The Folkloric First Amendment

One curious part of online discourse almost since the beginning of the Internet has been the way that the First Amendment figures as an iconic artifact at certain recurrent moments, almost as much as the comparison-to-Nazism described by Godwin’s Law.

The most curious of all the curious recurrences is a brandishing of the First Amendment as a guarantee of freedom not just from government restriction but from social or cultural critique. See for an example the case of one Denise Helms, whose racist comments on Facebook have been circulating around the Internet. The defense of Helms by a few commentators often takes the form that the First Amendment guarantees her right to say what she said, so everybody should just shut up about it.

That’s a very common kind of structure of response in these situations. This is curious for two reasons. The first is, of course, that it is untrue in every possible sense. It is not what the First Amendment says nor is it even a coherent propositional extension of what it says. You cannot assert that the First Amendment protects the right to speak freely except if your free speech is a critique of someone else’s speech act.

More deeply, and you can see it in what Helms said when interviewed in television, is the defense of the particular speech act as profoundly inconsequential and yet also so passionately felt that it is not explained as a mistake or exaggeration. “It was a joke”, or “I don’t really feel exactly like that” or “Calling someone a nigger doesn’t mean I’m racist” and so on. This is embedded in the idea that one has the right not only to say whatever one wants without anyone replying or criticizing but that the First Amendment is a guarantee of hermeneutical freedom too, that it is the ultimate in statutory Humpty Dumptyism: words mean what I say and say what I mean, and no one can tell me otherwise.

So Helms, or the many who have preceded her in similar moments of argument and dispute online and offline, defines free speech as speech that is completely free of social context and completely free of semantic relation to culture, history or language. It is a kind of folkloric echo of Randian objectivism applied to the First Amendment, but of course, this view can never explain one crucial fact: then why bother to speak at all? To whom are you speaking? How could you expect anyone to understand you if your words must be freed from what most listeners would commonly understand them to mean?

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5 Responses to The Folkloric First Amendment

  1. Withywindle says:

    “I feel X, and you can never contradict or critique me because my feelings are mine and deep and sincere and blah blah blah.”

    I don’t particularly see why “Randian” is a necessary description; it’s the tweenerizing of America, ongoing for at least a generation. Even, dare I say it, among some lefty Swatty students in my classes in the way-back. I suppose I could make a polemic saying it’s part of the Left Corruption of America; but I don’t feel much enthusiasm for that argument, since it seems to be a universal failing by now.

    Although I was just reading an article about how Socrates’ rational persuasion generally fails to work on his designated [victims/interlocutors], which suggests that people haven’t been terribly good at taking their arguments seriously for a good long time now.

  2. greglas says:

    Perhaps blame the commercialization of discourse? For many, I think, “freedom” is primarily understood today as “freedom from consequence,” rather than freedom to act in ways that create consequences. I can’t help but think that has something to do with a price-related understanding of “free.” Compare to the F/OSS world, which emphasizes the difference between free speech and free beer ( — the confusion here is in understanding the two usages as essentially identical.

  3. LFC says:

    I think the post could be clearer on a basic point: the First Amendment has nothing to do with this b/c the First Amendment does not affirmatively give anyone a right to say anything. The First Amendment prohibits government from restricting most (not all) speech. If there is no ‘state action,’ to use the legalese, there’s no First Amendment issue. For example, if a hypothetical private university that received no money from state or federal govt instituted a code prohibiting students from saying anything critical in public or private about the university’s president, that rule would not violate the students’ First Amendment rights. It might violate some general philosophical “right to free speech,” but it would not violate the First Amendment.

  4. Lemmy Caution says:

    That woman is a dumbass, but folk theories of the first amendment are perfectly reasonable. If you want to allow for a free exchange of ideas you have to protect speech from more things than just government interference. Things like being fired for what you say on Facebook. Stronger informal cultural norms protecting free speech are a good idea.

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