B)

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Essay: First Amendment Principles and Jefferson’s “Wall”

First Amendment Principles and Jefferson’s “Wall”

Directions: Read the essay and answer the critical thinking questions.

The First Amendment, ratified in 1791, provided that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.…” At the time the Constitution and Bill of Rights were ratified, the limits they placed on government applied only at the national level. States were free to maintain their own established churches, and many did.

Thomas Jefferson and the Danbury Baptists

In 1801, the Danbury Baptists of Connecticut wrote to President Thomas Jefferson. The Baptists were a religious minority in Connecticut. They expressed their hope that the ban on religious establishment at the federal level would inspire states to disestablish their churches as well. Jefferson was no stranger to debates about the relationship between religion and government. Years before, he had led his home state of Virginia in the process of ending its official church. As President, Jefferson had refused to proclaim national days of prayer or thanksgiving, something that both of his predecessors, George Washington and John Adams, had done.

In his response to the Danbury Baptists, Jefferson began by asserting his view of religion as a matter “ between Man & his God.” Jefferson drew a distinction between actions and opinions, saying the government had no authority over the latter. The President continued by explaining his view of the meaning of the First Amendment. The First Amendment had built a “wall of separation between Church and State,” he wrote. Jefferson did not comment on any state matters.

The Supreme Court

In 1878, the Supreme Court first quoted Jefferson’s letter as a way of interpreting the Free Exercise Clause of the First Amendment. In this case, Reynolds v. United States , the Court upheld a federal law banning bigamy (plural marriage). The Court referenced Jefferson’s letter, asserting that Congress could not outlaw “mere opinion” but could indeed punish “actions which were in violation of social duties or subversive of good order.” Even though some believed plural marriage was a religious duty, the Court held that Congress had the constitutional power to ban marriage to more than one person. In later Supreme Court decisions, the Court clarified government’s power to regulate religious exercise if it could demonstrate a compelling interest.

The case of Reynolds v. United States concerned a federal law, and whether that law abridged the First Amendment. The Fourteenth Amendment, ratified in 1868 to protect the rights of freedmen from abuse by state governments, broadened the way the Bill of Rights would be applied. The Fourteenth Amendment contains a clause preventing states from infringing on the life, liberty, or property of individuals without due process of law. The Due Process Clause, as it is known, has been used by the Supreme Court to apply (or “incorporate”) most Bill of Rights provisions to the states.

The Supreme Court applied the First Amendment’s ban on government establishment of religion to the states in Everson v. Board of Education (1947). In this case, the Court held that New Jersey did not violate the Establishment Clause by paying back the parents of Catholic school students for the cost of busing their children to school. Quoting Thomas Jefferson, the majority wrote: “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’” The Court continued, reasoning that the First Amendment “requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.” Since the law was part of a general program to get all children safely to school, the Court found no First Amendment violation.

The Court used the “wall” metaphor in another landmark ruling—this time to strike down a state law. In Engel v. Vitale (1962), the Court held that New York could not constitutionally require public school students to begin each day by reciting a state-composed prayer. The Court again used Jefferson’s language, saying that “the State’s use of the Regents’ prayer in its public school system breaches the constitutional wall of separation between Church and State.” The Court reasoned that the First Amendment’s “ prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”

Jefferson’s “Wall”

Jefferson’s phrase “wall of separation between church and state” is not in the Constitution or Bill of Rights but has become so widely known that it is sometimes mistaken for the First Amendment. The Supreme Court has held that Jefferson’s writings “may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment.” Jefferson was a leading Founder and exchanged letters with James Madison—his partner in ending the religious establishment in Virginia—on the subject of a bill of rights. In Reynolds v. United States , the Court noted that the letter came from “an acknowledged leader of the advocates” of the First Amendment.

