Perspectives: Amending the First Amendment

Being Libertarian Perspectives will serve as a weekly, multi-perspective opinion and analysis piece by members of Being Libertarian’s writing team. Every week the panel, comprised of randomly selected writers, will answer a question based on current events or libertarian philosophy. Assistant Editor Dillon Eliassen will moderate and facilitate the discussion.

Perspectives 1

Dillon Eliassen: The First Amendment reads in part “Congress shall make no law… abridging the freedom of speech.” Should the First Amendment be revised to include abridgements of speech that do not originate from the federal government? If politics run downstream from culture, shouldn’t we also expect to not be censored by our civil and private institutions?

Ni Ma: The Constitution is concerned with the federal government, telling it what it can or cannot do, in this case that it cannot suppress free speech. If we want to have similar agreements with said civil or private institutions then we’d have to take it up with those separately I would think.

Mike Avi: No, people can’t expect every club or private entity to afford them free reign. That’s an integral part of freedom of assembly and private property rights. We can’t go to an AA meeting and tantalize them with booze. We can’t go to a restaurant and harass people who get a Big Mac with a diet coke. Free speech is an incredibly political and public act, but the right to field, ignore, and self-censor is part of individual autonomy.

Martin van Staden: I agree with Mike. However, what should be changed is ‘Congress’ must become ‘Government legislatures of whatever level’. ‘Congress’ is a federal institution, and by reading the First Amendment it would appear to the legally trained mind that only the federal government is prohibited from abridging freedom of speech: not state or local government (the Supremacy Clause makes no difference in this regard).

Bric Butler: No. I don’t think there is any sort of justification to take an action like that. Private property means the owner decides and it is a crucial liberty that should not be altered. Yet often times I think libertarians, or other small government types, just throw their hands up at the point of saying, “Their property, their choice!” and move on. I think more should actively take a moral position (regardless of the viewpoint) and advocate for their desired outcome to be reached by non-government channels of action.

Dillon: What Mike said is very important, that autonomy means you must have the capability to ignore offensive speech. And that is essentially the point of the topic: More and more people believe that their freedom of speech is being abridged when they hear or read speech that they find offensive. They don’t understand that they don’t have a right to not be offended, and the bar is continually lowered as to what “offensive” means. And I wonder how long it will take for a flood of micro-aggressions to lead to the First Amendment being overturned. Look at Citizens United. Statists will try again to codify reasons why censorship is necessary. Maybe we need a preemptive strike in the name of liberty. The Left do not ever take their foot off the accelerator of the culture war (My freedom of speech should be docked a few points for that mixed metaphor faux pas).

Bric: I’m torn on the Citizens United case. To this day I don’t know where I stand on it.

Martin: We should be mindful of the fact that it is not only the social justice left which is doing this. Milo Yiannopoulos, a self-proclaimed ‘cultural libertarian’, believes that private platforms with a big reach should be considered public utilities, and therefore be subject to the First Amendment. The right carries some blame in this regard.

Bric: The right wing is not perfect on free speech, but right now they are helping combat the main cancer, which are SJWs. So I give people like Milo a little extra leash right now because well… priorities. And if no one could already tell I lean right so I might just be biased too.

Martin: The right is not doing anyone any favors by competing for who can be the biggest statist with the left. While Milo does good work fighting the left, his own pet loves for the State cannot simply be ignored given his rising reach and influence. Many people believe he is an authority on these topics (i.e. not only fighting SJWs) so it is not just a minor annoyance. A good example on this later point is where he recently defended Donald Trump’s intention to strengthen defamation law with regards to the media. People agree with Milo due to his popularity gained from fighting SJWs, and he’s using that platform to advance his other views as well. I am simply saying we need to approach these things with caution.

Bric: The media today is largely controlled by liberals. Academia today is largely controlled by liberals. Hollywood, New York City, and most other major cultural centers and outlets of influence are controlled by liberals. Yes, Milo, Trump, and other members of the right & alt-right are gaining influence each day but they aren’t anywhere near the level of the entrenched power of the modern American left. So, as of now, let them rage on and swamp the left. If and when they start to come closer to the amount of power the American left currently has, I’ll get more critical. Till then as the saying goes “The enemy of my enemy is my friend.” Yet many libertarians abhor that because they are ideological to the max and refuse any sort of political pragmatism. This holds even more true and important if Clinton wins the election. The right, libertarians, and all those who find themselves somewhere between those two ideologies will have to find ways to work together to stop four more years of complete left wing dominance.

Martin: That argument is used by every opposing political faction whenever their opponents dominate. It’s a self-reinforcing cycle which never ends. Next time we’ll say the right dominates so let’s give the left some leeway. I think as libertarians we are in a unique enough position to reject that line of argument. We oppose statism regardless of the source, especially when it comes to the regulation of speech. Milo’s argument that Twitter should be a ‘public utility’ and thus regulated under the First Amendment is nonsensical from a libertarian perspective and there is no reason to believe this is somehow less damaging than what the left intends to do. It has practically the same effect, being that people are forced to associate when they do not want to. Twitter doesn’t owe Milo or the right anything.

Bric: I understand completely about how this is often a self-reinforcing cycle that creates a continual shift between the left and right in American politics and therefore the two major political parties… Yet what are our other options outside of working within the two party/ideology dynamic? A third party so Libertarians can stay pure to principle? There are major structural reasons in the US political framework that make viable 3rd parties basically impossible to create, which is why throughout US history they have been virtually non-existent. Working with the right (or the left if you are brave enough) is really the only practical option, in hopes that over time we can redefine the left or the right to be more in line with libertarian principles and then build from there. That is what Rand Paul, Ron Paul, etc. have been doing and they have had more impact on influencing people to consider a “libertarianesque” government and society than the Libertarian Party has done in 40 years. Just as Milo is building a coalition with the traditional right and libertarians to gain influence that he can use to promote his other more distinctly alt-right causes. It’s effective. We should learn from it.

Martin: Well, this has less to do with the parties and more with where libertarians stand. It’s fine to vote Republican or Democrat and like Milo but in our capacity as libertarians we should criticize them when appropriate (as is in this case). I might add that Americans should stop underrating the Libertarian Party. It may not hold any offices but by membership numbers and party structures the LP is somewhat of a global leader which we little people from all around the world look up to as a template for starting our own pro-liberty movements. So yes, working with the right and left on issues where they agree with libertarian principles is fine. But this is not an example of those cases. Libertarians didn’t support Bush’s escapades into the Middle East just because he was on the right and, after Clinton, we needed to “work with the right.” Libertarians rejected that aspect of the right, and we will do well to do the same with this public utility nonsense.

Bric: I don’t believe that they should be excused for bad positions, but they can be put on the back burner of problems needed to be dealt because they are less severe now. The destruction of free speech on campus caused by SJWs is a real and more immediate threat then talk of forcing a major American tech corporation to become a public utility. And as to the Libertarian Party: I hope they can prove me wrong, but there are factors outside of their control that I think will always hinder any third party.

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