Tag Archives: First Amendment

Quote of the Day: ‘Constitutionalist’ Inconsistency Edition

From Mike Maharrey’s post: The Constitutional Inconsistency of Many “Constitutionalists”

This short statement sums up many people’s views on “constitutionalism” and “limited government” in a nutshell. It goes like this. If the government tries to do something ‘limited government guy’ disapproves of – regulating light bulbs or soda consumption – he will scream “limited government” and point at the Constitution. But when the federal government does something ‘limited government guy’ deems necessary, he makes excuses for it, and supports it, whether authorized by the Constitution or not.

The federal government lacks the constitutional authority to do any of these things. But ‘limited government guy’ wants the feds to enforce airline security because he finds it “a good idea.” Here’s the thing: a lot of people think telling ‘limited government guy’ how many ounces of soda he can drink is a good idea. A lot of people think telling ‘limited government guy’ what kind of light bulb he can screw into his fixture is a good idea.

So, why exactly should the federal government implement the things ‘limited government guy’ likes (airport security) and not those others things he dislikes? He really doesn’t have any basis to object, other than his conception of “good ideas.” He’s already tacitly admitted the federal government can do pretty much anything. Now it only comes down to whether it should.


Of course, this is all pretty much moot in 2015 because Americans don’t really give a crap about what the Constitution says or means any more – unless it relates to abortion, porn, gay marriage or keeping somebody from slapping the 10 Commandments up in a public space.

By the way, I bet ‘limited government guy’ thinks it’s a great idea for the feds to meddle in some of those things too.

I’ve encountered quite a bit of these “constitutionalists” and “limited government guys” recently. For example, there are actually “limited government” people in my social media feeds who think anything related to Islam should be banned (burkas, mosques, “Sharia Law” in private family matters, the very practice of Islam itself etc.). “Islam isn’t a religion, it’s an ideology (or cult, or philosophy, or…). Even if I were to concede that point (which I don’t), banning Islam or any other expression of conscience which does not violate the rights of others would still be a flagrant violation of the First Amendment. A true “limited government” person supports the rights of people with whom s/he disagrees.

Mike Maharrey is definitely onto something here. Most people aren’t really in favor of liberty for “others” but only for themselves.

Gawker, the Freedom of Expression, and the Power of Consequences

Is Gawker violating its writers’ rights if its chief executive editor de-publishes a controversial post?

What about if a company’s CEO is forced to step down in the face of a threatened boycott over the CEO’s political positions? Is an artist being “censored” if a comic book publisher cancels his covers and suspends him? Is it an unconstitutional “ban” on speech if Amazon and Walmart remove Confederate flag memorabilia from their offerings?

Across the web confusion abounds about what freedom of expression really means.

Most recently, in the messy wake of its sex-shaming post about a private citizen’s violation of Gawker’s neo-Victorian strictures on monogamy, founder and CEO Nick Denton (who pulled the post) had this to say to his editors:

What I can’t accept is an unlimited and subjective version of editorial freedom. It is not whatever an editor thinks it is; it is not a license to write anything; it is a privilege, protected by the constitution, and carrying with it responsibilities.

Literally, every part of that last bit is wrong.

The editorial autonomy of Gawker writers is not constitutional in nature. It is a license granted by their employer—i.e. Denton. Absent a binding contract, it can be revoked at any time without running afoul of anyone’s rights, and certainly not running afoul of anyone’s constitutional rights.

The constitutionally protected freedom that Gawker writers do have (as do we all) is not to publish at Gawker. The Constitution restricts the power of Congress, not the discretion of Nick Denton.

Nor is that constitutionally protected freedom a “privilege.” It is a right.

And it does not have to be exercised responsibly.

It vexes me when people who should know better get sloppy in their framing. Messy language leads to messy thinking and, in the process, dilutes effective defense of this crucial freedom.

Perhaps a libertarian(ish) review is in order.


Although routinely used in Supreme Court decisions, the words “free speech” do not appear in the Constitution. In my opinion, overuse of this terminology induces people to mistakenly believe their speech should always be costless and consequence-free.

That is not how it works.

Speech requires a forum, which must be paid for by someone.

In public forums paid for by taxpayers, “time, place and manner” restrictions may be imposed to keep things orderly. But content-based discrimination is not permitted. Even the Nazis get to express themselves.

In private forums, on the other hand, the property owner gets to decide what speech he is willing to host.

