Jonah Raskin : The First Amendment Sucks

Cartoon by Ramiro Zardoya / Cartoon Movement.
And it's not written in stone:
The First Amendment sucks

Once upon a time, I never would have said this. But I am saying it now: we have to watch what we say if we are to live at peace with one another.

By Jonah Raskin / The Rag Blog / September 20, 2012

In the wake of the murders of four Americans in Libya, including U.S. Ambassador J. Christopher Stevens, media pundits have come back again and again to the First Amendment as though it was sacrosanct and inviolable, and as though the First Amendment protects the rights of Americans to say anything they want to say about the prophet Mohammed.

In point of fact, the First Amendment never was, isn’t now, and never will be sacrosanct and inviolable. There has never been absolute freedom of speech and the press in the United States, though some, like Chief Justice William O. Douglas, insisted on it from the sanctity of the Supreme Court.

But did anyone ever stand up before the nine judges, point a finger at Douglas or any of his fellow jurists, and call him a “pimp for the American plutocracy” and a “dirty old man.” I don’t think so. I think he would have bounced them right out of the courtroom.

To this date, they don’t even allow TV cameras in the Supreme Court. How’s that for freedom of speech? Moreover, more to the point, the court has ruled that corporations have freedom of speech, but that high school students who unfurl banners that say “Bong Hits 4 Jesus” don’t. How’s that for logic?

The founding fathers who drafted the First Amendment, which says that Congress can’t abridge freedom of speech, freedom of the press, and the right to gather peacefully and demand change, never intended those freedoms to be enjoyed by everyone. To a man, the founding fathers were white and wealthy and didn’t want African Americans, women, or white men without property to enjoy the same rights that they enjoyed.

They were hypocrites, dear old Tom Jefferson, James Madison, and President John Adams who jailed newspaper editors who criticized him. Jefferson went after journalists, too, once he got into power. It’s all there in the history books -- some of them anyway, the ones that haven’t whitewashed our past.

For more than 100 years, Americans who were against chattel slavery, who denounced the subordination of women, and who condemned the system of wage slavery, were blatantly silenced, censored, arrested, jailed, deported, ostracized, and punished every which way.

All through the nineteenth and for much of the twentieth century, Americans took their lives in their hands when they spoke freely. If they were socialists, communists, or civil rights activists, they were spat-on, clubbed, bloodied, bombed, shot, even killed.

Beginning around the time of World War II, it was widely recognized that an individual couldn’t sue and collect damages if he got in the face of someone else and called him or her a fascist, or a mother------, and was punched. The legal concept came to be known as “Fighting Words” and for decades “Fighting Words” were not protected speech.

All of which brings me to words and images that express contempt for the culture, the religion, and the ethnicity of human beings. They are not protected speech, either. They are words that are tantamount to a physical attack.

For decades, too, we’ve had something called “Hate Speech” in the United States and that’s not protected, either. Call a Chinese woman, or a Congolese man a racial epithet and then beat him or her to a pulp and you’ll be charged not only with assault but with “Hate Speech” and find yourself in prison for a long time.

For too long, members of the dominant culture in the United States felt that they could call members of so-called minority groups whatever names they wanted to call them, such as n-----, as a way to keep them down, keep them in place, and give themselves a sense of superiority, however superficial.

Not surprisingly, members of those minority groups, whether they were Irish or Jews, African Americans or Japanese, didn’t like being called those derogatory names, because names hurt. They hurt more than sticks and stones.

Images hurt just as much if not more than names, and in today’s global world what we say and how we express ourselves travels as quickly as a guided missile all around the world. Images that originate in America have sped thousands of miles and have outraged people in Turkey, Iran, Iraq, Afghanistan, and elsewhere.

This has been going on for decades now. To a large extent the mass media has demonized Moslems, Arabs, and whole populations that live in the Middle East. Is that accidental? It’s probably not.