Some scholars question the claim that Jefferson’s letter is authoritative. Jefferson did not attend the Constitutional Convention and played no formal role in drafting or debating the First Amendment. Chief Justice William Rehnquist, dissenting in Wallace v. Jaffree (1985), argued that judges should not use the metaphor as a guide: “The greatest injury of the ‘wall’ notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights.” Rehnquist points to what he believes are confusing and contradictory rulings that have proven the metaphor is “useless as a guide to judging. It should be frankly and explicitly abandoned.”

The debate about the “wall”—whether it exists and, if so, where it should stand and how high it should be—continues to this day.

CRITICAL THINKING QUESTIONS

• What famous letter does the phrase “wall of separation between church and state” come from?
• Name one Free Exercise Clause case and one Establishment Clause case in which the Supreme Court quoted Jefferson’s letter.
• What should guide citizens, lawmakers, and judges as they approach the task of understanding the Founding documents? The text and only the text of the document in question? Legislation from the same time period? Official writings? Supreme Court precedents? Public opinion? Something else? Explain.

University of Cincinnati Law Review Blog

Student and Practitioner Legal Scholarship Online

You Don’t Say: American First Amendment Protection of Hate Speech

Photo by Aaron Burden on Unsplash

Logan Kline, Associate Member, University of Cincinnati Law Review

Part One of a Two-part series comparing the American and Canadian systems of regulating hate speech.

I. Introduction

Despite being heralded as a pillar of the American conception of freedom, the First Amendment is an outlier when compared to the jurisprudence of the majority of other nations around the world. [1] Just to the north, the Canadian legal system takes a far more interventionist approach to the regulation of speech, with laws that prohibit various forms of expression such as hate speech. [2] Even the United States does not recognize an absolute right to unfettered speech, but the American threshold for acceptable speech is much more lenient than most others, including our neighbors to the north. [3]

The regulation of speech, specifically hate speech, is a hotly contested and often-debated subject. In light of the ambient public discourse, clarification of the scope of this article is crucial. First and foremost, hate speech and its progeny are abhorrent and an affront to civility. This is not in any capacity a defense of hate; it is a study of two contrasting approaches to fighting it, paired with an analysis of the effectiveness of each. By the end of this two-part article series, the goal is for each side to have been examined thoroughly enough to provide insight into the thought process behind both the American and the Canadian approach to the regulation of hate speech. Ultimately, the argument is not for the Canadian or American model, but instead it is against the common modern sentiment that positions one as a straw man to be effortlessly disposed of. Both sides have valid perspectives, so the goal of this series is to steel man each argument against the other, and argue that each is valid within its own legal system and premise of speech.

II. What Is Hate Speech?

Before diving into an analysis of the regulation of hate speech across Northern America, it is important to define the term. However, hate speech is not defined under U.S. law as it is not an outlawed class of language. Thus, it is not formally differentiated from any other protected speech in the United States. The United Nations in their “Strategy and Plan of Action on Hate Speech” memorandum defined hate speech as “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.” [4]

III. The United States’ Approach

In the United States, freedom of speech is one of the core tenets set forth by the nation’s founders. [5] The First Amendment reads: “Congress shall make no law… abridging the freedom of speech…” [6] However, the freedom of speech is not unlimited. [7] American law has held since the early 1900s that speech that actively incites violence or otherwise creates danger is not covered by the protection of the First Amendment. [8]

For example, in Schenck v. U.S. , Justice Holmes asserted that Congress has an interest in preventing words “of such a nature as to create a clear and present danger that they will bring about the substantive evils.” [9]   Justice Holmes further substantiated this concept by providing a now famous example: even under the most stringent of speech protections, a person cannot falsely yell “fire” in a crowded theater. [10] The Schenck decision provided this general test to be applied to restrictions on speech, known as the “clear and present danger” test. [11] The United States Supreme Court has since refined and adjusted this test through numerous cases, but the general concept that speech inciting violence and danger is unprotected remains in American jurisprudence today. [12]

Further, the United States Supreme Court has held that openly offensive speech and hate speech do not inherently cross into inciting violence or danger, and thus are protected under the United States Constitution. [13] In Cohen v. California , Justice Harlan wrote that offensive speech must be protected because “one man’s vulgarity is another’s lyric.” [14] On the topic of hate speech specifically, the Supreme Court has decided a variety of cases outlining exactly what is, and what is not, protected. [15]

