NRO and the First Amendment

Andy McCarthy has an interesting comment on the First Amendment on the National Review’s blog. He argues in part:

[Some argue that] “The remedy for bad speech is more speech.” This, effectively, is the Holmesian “marketplace of ideas” trope that is just an excuse for not thinking. If someone’s bad speech is a fatwa that sets a WMD attack in motion, my ability to speak out against the fatwa will be cold comfort to the dead. The First Amendment does not countenance commands to murder, and Speaker Gingrich is entirely correct to challenge us to think through these principles.

I’ve said many times that I’m no con law maven. But I don’t get this point. As McCarthy admits, Brandenberg would seem to allow regulation of “commands to murder”: they are “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Moreover, McCarthy seems to believe that an “original understanding of the First Amendment” would lead to a different understanding of the text. What can he mean by that? Reversing the incorporation of the Bill of Rights?

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7 Responses

  1. Andrew says:

    One need not reverse incorporation to gut freedom of speech. Some scholars believe the First Amendment was originally was read to apply only to prior restraint. Under that version of the “original understanding,” the radical mullah would be free to preach murder, but as soon as he did, Gingrich and the feds could swoop down on him.

    This reading has been universally repudiated since Jefferson and the reaction to the debacle of the Sedition Act of 1798. One could see the NRO folks favoring making it illegal to “write, print, utter, or publish” anything critical of the President–as long as his (or her) name isn’t Clinton.

  2. KipEsquire says:

    Or it could be the Borkian fallacy that freedom of speech applies only to purely political speech, and that all other forms of speech — including commercial, artistic and (arguably) “seditious” speech — enjoy no First Amendment protection of any kind.

  3. Heidi Kitrosser says:

    Just to elaborate a bit on Andrew’s comments — the unfortunate “prior restraint only” argument first took hold as a Federalist argument in favor of the 1798 Alien & Sedition Act. The flimsy basis for the argument was that the 1st Am. incorporated William Blackstone’s understanding of free speech as only protecting against P.R.s. The core problem with this argument is that there’s no reason to think that the framers intended to incorporate only Blackstone’s limited view, and many reasons to think to the contrary. But somehow that 1798 argument resurfaces from time to time, including in Supreme Court opinions. (I believe, for example, in Near v. Minnesota) Of course, the Court in other cases explicitly rejects this view of history, but the citations, of course, live on and resurface from time to time, much like Freddy and Jason in the movies …

  4. Help me out with Blackstone’s position … I am aware that he opposed prior restraints, but didn’t he think subsequent punishment should only be the result of a finding of harmful consequence? So, merely saying something would not have been enough for an arrest. Right? No?


  5. Heidi Kitrosser says:

    PSR: You’re right that Blackstone, just like the 1798 A & S Act’s framers, spoke of the harm that political speech can cause. But the question is whether the political branches are given free reign to define (and then sanction) “harmful” speech, or whether the judiciary will carefully scrutinize such judgments (as in the modern case law, e.g., NYT v. Sullivan; Brandenburg). Blackstone effectively sided with the former, explaining that the political branches can punish even truthful political speech if they deem it “offensive” and at odds with “peace and good order.” That’s where his P.R. point came in — he said that “liberty of the press” protects such speech against prior restraint, not against free reign to punish after the fact.

  6. Thanks for the clarification. That is interesting stuff.


  7. …and Andrew shows that he probably never reads NRO as many of the posters there have been relentless in their criticisms of our current president.

    and to follow up what KipEsq says – of all the current Justices, Clarence Thomas is probably the closest to all free speech, all the time…I know that doesn’t add much but the games still on and I enjoy giving my favorite Justice a shout-out at every opportunity.