Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.
The tragedy in Tucson has spawned the repetition of a false understanding of the First Amendment. By now, we all know about Sarah Palin's virtual target on Representative Gabrielle Giffords's district, Rep. Giffords's November opponent and his constant gun references, Glenn Beck's odd request to keep the peace next to a jack Bauer-esque photo of him ready to fire a weapon and the harsh invectives that have more recently characterized our political discourse. We also probably know about Ms. Palin's defense — they were surveyor marks, not rifle targets, and besides, it is our First Amendment right to say what we want.
Setting aside the fact that the surveyor mark argument does not pass the smell test, it is the First Amendment argument that I would like to discuss today. We've heard it a lot. Free speech allows the Westboro Baptist Church to protest military funerals and say the most terrible things about America, gays and pretty much everyone else. It allows Virginia Foxx to call gays demented and a more serious threat to national security than the Taliban. It even allows us to use the Internet to verbally harass our peers to some extent. Of course, there are exceptions, but the First Amendment allows us to say terrible things because in our tradition, we worry less about the free flow of crappy ideas and more about the totalitarian implications of no flow of ideas in the first place.
But, whether you can say something is different from whether you should say it.
And, that is what the discourse about civility in Washington is about. It is not about our right to say stupid things, but our loss of control over the propriety of what we say. This makes waving the flag of the First Amendment irrelevant, and a red herring that people like Ms. Palin use to not only absolve themselves of responsibility, but also to avoid expressing any hint of contrition. Herein lies the problem.
I have yet to find an article, op-ed piece or back-of-the-napkin doodle in which Ms. Palin's favorite monsters — the so-called "main stream media" and the "looney left" — have argued that the target map should be illegal or a type of banned speech. Most of the articles I have read that called for some legal changes have jumped the gun (no pun intended) and called for strong gun control laws, but those laws ban guns, not speech. Some pundits have called for greater protections for members of Congress, but an increase in security does not hinder speech.
Horrible invectives, vicious attacks and bellicose hateful speech may not have caused a wacko like Jared Loughner to pull the trigger, but that does not mean we cannot use his heinous act as a springboard for discussing civility in Washington. Nor should the First Amendment be used to short circuit that discussion. The First Amendment sets a floor of what the government can or cannot censor. It expresses no normative opinion as to the merit or value or (im)morality of what speech it allows in to the public sphere. That is not its job. As such, it is no defense to the Ms. Palin's of the world who fail to show the judgment of mature adults (let alone statements) when they take the great power given them by the First Amendment and use it irresponsibly. And, irresponsible and immature use of our freedoms merits condemnation.