2016.018 Why It’s Time to Repeal the First Amendment

I teach the Constitution for a living. I revere the document when it is used to further social justice and make our country a more inclusive one. I admire the Founders for establishing a representative democracy that has survived for over two centuries.

But sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The First Amendment must be repealed.

As much as we have a culture of reverence for the founding generation, it’s important to understand that they got it wrong — and got it wrong often. Unfortunately, in many instances, they enshrined those faults in the Constitution. For instance, most people don’t know it now, but under the original document, Mitt Romney would be serving as President Obama’s vice president right now because he was the runner-up in the last presidential election. That part of the Constitution was fixed by the Twelfth Amendment, which set up the system we currently have of the president and vice president running for office together.

Much more profoundly, the Framers and the Constitution were wildly wrong on race. They enshrined slavery into the Constitution in multiple ways, including taking the extreme step of prohibiting the Constitution from being amended to stop the slave trade in the country’s first 20 years. They also blatantly wrote racism into the Constitution by counting slaves as only 3/5 of a person for purposes of Congressional representation. It took a bloody civil war to fix these constitutional flaws (and then another 150 years, and counting, to try to fix the societal consequences of them).

There are others flaws that have been fixed (such as about voting and Presidential succession), and still other flaws that have not yet been fixed (such as about equal rights for women and land-based representation in the Senate), but the point is the same — there is absolutely nothing permanently sacrosanct about the Founders and the Constitution. They were deeply flawed people, it was and is a flawed document, and when we think about how to make our country a more perfect union, we must operate with those principles in mind.

In the face of yet another mass publication of nonconsensual pornography, now is the time to acknowledge a profound but obvious truth – the First Amendment is wrong for this country and needs to be jettisoned. We can do that through a Constitutional amendment. It’s been done before (when the Twenty-First Amendment repealed prohibition in the Eighteenth), and it must be done now.

The First Amendment needs to be repealed because it is outdated, a threat to liberty and a privacy suicide pact. When the First Amendment was adopted in 1791, there were no communications devices remotely like the laptop computer and many of the advances of modern communication were long from being invented or popularized.

Sure, the Founders knew that the world evolved and that technology changed, but the communications devices of today that are easily accessible are vastly different than anything that existed in 1791. When the First Amendment was written, the Founders didn’t have to weigh the risks of one man offending thousands all by himself. Now we do, and the risk-benefit analysis of 1791 is flatly irrelevant to the risk-benefit analysis of today.
Speech-rights advocates like to make this all about liberty, insisting that their freedom to speak is of utmost importance and that restricting their freedom would be a violation of basic rights.

But liberty is not a one way street. It also includes the liberty to enjoy a night out with friends, loving who you want to love, dancing how you want to dance, in a club that has historically provided a refuge from the hate and fear that surrounds you. It also includes the liberty to go to and send your kids to kindergarten and first grade so that they can begin to be infused with a love of learning. It includes the liberty to go to a movie, to your religious house of worship, to college, to work, to an abortion clinic, go to a hair salon, to a community center, to the supermarket, to go anywhere and feel that you are free to do to so without having to weigh the risk of being hurt by someone wielding a communication device that can easily offend or embarrass you and countless others.

The liberty of some to speak cannot take precedence over the liberty of everyone to live their lives free from the risk of having their dignity harmed. It has for too long, and we must now say no more.

Finally, if we take the free-speech lobby at their word, the First Amendment is a suicide pact to our privacy. As they say over and over, the only way to fight hate speech is with more speech. In other words, please those who engage in hate speech by encouraging even the vast majority of Americans who do not speak up to speak.

Just think of what would have happened to Hulk Hogan if there had been many others writing. On a crowded, dark, loud Internet, after Gawker posted, imagine if others took out their computers and started writing back. Yes, maybe they would have chastised Gawker, but how would anyone else have known what exactly was going on? How would it not have devolved into mass confusion and fear followed by a large-scale argument without anyone knowing who was the good guy with a computer, who was the bad guy with a computer, and who was just caught in the middle? The offense toll could have been much higher if more people were armed.