There is no “free speech” right to interrupt a Muslim prayer service at the National Cathedral. The Cathedral’s owner, which is the Episcopal Church, gets to decide what sort of speech occurs there. It doesn’t have to (but may if it wants) host Muslim-haters, atheists, rude people, or morons.

Similarly, bookstores are not required to carry every book printed just because the author claims a “free speech” right. The corner market does not have to sell every conceivable magazine. Art galleries do not have to make room for every painting. Radio stations do not have to play every song.

And Gawker does not have to publish every post. (I would totally make it publish this one.)

If a speaker wants his speech to be “free” in the sense of not having to pay for the forum, he must either utilize a public forum or find a private owner willing to host the content gratis. Luckily, in this day and age, there are lots of options for that.

Gawker is not one of them.

Like other private publishers and forum owners, it exercises its right to decline hosting or publishing content it dislikes. There’s a term for that right.

…Oh yeah. Freedom of speech.


It is tempting to say that Brendan Eich was “forced” to resign from Mozilla over his position on same-sex marriage. That Richard Albuquerque was “forced” to pull his Batgirl cover variant. That TLC was “forced” to cancel the Duggars.

That Nick Denton was “forced” to pull the now infamous Gawker post.

It sounds more melodramatic and provocative to phrase it that way. But to the extent it’s semantically correct, this is not the kind of “force” that runs afoul of the freedom of expression.

Wrongful force is actual physical force used to prevent or punish speech or other forms of expression.

This includes all governmental interference, because government action by definition involves force. Even civil regulations (like fines) eventually end with puppy-killing SWAT teams. Of course force exercised by private actors, in the form of violent reprisals, also suppresses freedom and therefore should be resisted with the same passion.

Preventing forceful suppression of expression is a higher order principle. When triggered, that principle transcends issues about the content of the speech being defended.


Because speech is the most powerful weapon that ever has or ever will exist.

It has the power to topple kings, eviscerate falsehoods, destroy paradigms, provoke thought, change minds and hearts, alter the course of history, and transform the world.

And it can do all that without shedding a drop of blood.

A weapon like that cannot be entrusted to the exclusive control of the few. Enlightened rulers using force to curtail speech have too often gotten it wrong. Power once ceded can rarely be retrieved, and battles not fought with words and ideas will be fought instead with violence and bloodshed.

We cannot retain the best of speech without protecting its worst. We cannot extract its power to do harm without diluting its power to do good.


That being said, everything short of physical force is fair game.

A Congressional communications director can be pressured into resigning (or fired) for making snarky comments about the President’s daughters. TLC and A&E can cancel their reality television lineup for any reason consistent with the contracts negotiated. Customers can boycott wedding photographers or bakers in retaliation for expression of disfavored opinions. Landlords can refuse to rent to people with Confederate flags in their rear windows. Employers can bypass applicants over their social media postings.

Firing. Boycotting. Refusing to hire. Pulling advertising. Cancelling subscriptions. Social media flame wars. De-publishing. Disassociating. Shaming.

All of these are fair game. All of these are themselves protected acts of expression.

They may make life unpleasant for the target. They may feel coercive or even deeply wounding.

They’re supposed to.

If speech didn’t have that power, we wouldn’t bother protecting it.

Deciding to refrain from speaking because such consequences are too unpleasant is not a response to force. It is a response to speech.


If Gawker were being threatened with forceful suppression of its speech, defending against that violation would be a higher order principle that transcended all others. Personal feelings about the content of the speech would be secondary.

But where no force is imposed or threatened, those secondary principles are the only ones at play. The whole point of the higher principle is to create a circle of freedom in which ideas, without limitation, can be explored and judged on the merits. If we never got around to the judging part, we would destroy the very reason for preserving the freedom.

Nothing happening at or to Gawker (in this specific case) poses any threat to anyone’s fundamental right to free expression. The writers are free to write. The owners of Gawker are free to choose what to publish. The editors are free to “fall on their poisoned pens” in protest. Advertisers are free to abstain. Readers are free to boycott.

None of this constitutes a violation of anyone’s freedom. It’s what freedom looks like.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

American Kim Jong Un’s Try to Silence Speech Every Day

joke braIt should come as no surprise that a petty little foreign dictator is trying to silence speech he finds offensive using threats of violence. Here in the United States, we have our own homegrown petty dictators doing their best to suppress speech they dislike every day. Like Kim, their refusal or inability to simply state their disagreement persuasively reveals them as the petulant, tyrannical little egomaniacs they are.

