For a newspaper columnist, Joel Connelly has a rather bizarre take on the First Amendment. In a column attacking voters with the gall to bark at elected officials and reporters with the nerve to question candidates about the intersection of their faith and their public life, Joel wrote…

Our Founding Fathers designed the First Amendment to provide an alternative to boorish, repressive and authoritarian behavior.

I thought that was bizarre—and so did Erica Barnett, who picks apart Joel’s column here. We always thought the First Amendment was designed to prevent the government from regulating speech and that it specifically protected rude, offensive speech—particularly when it’s directed at politicians. But, hey, we’re just punk kids! What do we know about ye olde First Amendment? Or what, exactly, was going through the booze-addled brains of our founding fathers when they “designed” it? So I sent Joel’s column to the American Civil Liberties Union HQ in Washington D.C. for comment. Marv Johnson, ACLU Legislative Counsel, wrote back to me this morning.

The one thing we know for sure about our Founding Fathers’ intentions was that they opposed prior restraints on speech. Other than that, the historical record is strangely silent. “Congress shall make no law… abridging the freedom of speech” certainly seems clear, but then Congress in 1798 adopted the Alien and Sedition Act which does exactly that. So, it is unclear exactly what the Founders had in mind, which is why you see very little of “originalist” language in First Amendment decisions….

As for the First Amendment “protecting” us from boorish behavior, that is the antithesis of the “free, wide-open and robust” marketplace of ideas… The First Amendment was certainly NOT adopted to keep people from being vocal about disagreements. To the contrary, it was designed to foster those disaagreements, and keep the government from being the arbiter of the who gets to speak.

Full text of Johnson’s email after the jump.

Dan: Sorry. Forgot about the time difference. . .

The one thing we know for sure about our Founding Fathers' intentions was that they opposed prior restraints on speech. Other than that, the historical record is strangely silent.

"Congress shall make no law. . .abridging the freedom of speech" certainly seems clear, but then Congress in 1798 adopted the Alien and Sedition Act which does exactly that. So, it is unclear exactly what the Founders had in mind, which is why you see very little of "originalist" language in First Amendment decisions.

There are several theories of why free speech is so important in a democratic society:
1. Self-governance. A people cannot govern themselves without the ability to discuss and debate the various issues that they confront.
2. Discovery of truth. This is where the "marketplace of ideas" comes into play. A free people should be able to toss out an idea into the marketplace, and see whether it withstands scrutiny. The civil rights movement could easily be used as an example here.
3. Advancing autonomy. Justice Thurgood Marshall talked about the human spirit demanding self-expression. Under this theory, expression is intrinsically important to human development.
4. Promoting tolerance. By exposing people to beliefs and ideas they may find upsetting, it may promote tolerance towards others' views.
5. It's a safety valve. In a democracy, change should come from ideas rather than from the barrel of a gun. If people have an outlet to express their views, they are less likely to engage in violence.

All of these theories have their proponents and critics, and none of them are necessarily mutually exclusive. You will see various iterations of these theories in the free speech cases from the Supreme Court.

As for the First Amendment "protecting" us from boorish behavior, that is the antithesis of the "free, wide-open and robust" marketplace of ideas discussed in some of the cases. For example, in 1971, in Cohen v. California, a man wore a coat with the phrase "Fuck the Draft" on his back. He was in a public building, and was arrested. The Supreme Court held that he was entitled to express his opinion in this fashion, even though some may be offended by his language. The Court noted , “we cannot indulge in the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.”

The First Amendment was certainly NOT adopted to keep people from being vocal about disagreements. To the contrary, it was designed to foster those disaagreements, and keep the government from being the arbiter of the who gets to speak.

I am also struck by the notion that this country has somehow adopted the attitude that we have a "right" not to be offended. Nothing could be further from the truth in a democratic society. We SHOULD be challenged and offended. That's how we grow and change. The whole notion of "I've made up my mind so don't confuse me with the facts" is how we get into trouble. A judge once told me, "The seven deadliest words in the English language are: 'That's the way we always do it." By protecting speech that we find distasteful, we are able to grow and change. If the idea is that distasteful, then explain WHY it is distasteful. Those arguing for segregation in the South vociferously argued their position. To them, integration was distasteful. But people came to see that their arguments were a hollow shell for racial hatred, and repudiated those ideas. That's what the First Amendment is all about: the power to make us and our country better.

Let me know if you have any questions. Sorry about the typeface change -- Microsoft strikes again! :-)

Marv Johnson
ACLU Legislative Counsel