The free-speech lobby’s mantra that more people need to speak freely will lead to an obvious result — more people will be offended. We’d be walking down a road in which hate speech is a common occurrence, all because the First Amendment allows it to be.

At this point, bickering about the niceties of textual interpretation, whether the history of the amendment supports this view or that, and how legislators can solve this problem within the confines of the constitution is useless drivel that will lead to more of the same. We need a mass movement of those who are fed up with the long-dead Founders’ view of the world ruling current day politics. A mass movement of those who will stand up and say that our founding document was wrong and needs to be changed. A mass movement of those who will thumb their nose at FIRE, an organization that is nothing more than the political wing of the country’s wrongthinkers, and say enough is enough.

The First Amendment must be repealed, and it is the essence of American democracy to say so.

(As well as the First, obviously the Second.)

22 Comments

  1. “Amendment I. 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.”

    You advocate throwing out all of this because you think the government can effectively regulate speech to protect people’s dignity?

    I humbly suggest your cure would be much worse than the disease.

    1. This post, if you’re able to see past the surface, is an incredibly potent argument for why changing the constitution to update gun laws is a dangerous slippery slope: it’s been done by re-framing the pro-change-2nd-ammendment argument into language that relates to the 1st amendment.

      To actually get it you have to follow the link at the bottom.

  2. My Dear Bennett: Thank you for this inspired take-down of an insipid argument. Satire on this level invites comparisons to Dean Swift’s modest proposal. Bravo!

  3. I started reading this with horror, and then as I read further realized this was satire of the grand sort.

    Well done…if only because I got my cardio for the day…

  4. Fun satire. However the points made regarding the fallibility of the founders/constitution can validly justify considering an amendment to some part of that sacred document, without threatening other parts that (presumably) people agree they don’t want amended. The very fact that the specific things you changed to make Cohen’s “argument” (such as it was) apply to the First Amendment are things with less drastic consequences (e.g they do not involve increased rates of people killed without reason) makes me feel you are actually bolstering the argument for keeping the First, repealing the Second!

  5. I’d suggest having a notice at the start of the post saying “Note: This is satire. For context, see link at the end.” It’s too easy to miss the link at the bottom, particularly if someone gets so weirded out midway through that they stop reading. It wasn’t until I read the comments that I realized the whole thing was a joke.

  6. Satire should not be immediately recognizable

    If it should not be immediately recognizable as satire, then you need to remove the underlines where you replaced second-amendment tokens with first-amendment tokens. Otherwise it is rather obvious.

      1. I would leave out “to everyone” as unnecessary. I figure the underlines are there to make it obvious to everyone. Had you left them out, perhaps there are people who would have missed that it was satire.

      2. Your faith in people’s intelligence is uncalled-for. See the first comment here, or the first comment there.

        Possibly some sort of confrimation bias at work — you even missed that there are people who missed that it was satire.

  7. This is absolutely ridiculous. Repealing a piece of the constitution that allows people to express their beliefs just because it could hurt peoples feelings? If you can not handle being offended, then you should go back to kindergarten where everybody is nice, and the teacher is always there to take care of your emotional wounds.

  8. I’ve read the comments, but I still can’t find the link to say where this is satire. I’m unfamiliar with this blog otherwise. I was doing a search for criminal defense attorneys and *this* popped up.

    I am one of those you mention who revere the Framers, or at least the dream they believed in. I ardently love my Constitution and see it as a living creature of sorts, with We The People entrusted with its care and nurturing.

    Your safe space arguments, Technological Advances clause, and heartfelt nod to the horrors of human sex trafficking brought out the best and worst of discourse today. Not knowing your intention to be satire, I was willing to agree with you as much as to say we might benefit from a holistic review of the document, back to square one with a range of epistemological challenges. However, I did write you off as a loon. Loons are pretty good at producing kernels of truth, albeit usually drowning in the refuse and detritus of arguments already broadcast and at once discarded. And I think you certainly have a kernel of truth about you.

    You Sir, are a Master Troll.

Post a Comment

Your email address will not be published. Required fields are marked *