One preeminent example of the Supreme Court’s position on hate speech manifests in R.A.V. v. City of St. Paul, Minnesota . [16] In R.A.V. , the defendants burned a cross on the property of an African American resident, and the city prosecuted under a city ordinance outlawing hate crimes. [17] Justice Scalia delivered the opinion for the Court, striking down the city’s ordinance and ruling it unconstitutional on its face because “it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.” [18] The Court went on to hold that the government cannot punish speech and expressive conduct only because it disapproves of the ideas expressed. [19] Justice Scalia noted the potential negative effect such a statute could have on public discourse in writing that: “[The City of] St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.” [20] This holding had far-reaching implications, striking down not only this hate speech prohibition, but also hate speech legislation across the nation. [21]

After the R.A.V. decision, the nation was left wondering whether a state can outlaw cross burning specifically. In answer to this, Justice O’Connor delivered the opinion in Virginia v. Black , holding that cross burning could be banned if it was carried out with the “intent to intimidate.” [22] However, Justice Thomas in his dissent aptly noted that burning a cross is always an act meant to intimidate. [23] In Virginia v. Black , the Court considered the intimidation and threat of violence that comes with the burning of a cross. [24] However, some scholars retort that all hate speech comes with some threat of aggression or violence by the nature of the linguistic charge of the words used. [25]

In total, the American approach generally protects hate speech, so long as the speech does not fail one of the other tests set forth by the U.S. Supreme Court, such as the clear and present danger test in Schenck v. U.S. While hate speech may be limited if it presents danger or otherwise incites violence, the general premise is that pure hate speech is protected expression under the First Amendment of the U.S. Constitution.

IV. Strengths and Weaknesses of the United States’ Approach

The American approach relies on the concept of the Marketplace of Ideas, which derives from Justice Holmes’ language in the dissent of Abrams v. United States. [26] The Marketplace of Ideas theory holds that the best ideas will win out through competition if they are just allowed to enter the public discourse and relies on the premise that, given an open forum for discourse, the strongest and best ideas will prevail. [27] Reason appears to be the currency of this intellectual marketplace. In other words, ideas supported by more sound reason are the strongest that survive the marketplace.

Contemporary philosopher and cognitive neuroscientist Dr. Sam Harris conveyed the importance of open discourse and the role reason plays as follows:

I think the need is to be able to talk about the most important questions in human life without losing our connection to one another…We need to able to hear people out, we need to be able to reason about everything, because reasoning is the only thing that scales. It’s the only way of talking about a problem which stands the chance of being universalizable. [28]

In the context of the Marketplace of Ideas model, the result is well-reasoned arguments rising to the peak of the “market” through virtue of being the most logically sound.

Proponents of the American approach to hate speech would therefore argue that the government should not decide what does and does not qualify as acceptable discourse. [29] Instead, the morally-bankrupt ideas that truly are hate speech will be filtered out and exposed as weak in light of reason. [30] In this way, the dangerous and hateful ideas are dismantled out in the open for the world to see their unreasonable nature. [31] Others who may have similar thoughts then see their internal biases dismantled in a public way and can come to the conclusion that they are wrong. Otherwise, hateful people may resort to whispering amongst themselves in the shadows of society and spreading insidious ideologies like an undiagnosed disease. [32] If these ideas are allowed to spread beneath the surface in private forums, they can fester and grow to the point where they can no longer be easily cured by reason. [33] By the time the public realizes the societal disease is present, it has already cemented itself as a hate group.