The First Amendment, as I see it, ought to protect citizens against government censorship. I’m against censorship of all kinds including self-censorship, which is especially pernicious because citizens silence themselves. The state doesn’t have to do it to them.

But our words and our images have real consequences.

Once upon a time, I never would have said this. But I am saying it now: we have to watch what we say if we are to live at peace with one another and not incite violent attacks. Everyone deserves the right not to be assaulted by demeaning words and images and if that means that the First Amendment -- which has often been a fake anyway -- takes a back seat, so be it.

I used to teach a law class at Sonoma State University and one of the things I would say is that whether to speak or not, and what to say, is something that has to be decided and chosen almost day by day. One day, silence might be appropriate, the next day shouting, the day after that guerilla theater.

After more than 200 years of First Amendment history it’s definitely a thorny issue. It’s not static and never has been. It has evolved, changed directions, come to mean different things to different people. The answer to dangerous speech is not to blot it out, but to have more speech and to thoroughly discuss the issues.

That’s difficult in the United States today because on the major television networks and on a lot of cable stations the dialogue is very limited and very safe and rarely wide open, robust, and uninhibited. It looks to me like there are a lot of stations owned by a few major corporations and the stations don’t criticize or look critically at the American political and economic system.

Does any major station really come out and tell the truth about the war on terrorism, or the banks, or the lies of the major parties and their financial donors? I don’t think so. We have a society that gives lip service to the First Amendment and at the same time engages in First Amendment activities in superficial ways.

Yes, the First Amendment is already more than 200 years old, but it’s still in its infancy, learning to walk, and yes, learning to talk. It might help if we don’t think of it as something that’s written in stone, but rather something that needs to be reconsidered and perhaps rewritten.

Americans need to learn about the media, the laws, and the ethics in much the same way that they are learning about fat and sugar and diet and health. If we don’t allow bodies to be poisoned with chemicals, why should we allow minds to be poisoned by toxic messages?

[Jonah Raskin, professor emeritus at Sonoma State University and the author of biographies of Abbie Hoffman, Allen Ginsberg, and Jack London, is a frequent contributor to The Rag Blog. Read more articles by Jonah Raskin on The Rag Blog.]

The Rag Blog

[+/-] Read More...

[+/-] Summary only...

Steve Russell : Hate Speech Without Hate

Cartoon from NJ.com.
The hypocritical heckle:
Hate speech without hate

What strikes me is that much of the hate speech directed towards Indians, African-Americans, Mexican-Americans and homosexuals is uttered by people who know better.

By Steve Russell / The Rag Blog / April 14, 2010

I’ve been accused of making odd connections between events and maybe this is one. When a Republican Congressman shouted “You lie!” at President Obama’s address to a joint session of Congress on health care, most people just thought he was rude.

I was reminded of the motto reporters privately attribute to the Texas Legislature, “vote conservative -- party liberal.” The motto represents rank hypocrisy. The Legislature meets once every two years, when the street price of cocaine and the services of professional ladies go up, demand suddenly overtaking supply. Or so it used to be.

When the heckle came at Obama he was saying that health care reform would not allow undocumented workers to buy into national health insurance, should the United States ever get national health insurance like every other industrial democracy already has.

It’s not possible to say that Obama was lying or that he wasn’t, since there were five bills pending at the time. The one immediately before the House excluded undocumented workers, but Obama was not talking about that or any other bill. He was talking about what he was willing to sign, and he could lie or not until he signed something that did or did not include undocumented workers.

The hypocrisy behind the rudeness is that my Republican friends tell me that they understand hardheaded economics and I don’t. They say that I want to take money from productive citizens and use it to improve the lives of freeloaders: the unemployed, the elderly, the sick. They say if I want to be charitable I should do it with my own money and let them run government like a business, with an eye to the bottom line. Taking care of each other is for churches, not governments.