Preliminarily, let us dispose of the erroneous notion that there are any Constitutional implications to this issue, a confusion resulting from the sloppy substitution of the term “free speech” for the actual text of the First Amendment. Sony Picture’s difficulties do not stem from any legislative action of a U.S. government body. Sony’s rights under U.S. law to make and distribute The Interview are not in question. Sony’s difficulties arise from actions taken by hackers, perhaps connected to Pyongyang.

The First Amendment acts as a restriction on legislative action by U.S. government bodies. It does not restrict the private actions of businesses, churches, employers, property owners, criminal hackers, or petulant foreign tyrants. Hacking emails and making threats are crimes. Sony and the theater chains have the right to be protected from criminal acts. Those rights do not stem from the First Amendment.

But just because private action to suppress speech is permitted, that does not make it desirable. Nevertheless, homegrown tyrants in the U.S. increasingly resort to silencing, rather than simply persuasively voicing their disagreement with speech they find offensive.

Consider the recent case of Omar Mahmood.

Mahmood is a student at the University of Michigan. There he penned a column for the university’s conservative alternative newspaper, The Michigan Review. The essay was intended as satire mocking political correctness, victim identity politics, and “trigger warnings.”

It was called “Do the Left Thing” and accompanied by an all-caps “TRIGGER WARNING!” In the piece, Mahmood talks about “microaggressions” against left “handydnyss,” including one incident where he slipped in white-privilege snow, put out his left hand to catch himself, and was offered assistance by a white, cis-gendered m@n. In that moment, Mahmood begins to think “intersectionally” about what it is to be a left-handyd individu@l. He spurns the right-hand of assistance and the other man calls out, “I was just trying to do the right thing!” Mahmood has an epiphany about the right-handed privilege behind the words “right thing” and how the word sinister originally meant left-handed. He closes by urging people to do the “left thing” (which might be a double entendre of sorts). Read the whole thing here.

The column, as noted, ran in the conservative Michigan Review. But Mahmood was also a writer at another campus paper called The Michigan Daily. A writer at The Daily claimed to feel “threatened” by the piece. Mahmood was asked to apologize. He refused.

Shortly thereafter, he was fired based on a provision in The Daily’s bylaws that prevents students who work at The Review from also writing for The Daily unless they obtain prior permission from The Daily’s editor-in-chief. Of course, some people have speculated that Mahmood was not really fired for violating the bylaws, but rather for writing a column deemed offensive. Either way, there are no First Amendment implications. The Daily can fire writers for any reason or none at all.

But why does it want to? Why this need to punish people rather than respond to ideas? Whither this seemingly growing compulsion, not just to disagree, but to suppress and silence all speech deemed offensive?

The breadth of the problem is highlighted by what happened to Mahmood next. His off-campus apartment was vandalized with eggs, hot dogs and pictures of Satan. The aggressors printed copies of “Do the Left Thing” and left them at his door with hateful messages scrawled across: “Everyone hates you, you violent fuck;” “Shut the fuck up;” and “Do you even go here? Leave.”

image OmarDoor

Mahmood now says he wonders if he would do it all over again.

“There are times when I say to myself, ‘Hell yes, I should have written that!'” he said. “And there are times when it’s like, never in my dreams would I write it again, given the reaction I have had to deal with.”

I’ve got a whole list of triggers (though I require no warnings): group think, identity politics, collectivism, racism, statism, theocracy, the claim that women in the United States of America are persecuted, the claim that Christians in the United States of America are persecuted, Keynesian economics and Anita Sarkeesian, to name but a few.

But I never, ever feel compelled to silence the people with whom I disagree. At most, I would be satisfied with keeping their speech out of my home and my business and off my private property. I have no compulsion to make it cease existing. I am happy to simply state my disagreement, and to prove them wrong with words, logic and evidence.

Silencing is the tactic of people who are insecure in their own arguments—or incapable of making them at all. They merit no more respect for their terrorist tactics that Kim Jong Un does for his.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

No Publius in the Alabama Senate Press Room

Del MarshDel Marsh, R-Anniston, president pro tempore of the Alabama Senate, has asked the Alabama Press Association to assist Senate staff “in determining a proper definition of what constitutes a journalist meriting access to the press room.” Senator Marsh only wants real “journalists” in the press rooms. The others—“partisan political blogs and shady fly-by-night websites offering purposely skewed and inaccurate interpretations of hard news events”—can “sit in the public gallery and blog about what they see” from there.

One wonders, if the access in the gallery is commensurate with the access in the press room, what difference does it make? On the other hand, if the access is not commensurate, then why is Senator Marsh seeking to relegate some of his citizens to second class access based on a distinction even he cannot articulate?