The American approach also does not rely on the government to proscribe what is and is not hate speech. The danger of allowing the government to censor what it classifies as hate speech is that the term is relatively amorphous. [34] Lee Rowland, Senior Staff Attorney for the American Civil Liberties Union Speech, Privacy, and Technology Project, noted the danger of allowing the government to take on the role of censor as follows:

Your idea of “hate speech” may not be the government’s idea of “hate speech.” I know mine isn’t. But even if you agree with [the current president] — are you sure our next president will agree with your worldview? You shouldn’t be. That’s why I’m a true believer in the First Amendment. I am an anti-authoritarian. And I know that the government has historically wielded its raw power to silence those who speak truth to power. [35]

Therefore, rather than have government draw lines to govern the actions of individuals in their everyday conversations, the local community and members of the conversation themselves should act as their own censor. For example, if someone says something hateful, the first step should be to be for those involved to diffuse the situation on an interpersonal level. [36]

A conservative perspective on the American approach would argue that it is not the role of the federal government to step into the everyday lives of its citizens and limit what they can and cannot say. Instead, communities need to foster a sense of accountability in rejecting bias and hate wherever it manifests. There is little doubt that hate speech exists and should be stopped, but the issue at hand is who will define it, who will draw the lines of acceptability, and who will enforce it. Proponents of the American model reject the idea that legislators in Washington D.C. or anywhere should be able to place a linguistic fetter on what the entire nation can and cannot say. [37] Instead, personal accountability and other mechanisms of discourse, including the Marketplace of Ideas, should govern social acceptability. Finally, if the standard of whether something qualifies as hate speech or not is whether it offends, then many of the most forward-thinking, revolutionary ideas would be quelled. [38] Open discourse is necessary to drive societal collective knowledge forward, and before this can happen, hateful ideas need to be actively defeated in an open forum so that any who may silently hold discriminatory or insidious beliefs can learn and grow beyond them. [39]

Critics of the Marketplace of Ideas note that allowing hate speech to enter the public discourse results in significant harm done before logic can intervene. [40] This hateful language can be so demeaning that it does not engage with the public conversation on the level of reason, but instead subverts it by intimidating targets and silencing discussion. The result is not the defeat of hate speech through reason, but the stymying of rational conversation through intimidation and bigotry. To extrapolate the metaphor of a marketplace, some may argue that those who bring hate speech to the marketplace are bringing a weapon into the negotiation.

As for the argument that protecting hate speech allows it to come to the surface and be eliminated by better arguments, some critics assert that in the modern age of social media, public hate speech can actually attract others harboring internal resentment and embolden them to be more open in their bigotry. [41] Rather than serving as water to douse the flame, the public nature of the discussion stokes it into an inferno. [42] Writing for NPR, David Shih noted that the Marketplace of Ideas relies on several flawed assumptions. [43] According to Shih, one such falsehood, which he referred to as the “empathetic fallacy,” is that people actually care as a society to fight injustice and recognize hateful language when it manifests. [44] Further, Shih argued that racists and other peddlers of hate adapt and use code words as “dog whistles” to signal racist messaging and “game the system.” [45]

One fundamental disagreement in premise that could explain the competing perspectives on the Marketplace of Ideas model is whether speech itself, without incitement or threat of physical aggression, can constitute violence. If it cannot, then it logically follows that hate speech, no matter how abhorrent, should be weathered in order to keep the public discourse as unfettered as possible. However, if speech itself can be violence, then the logical conclusion would be to prevent the violence by stymying the hate speech. Further, if speech itself is violence and places targets in danger, the Supreme Court may need to reevaluate its test to encompass this form of harm.

In an article for The Washington Post entitled Why America Needs a Hate Speech Law , Richard Stengel wrote on the various criticisms of the American system and Marketplace of Ideas model. [46] Stengel argued that the Marketplace of Ideas is deeply flawed in that “no one ever quite explained how good ideas drive out bad ones, how truth triumphs over falsehood.” [47] He went on to write that this process would need to be “magical” in order to actually work properly. [48] Stengel argued that even if hate speech itself does not “pull the trigger,” it creates an environment that makes violent acts such as domestic terrorism more likely. [49] Further, he argued that hate speech enables discrimination and diminishes tolerance. [50]

