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Toledo Legal News - Editorial List Table

 

Free speech isn't always valuable. That's not the point

 

You may think you love the First Amendment. You may get misty-eyed just thinking about it. It calls to mind Woodward and Bernstein unraveling the Watergate scandal, Dr. King leading the March on Washington, Voltaire proclaiming, "I disapprove of what you say, but I will defend to the death your right to say it." (Voltaire didn't actually say that, but he probably wouldn't mind that you think he did.)

But sooner or later, you will come across something that will make you wonder just what's so great about freedom of speech.

It could be a campus speaker arguing that Hitler might have been onto something. Or a protester burning an American flag. Or your neighbor's teenage son, who just bought a drone on Amazon and is now using it to take pictures of your front yard.

You will not disavow the First Amendment (because you love it, of course). You will squarely place the blame on those idiots who are clearly misinterpreting what it means, who think that free speech is somehow a free pass to be a total jerk. They're the problem, you tell yourself. The First Amendment, when applied properly, is great.

Maybe it's time for us to come to terms with the truth: While everybody loves the First Amendment in theory, nobody's all that fond of it in practice.

Consider the massive popularity of partisan media, and, as The Wall Street Journal's "Blue Feed, Red Feed" project has shown, the complete lack of overlap between liberal and conservative Facebook feeds. We love speakers and media outlets that articulate the thoughts that we were already thinking. We can barely tolerate the ones that contradict our world view. As Nat Hentoff argued in his book, "Free Speech For Me But Not For Thee," most of us struggle with the desire to relentlessly censor one another.

Supreme Court Justice Oliver Wendell Holmes understood this back in 1919: "Persecution for the expression of opinions seems to me perfectly logical. If you...want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition." Of course, he followed this with an instruction to resist this natural urge, and to think of speech as a marketplace where all ideas should be allowed to compete so that the best ideas can emerge victorious.

It's nice to think about a bustling marketplace of ideas, but it might be a little tough to hold that cheery picture in your mind when you think about, say, the First Amendment right to sell dog-fighting videos, or to hold up a "Thank God for dead soldiers" banner outside a military funeral. When you picture a marketplace, you can't help but assess the value of the goods for sale. Do we really have to make space for the vendors selling rotten fruit, or that candy that contains trace amounts of lead?

Hate speech may be protected by the First Amendment, but what benefit do we actually derive from it? How much did Milo Yiannopoulos's controversial campus visits contribute to intelligent debate when his speeches primarily revolved around publicly ridiculing audience members and basking in his own outrageousness? If the point of free speech is to encourage that intellectual marketplace, to make us a better society, why should we care about defending speech that we find intellectually worthless?

But there's another way to look at the First Amendment. Maybe we shouldn't think about free expression in terms of value. Free speech isn't always valuable, no matter how loosely you define that word. Sometimes it's hurtful, or nonsensical, or idiotic. What's important is that free expression rights are always indivisible. Remember: The First Amendment protects your speech from government censorship. It's meant to keep the power to decide what's valuable expression and what isn't out of the hands of public officials. You are not in competition with the people who disagree with you. In the real conflict, all of us are on the same side: How much control over speech do we want to cede to the people in power?

In other words: Your rights are my rights. This is true even if I hate you. Nevertheless, I have to stand up for your rights to speak, to publish, to protest, even if I think your opinions are junk and you are wrong about everything. Not just in service of a lofty ideal, but also out of my own self-interest.

The same holds true for you, for all of us. You may advocate for hate speech policies that will silence bigots, but once they're passed, these same laws can be used to silence you. You may support laws that are intended to restrict and neuter public protests, but you will find yourself without many options when it comes time to stand up for a cause that you believe in.

You don't have to love the First Amendment. Just acknowledge that we all need it.

Lata Nott is executive director of the First Amendment Center of the Newseum Institute. Contact her via email at lnott@newseum.org. Follow her on Twitter at @LataNott.

Lata Nott, First Amendment Center

In praise of pragmatism

 

As you watch the healthcare proceedings on Capitol Hill, imagine what things might be like if we lived in more functional political times. In particular, what if Congress were run by pragmatists?

It would not change the issues at hand. On the one side, you’d have the Republican majority in Congress, which for the most part believes that the healthcare system should be left to the private sector. On the other side would be Democrats who, to varying degrees, see an important role for government to play.

What would change would be how the two sides reconciled their differences. Rather than maneuver the proceedings for political gain or worry first about their political bases, they’d be dead-set on a healthcare overhaul that improved the system and was politically sustainable.

I don’t think our system can work without such an approach to our problems — healthcare and everything else. So what do I mean by “pragmatism”?

At heart it’s a mindset, a preference for a practical, workable solution to problems. It recognizes the diversity of our country and the need for compromise, negotiation, dialogue, and consultation in order to reconcile conflicting interests and viewpoints. Pragmatists ask themselves how they can best navigate the differences, factions, and political frictions inherent in any substantive issue so that everyone can leave the table having achieved some gain.

Let’s be clear that this is hardly an easy approach. On Capitol Hill, you work under intense scrutiny and pressure in a dynamic, always-changing, politically supercharged environment. You can’t make the world stand still while you work through the problems.

And if you’re trying to hammer out agreement, you have to keep the conversation moving; when a group or a participant threatens to walk out, you have to calculate whether you can get the votes you need without them. If not, you have to keep them at the table, even if it means nights that stretch into the early morning. And always, of course, you have to try to keep things as courteous and civil as possible.

You also have to be very careful of labels. When you’re trying to solve problems, labels get in the way. I’ve had my share of fraught negotiations, and what I focused on most was trying to figure out whether people at the table wanted to solve the problem and advance a solution, not whether they were Republican or Democrat. And you’re constantly counting votes, because you don’t get anywhere without a majority of them.

So you have to pause, hesitate, weigh the situation, calm the passions, figure out what’s achievable — and then decide whether or not what’s possible is actually worth getting.

Because there are risks to pragmatism in politics. For starters, some issues should not be compromised: to my mind, they include basic values involving torture and the right to vote.

And the pragmatic approach tends not to produce dramatic breakthroughs; it’s incremental, step-by-step, unglamorous work. It means downplaying ideology. This is difficult in these partisan days, yet I was always wary when I heard a fervent ideological speech in the middle of negotiations — it’s an expression of principle, yes, but it raises the question of whether the person giving it is going to help you reach an agreement or not.

Which is why you get a lot of criticism as a pragmatist. People inevitably accuse you of not doing enough or of giving away too much. You’re often accused of abandoning your principles. You have to ask yourself what’s really important in this negotiation, both to yourself and to the others participating: how much can you give to get support for that principle, how much do you have to give up, and is it all worth it?

Yes, indeed, I’d argue, because the country would implode without the pragmatists. The challenge that our political leaders face is how to get through the thicket of conflicting principles, interests and dogmas in a sprawling democracy like ours. All too often, politicians lock themselves into a position: they give a speech to loud applause, then another, and soon enough they have no room to maneuver. In the end they, too, often have to rely on the pragmatists to get things done.

Lee Hamilton is a Senior Advisor for the Indiana University Center on Representative Government; a Distinguished Scholar, IU School of Global and International Studies; and a Professor of Practice, IU School of Public and Environmental Affairs. He was a member of the U.S. House of Representatives for 34 years.

Lee Hamilton, Center on Congress Senior Advisor

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