Luckily for him—and the Alabama Press Association—the U.S. Supreme Court has already made it simple to determine who possesses the freedom of the press.


“The press” refers not to a group of people, but to the action of publication itself. Thus, “freedom of the press” protects not a privileged group of actors, but the action of conveying information and ideas, wherever that action is undertaken, by whatever means and whatever person. The Supreme Court has repeatedly recognized as much:

The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion.

Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (protecting Jehovah’s Witness’s right to distribute religious leaflets door-to-door without a license).

The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Freedom of the press is a “fundamental personal right“… The informative function asserted by representatives of the organized press … is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.

Branzburg v. Hayes, 408 U.S. 665, 703-05 (1972) (emphasis added, internal citations removed) (like every other citizen, a reporter can be called to answer before grand jury).

[T]he purpose of the Constitution was not to erect the press into a privileged institution, but to protect all persons in their right to print what they will as well as to utter it. “[T]he liberty of the press is no greater and no less than the liberty of every subject of the Queen,” and, in the United States, it is no greater than the liberty of every citizen of the Republic.

Pennekamp v. Florida, 328 U.S. 331, 364 (1946) (emphasis added, internal citations removed) (Frankfurter, J., concurring).

Is it too idealistic to think that something called a “press room” should be open to all the people who possess the “freedom of the press,” which is to say everyone?


Surely, the general public cannot demand admission to White House press briefings. And Marsh would say he is not proposing to restrict the act of publishing, but rather the act of entering the press room. The former is a constitutional right; the latter (Marsh would argue) is a special privilege.

The distinction is not without meaning, as Doug Mataconis has comprehensively explained. Just as federal and state governments can grant special privileges for religious beliefs without running afoul of the First Amendment, so too can they grant extra-Constitutional privileges, such as testimonial shield laws, to only certain members of the media.

When expanding protection, legislatures are entitled to draw lines that might not be permissible in the case of abridgements.

*     *     *

Because press shield legislation would extend immunities to the press beyond what the First Amendment has been held to require, it probably does not violate the Constitution to confine those immunities to a subset of entities entitled to protection under the Press Clause.

Michael W. McConnell, Reconsidering Citizens United as a Press Clause Case, 123 Yale L. J. 266 (Nov. 2013).

Marsh might seek to characterize his proposal, not as an infringement upon freedom of the press, but a special perk akin to a media shield law for favored groups in their exercise of that right. That might be constitutional.

But it is also bad policy.

Its practical unworkability is evidenced by other efforts to establish criteria for the receipt of such special perks. Such criteria inevitably focus on the regularity and primacy of the journalistic activity to that individual or entity and whether that activity constitutes a business endeavor for financial gain or livelihood.

As former Circuit Judge for the Tenth Circuit Court of Appeals and Director of the Constitutional Law Center at Stanford Law School Michael W. McConnell has observed, those standards risk excluding publications like The National Review, The Weekly Standard, Slate and Newsweek, which are sometimes kept afloat by donors rather than profits. They risk excluding the National Geographic Society, the Smithsonian, and the American Bar Association, which engage in journalism as secondary to other endeavors. And they risk excluding authors, documentary filmmakers, and pamphleteers, who do not follow any predetermined cycle to their publishing.

Senator Marsh would do well to remember, also, what Doug Mataconis observed:

[I]t was a bunch of bloggers who discovered that the memos that CBS News relied upon to support its story about George W. Bush supposedly ducking out early on his National Guard commitments were forgeries. That report, you’ll recall, came out at the height of the 2004 re-election campaign and threatened to have a major impact on the election. Instead [thanks to those bloggers], it ended up having a major impact on the careers of several CBS News employees, including a man who had been anchoring the CBS Evening News for more than 20 years. For reasons like that, it’s important that we make sure that shield laws don’t end up being something that only cover members of what essentially amounts to a protected cartel while bloggers and free-lancers are left out.

Under Senator Marsh’s approach, “real” journalists like Dan Rather would no doubt gain admission to the Alabama legislature’s press rooms. What about the bloggers who uncovered the problems with Rather’s documents?

PubliusIt is not always clear, based on mainstream status, who is the partisan, shady, fly-by-night imposter “offering purposely skewed and inaccurate interpretations of hard news events” and who is engaged in real journalism. Senator Marsh should reconsider his efforts to impose press credentialing standards that Thomas Paine, Publius, and the Federal Farmer would be unable to satisfy.




Lady Liberty image via The Montgomery Advertiser. Publius image from FeedBooks.com.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.