The difference in Dr. Sam Harris’ perspective and that of Richard Stengel appears to spring from a fundamental difference in opinion on the capabilities of the American public to logically dismantle hate. Dr. Harris asserted that, when reason is juxtaposed with irrational thought, the reason will prevail. [51] However, Stengel wrote that not only does this not actually work in practice, but it also assumes a sterile, academic environment for discourse that does not exist in the social media era. [52] To support this, Stengel cited several studies in his article displaying that the vast majority of middle and high school students cannot tell the difference between real and fake news online and cannot even differentiate news from labeled ads. [53] Based on this research, Stengel argued that modern online discourse is not transparent and streamlined enough for truth to win out over falsehood or hate. [54]

V. Conclusion

The effectiveness of the American model has come under intense scrutiny recently with the number of hate crimes in the United States steadily rising over the past several years. [55] According to James Nolan, former F.B.I. crime analyst who helped oversee the National Hate Crime Data Collection Program from 1995-2000, “The trends show more violence, more interpersonal violence, and I think that’s probably reliable.” [56] That said, while critics may argue that this uptick necessitates change in our legal system, a solution is possible within the current framework if the American public embraces a cultural move toward rejecting hate at the personal level. For the American Marketplace of Ideas model of hate speech regulation to work, each individual must do their part in using reason to dismantle the arguments of those who wish to promulgate hate and bigotry. The model assumes that we will engage in our civic responsibility of cultivating the best possible community for rational thought to prevail over irrational prejudice. If Americans fail to oppose oppression wherever it arises and stay silent in the face of hate, then the American model fails. Therefore, the American public must take more personal accountability in the fight against hate if the American model of governmental hate speech protection is to succeed in the future.

Despite strong arguments for a more regulatory approach, the American model has proven effective throughout the nation’s history in both limiting hate speech and fostering an environment conducive to the rise of thought leaders. Ultimately, the measure upon which the success of the United States’ approach balances is whether the positive externalities of relatively unfettered speech outweigh the harm done by the hate speech that is allowed to remain. Even with merit on both sides of the debate, the United States’ culture of freedom and personal responsibility for maintaining that freedom tips the scale in favor of a libertarian approach to regulation of hate speech. That said, the only truly wrong answer to this debate is one that ignores the nuance and strength of the opposition. Stopping hate speech is a paramount issue that cannot afford to be looked at without considering all good solutions. 

[1] Melissa Block, Comparing Hate Speech Laws In The U.S. And Abroad , NPR, (last visited Nov. 7, 2020), https://www.npr.org/2011/03/03/134239713/France-Isnt-The-Only-Country-To-Prohibit-Hate-Speech .

[2] Canadian Human Rights Act, R.S.C., 1985, c. H-6 (Can.).

[3] That said, the United States is certainly not alone in its regulatory standards for hate speech. For instance, international law does not outlaw hate speech and mirrors the law of the United States very closely in applying an incitement standard. António Guterres, United Nations Strategy and Plan of Action on Hate Speech (U.N. Docs.).

[5] U.S. Const. amend. I.

[7] Schenck v. U.S., 249 U.S. 47 (1919).

[9] Id. at 52.

[12] See Dennis v. United States, 341 U.S. 494 (U.S. 1951) (In order for advocacy of violence to be unprotected, it must be connected with an act, and not just an abstraction of violence.); Yates v. U. S. , 354 U.S. 298 (U.S. 1957) (Advocacy for an idea only cannot be suppressed under the First Amendment. The relevant issue is whether there is advocacy for action.).

[13] Brandenburg v. Ohio, 395 U.S. 444 (1969).

[14] Cohen v. California, 403 U.S. 15, 25 (1971).

[15] The cases include: Snyder v. Phelps, 562 U.S. 443 (2011); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992); Virginia v. Black, 538 U.S. 343 (2003); and Wisconsin v. Mitchell, 508 U.S. 476 (1993).

[16] R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992).

[17] Id. at 377.

[18] Id. at 381.

[19] Id. at 391.

[20] Id. at 392. (The Marquis of Queensberry rules are a commonly accepted code of rules governing boxing. Thus, Justice Scalia is commenting on the issue of regulating one side of an argument while allowing the opposition to engage unrestrained.)