Health insurance is a not a welfare program. If you wondered how it is possible to cover thirty million more people and still lower costs, the answer is the iron law of insurance: the broader the pool, the lower the cost to each member of the pool. Insurance is a risk-spreading device and more spreading means less expense.

Assuming that every Republican is focused on the bottom line, there would be every reason to cover undocumented workers, not because they do it in Europe but because it would make health care cheaper for us all.

It is of course not possible to cover undocumented workers the way the bills were and are drafted. They achieve broader coverage with a mandate that we all buy in, and the choke point where the buy in is enforced is IRS form 1040. Undocumented workers do not file IRS form 1040.

The first line of hypocrisy is that covering undocumented workers would be a good thing for the bottom line of the taxpayers and the second is that the coverage is impossible anyway. There is no way Obama could have been lying in terms of the final bill unless everything changed.

So why would the Republican congressman falsely call the President a liar? He was pandering to the voters who hate, like the fans of former presidential candidate Tom Tancredo and former CNN commentator Lou Dobbs. Tancredo and Dobbs, and the people who love them, represent the xenophobic side of American politics that started with the ugly things early settlers said about Indians, continued though the removals to Indian Territory, and only went more or less underground after the slaughter of non-combatants was caught on film at the horror we call Wounded Knee I in 1890. But did the people who spent time with Indians really believe the nonsense about ruthless savages?

All the most successful Indian fighters fought beside Indian scouts, often but not always from tribes with historical grievances against the immediate enemy. Crow scouted against Lakota and Tonkawa scouted against Comanche, but Apache also scouted against Apache. My point here is not to criticize Indians for settling scores but to criticize white people for lying about the people they worked beside.

It’s hard not to notice that the congressional heckler, Joe Wilson, was representing the great state of South Carolina, where hate and hypocrisy are apparently an art form. It was South Carolina Governor and then Senator Strom Thurmond who made a career as a segregationist while carrying on an affair with a black woman who bore his daughter. It was current South Carolina Governor and “family values” advocate Mark Sanford who made the phrase “hiking on the Appalachian Trail” an odd synonym for getting horizontal with your girlfriend.

The distance from South Carolina to Washington is like the distance from rural Texas to Austin in cultural terms, and like the distance from the Dakotas to the East Coast in the history of Indian relations.

What strikes me is that much of the hate speech directed towards Indians, African-Americans, Mexican-Americans and homosexuals is uttered by people who know better. That they don’t really believe that nonsense often jumps out in their life histories.

In my generation, the late George Wallace was a veritable avatar of racism, proclaiming after an early political loss “I will never be out-niggered again!” But in his last term as Alabama governor, he not only had recanted his segregationist views, but he went on to set a record for the number of blacks appointed to state office.

There is a major strain of politics in Indian Country that is all about Indians as a threat to “equality” for white people, holders of “special privileges.” The major fear points are trust land being off state tax rolls and white people who live on Indian land being subjected to tribal laws.

The dittoheads in this controversy have never considered that when they are citizens of New Mexico driving on a Texas highway, they are subject to the laws of Texas, a “foreign” sovereign. Every time you drive on the land of a pueblo in New Mexico there is a big sign informing you that you are entering the sovereignty of that pueblo. The political leaders who whip up outrage over Indian sovereignty, on the other hand, know this, and they know that the only possible objection to being subject to tribal laws is racism.

Much if not most political hate speech, I am convinced, is uttered for political advantage by people who really do not hate the people they are using to arouse a following among voters for whom they have no respect at all. For those of us subjected to the hate speech, knowing it is uttered by knaves to influence fools is cold comfort.

[Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment. He recently retired as an associate professor of criminal justice at Indiana University. His writing has been published widely; he is a columnist for Indian Country Today and a contributor to The Rag Blog. Steve was an activist in Austin in the Sixties and Seventies, and wrote for Austin’s underground paper, The Rag. He lives in Sun City, Texas, near Austin.]

The Rag Blog

[+/-] Read More...

[+/-] Summary only...