[22] Virginia v. Black, 538 U.S. 343 (2003).

[23] Virginia v. Black, 538 U.S. 343 (2003) (THOMAS, J. dissenting).

[24] Virginia, supra note 22.

[25] Lee Rowland, Free Speech Can Be Messy, But We Need It , ACLU Speech, Privacy, and Technology Project (March 9, 2018) https://www.aclu.org/blog/free-speech/free-speech-can-be-messy-we-need-it .

[26] Abrams v. United States , 250 US 616 (1919) (HOLMES, J. dissenting). The original concept of the Marketplace of Ideas can be traced back further than Justice Holmes to the seventeenth-century thinker John Milton.

[27] David Schultz, Marketplace of Ideas , The First Amendment Encyclopedia (June, 2017) https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas .

[28] Interview by Chris Anderson with Dr. Sam Harris, The TED Interviews, (Oct. 30, 2018) https://www.ted.com/talks/the_ted_interview_sam_harris_on_using_reason_to_build_our_morality/transcript?language=en#:~:text=We%20need%20to%20able%20to,the%20chance%20of%20being%20universalizable ; (For reference, “universalizability” mentioned here by Dr. Sam Harris refers to the concept expounded upon by eighteenth-century German philosopher Immanuel Kant.)

[29] Rowland, supra note 25.

[30] Interview with John Anderson and Dr. Jordan Peterson, In Conversation, (April 3, 2018) https://www.youtube.com/watch?v=U4NijLf3M-A .

[34] Rowland, supra note 25.

[36] Peterson, supra note 30.

[40] David Shih, Hate Speech and the Misnomer of ‘The Marketplace Of Ideas, NPR (May 3, 2017) https://www.npr.org/sections/codeswitch/2017/05/03/483264173/hate-speech-and-the-misnomer-of-the-marketplace-of-ideas .

[41] Richard Stengel, Why America Needs a Hate Speech Law , The Washington Post (Oct. 29, 2019) https://www.washingtonpost.com/opinions/2019/10/29/why-america-needs-hate-speech-law/ .

[42] Shih, supra note 40.

[46] Stengel, supra note 41.

[51] Harris, supra note 28.

[52] Stengel, supra note 41.

[53] Id. (This statistic is cited to assert that the internet is not a sufficiently transparent or straight-forward forum for truth to rise to the surface. The internet tends to obscure messages as simple as ads, leading young adults to believe they are news stories, so it cannot be relied upon to self-regulate hate speech.)

[55] Adeel Hassan, Hate-Crime Violence Hits 16-Year High, F.B.I. Reports , N.Y. Times, (Nov. 12, 2019) https://www.nytimes.com/2019/11/12/us/hate-crimes-fbi-report.html .

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Imagine stepping back into 1947, a time when America was navigating the complexities of post-war society and grappling with questions about its foundational values, particularly the separation of church and state. Enter the scene: Everson v. Board of Education, a Supreme Court case that, at first glance, centered around something as mundane as whether New Jersey could reimburse parents for bus fares to send their children to Catholic schools. But, oh, was there more to the story! This case wasn't […]

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Silicon Valley’s business model is incompatible with the moderation of online horror and hatred

Managing the barrage of upsetting material online is a challenge that service providers are struggling to meet, even if they try

W ay back in the mid-1990s, when the web was young and the online world was buzzing with blogs, a worrying problem loomed. If you were an ISP that hosted blogs, and one of them contained material that was illegal or defamatory, you could be held legally responsible and sued into bankruptcy. Fearing that this would dramatically slow the expansion of a vital technology, two US lawmakers, Chris Cox and Ron Wyden, inserted 26 words into the Communications Decency Act of 1996, which eventually became section 230 of the Telecommunications Act of the same year. The words in question were: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The implications were profound : from now on you bore no liability for content published on your platform.

The result was the exponential increase in user-generated content on the internet. The problem was that some of that content was vile, defamatory or downright horrible. Even if it was, though, the hosting site bore no liability for it. At times, some of that content caused public outrage to the point where it became a PR problem for the platforms hosting it and they began engaging in “moderation”.

Moderation, however, has two problems. One is that it’s very expensive because of the sheer scale of the problem: 2,500 new videos uploaded every minute to YouTube, for example; 1.3bn photos are shared on Instagram every day. Another is the way the dirty work of moderation is often outsourced to people in poor countries, who are traumatised by having to watch videos of unspeakable cruelty – for pittances. The costs of keeping western social media feeds relatively clean are thus borne by the poor of the global south.

The platforms know this, of course, but of late they have been coming up with what they think is a better idea – moderation by AI rather than humans: vile content being detected and deleted by relentless, unshockable machines. What’s not to like?

There are two ways of answering this. One is via HL Mencken’s observation that “For every complex problem there is an answer that is clear, simple, and wrong.” The other is by asking a cybernetician. Cybernetics is the study of how systems use information, feedback and control to regulate themselves and achieve desired outcomes. It’s a field that was founded in 1948 by the great mathematician Norbert Wiener as the scientific study of “control and communication in the animal and the machine” and blossomed in the 1950s and 1960s into a novel way of thinking about the human-powered machines that we call organisations.

One of the great breakthroughs in the field was made by a British psychologist, W Ross Ashby . He was interested in how feedback systems can achieve stability and came up with what became known as “the law of requisite variety” – the idea that for a system to be stable, the number of states its control mechanism can attain (its variety) must be greater than, or equal to, the number of states in the system being controlled. In the 1960s, this was reformulated as the notion that for an organisation to be viable , it must be able to cope with the dynamic complexity of its environment.

Sounds theoretical doesn’t it? But with the arrival of the internet, and particularly of the web and social media, Ashby’s law acquired a grim relevance. If you’re Meta (née Facebook), say, and have billions of users throwing stuff – some of it vile – at your servers every millisecond, then you have what Ashby would have called a variety-management problem.

There are really only two ways to deal with it (unless you’re Elon Musk, who has decided not to even try). One is to choke off the supply. But if you do that you undermine your business model – which is to have everyone on your platform – and you will also be accused of “censorship” in the land of the first amendment. The other is to amplify your internal capacity to cope with the torrent – which is what “moderation” is. But the scale of the challenge is such that even if Meta employed half a million human moderators it wouldn’t be up to the task. Still, even then, section 230 would exempt it from the law of the land. Beating Ashby’s law, though, might prove an altogether tougher proposition, even for AI.

Stay tuned.

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What I’ve been reading

Artificial realities AI Isn’t Useless. But Is It Worth It? is a typically astute assessment by Molly White of the “innovation at any cost” strategy of Silicon Valley.

Yes, we Kant Political philosopher Lea Ypi’s Kant and the Case for Peace is a thoughtful essay in the Financial Times .

Work in progress A perceptive essay on the benefits of trade unions by Neil Bierbaum on his Substack blog: For Work-Life Balance, Look to the Labour Unions!

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Michelle Cottle

The Humbling of Marjorie Taylor Greene

By Michelle Cottle

Ms. Cottle writes about national politics for Opinion and is a host of the podcast “Matter of Opinion.”

In our Trump-era politics, there’s always the question of how crazy is too crazy — how disruptive and extreme an elected official can get before becoming so embarrassing that members of her own team feel compelled to abandon her?

Representative Marjorie Taylor Greene seems to have reached that outer limit. Again.

It’s not simply that Ms. Greene has taken such a Putin-pleasing approach to Russia’s war in Ukraine (Ukrainian Nazis? Really?) that the term “useful idiot” feels unavoidable. She has, in very little time, undermined the influence of her party’s entire right flank, driving less unhinged Republicans — most notably the House speaker, Mike Johnson — to brush back her and her ilk like the poo-flinging chaos monkeys they are.

Just look at what has come to pass in the House in the past several days: Mr. Johnson, a proud ultraconservative, pushed through a $95 billion foreign aid package , including $60 billion for Ukraine, with more Democratic votes than Republican ones. He is now counting on Democrats to save him from the Greene-led extremists’ plan to defenestrate him and install yet another Republican as speaker. There is much buzz about the emergence of a bipartisan governing coalition in the House, albeit one born of desperation. Squint hard, and Congress almost looks to be functioning as intended, with a majority of members coming together to advance vital legislation. With her special brand of MAGA extremism, Ms. Greene has shifted the House in a bipartisan direction (at least for now) in exactly the way her base loathes.

Can I get two cheers for the art of the possible?!

On a less high-minded note, how delicious was it to see Ms. Greene on the steps of the Capitol on Saturday, raving about Mr. Johnson’s various “betrayals” and proclaiming him “a lame duck,” even as she hemmed and hawed about when she would move to oust him? All in good time, she said , insisting she felt moved to let her colleagues first “go home and hear from their constituents” over this week’s House recess. “I said from the beginning I’m going to be responsible with this,” she said, in what may be her most laughable line in weeks — a high bar for the House member known for her keen insights on Jewish space lasers.

Seriously, how responsible did Ms. Greene look Sunday on Fox News, as she ducked Maria Bartiromo’s questions about her plans for ousting Mr. Johnson? (Short answer: She has no plan.) Ms. Bartiromo noted that Ms. Greene was drawing widespread criticism for “creating drama” and that there was concern she was making Republicans look like a bunch of squabbling incompetents unfit to run a neighborhood book club. (Those may not have been the host’s exact words.) Ms. Greene’s crackerjack defense was to insist, “The people criticizing me are not the American people.” The American people “are outraged, and what they’re saying is they don’t want to vote for Republicans anymore,” she asserted, adding that “the Republican Party in charge right now, it’s no different than the Democrat Party.”

I may be off base here, Marjo, but trashing your colleagues as no better than the other side in a high-stakes election year is not the best way to win them over to your kamikaze mission.

Because here’s the thing: Republicans already subjected themselves to painful mockery last fall by letting their right-wingers take down Speaker Kevin McCarthy without a succession plan in mind. It took them three failed candidates and three inglorious weeks to finally install Mr. Johnson. Precious few members are likely up for a second helping of humiliation this much closer to Election Day.

I mean, not even Donald Trump is throwing in with “ Moscow Marjorie ,” as she has been dubbed in some cheekier conservative corners. After an invigorating Monday spent in court, the former president reiterated his support and sympathy for Mr. Johnson in a chat with the conservative radio host John Fredericks. “Well, look, we have a majority of one, OK?” Mr. Trump noted. “It’s not like he can go and do whatever he wants to do.”

At this point, the most enthusiastic base of support for Ms. Greene’s shenanigans may be the Kremlin . More food for thought, congresswoman: When Russian propagandists start praising your politics and beauty , it’s time to rethink your life choices.

Could this show of spine by non-winger Republicans last more than a hot second? Maybe Mr. Johnson is recognizing that his responsibilities as the head of the people’s house go beyond serving his trolliest, most obstructionist members. And maybe, unlike Mr. McCarthy, who never exhibited signs of possessing a moral core, Mr. Johnson is serious about trying to do “ the right thing ” — by which he does not simply mean whatever Mr. Trump tells him to do.

Of course, if we really want to talk fantasy scenarios, I’d be thrilled if this speaker, having stiff-armed his wingers multiple times and lived to tell about it, feels liberated to keep nudging the House toward greater functionality. I mean, the guy has already blown his shot at being the ultimate MAGA speaker. Why not give being a genuine statesman a chance and do a deal on border security or the cost of prescription drugs?

Not that I’m holding my breath. In these MAGAtastic times, the humbled Ms. Greene could rebound faster than you can say “total presidential immunity.” But for now, her flapping and flailing are satisfying to behold.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

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Michelle Cottle writes about national politics for Opinion and is a host of the podcast “Matter of Opinion.” She has covered Washington and politics since the Clinton administration.  @ mcottle