CONCLUSION

King George III’s prior restraints, laws of sedition, and tariffs on tea and stamps left us all a little brain damaged—we have become tarred and feathered in mind. We do not trust the government to regulate our lives, and we never really have.

SUCH A SAD state of affairs is the condition of the First Amendment. Exploited by immoderate, hostile speakers. Undefended by those who lack the moral courage and independence of mind to rein it in. Defenseless against slippery-slope projections. We see this in many aspects of First Amendment law—an unwillingness to defend with moral conviction a line that can actually be drawn, one that would separate speech from non-speech. Doing so would give the First Amendment a far nobler purpose than as an unapologetic defender of neo-Nazis, Klansmen, white separatists, and other groups of haters with violence in their heads.

For too long now we have treated the Free Speech Clause of the First Amendment as both an article of faith and a leap of faith. We say it requires no further improvements. We disable our reason rather than insist on reform. But we must remember that it is itself only an amendment. Moses did not carry it down from Mt. Sinai. It was absolutely written by men and can surely be changed by women and men. Indeed, it came to life because of the need for a change in doing away with authoritarian governments. But that enlightened project did not come to an end. It was designed with further tinkering in mind. Literature professor Ulrich Baer wrote that “[f]reedom of expression is not an unchanging absolute. When its proponents forget that it requires the vigilant and continuing examination of its parameters, and instead invoke a pure model of free speech that has never existed, the dangers to our democracy are clear and present.”⁴⁰⁵

The grand, evolving American experiment that the Framers wished for our new republic did not begin and end with self-government and representative democracy. It also included foundational laws. We have been trained, from our revolutionary beginnings, to cast aside the tyranny of monarchs and their unjust laws that violate our natural rights. This is the legacy we adopted from having separated, forcefully, from King George III. His prior restraints, laws of sedition, and tariffs on tea and stamps left us all a little brain damaged—we have become tarred and feathered in mind. We do not trust the government to regulate our lives, and we never really have.

But somebody has to be in charge, minding the store and enforcing discipline and responsible citizenship. That is the essence of our democracy, too. Fair play and equality are no lesser freedoms than speech. Our Founding Fathers did not give birth to a new nation so as to permit the purveyors of hate and raiders of dignity to turn the Constitution into the sort of detested document that starts a revolution.

We could have all simply remained subjects of King George III if that is what they wanted.

So what to do now then?

We could add a new amendment to our Constitution—one that reflects the values of human dignity that are found in nearly all other liberal democracies—a constitutional right to dignity that would offset the free speech priorities of the First Amendment. After all, we added the Thirteenth, Fourteenth, and Fifteenth Amendments immediately following the Civil War precisely to redress the gross injustices of slavery and to invoke a new set of rights that would acknowledge that dark American past.

It could be done here with dignity.

But we do not have to go that far and take such action. The right to privacy that has been read into the penumbras of several amendments to the Constitution did not result in an amendment that granted women reproductive freedom over their bodies, or men and women the right to choose same-sex partners. The Supreme Court made those interpretations straight from the existing amendments and, for the time being, these rights are now settled law. Privacy was read into the Constitution; it was not put there by amendment.

The Supreme Court could similarly find a right to dignity in the penumbras of the existing amendments. It could also elevate dignity—and the right not to be assaulted by the free expression of another—as yet another element of the right to privacy, alongside abortion, homosexuality, and marriage.

But the Court does not have to go that far either. Supreme Court case law already exists that could place restrictions on assaultive, weaponized, and threatening speech, simply by expanding some of the proscribed categories already listed in Chaplinsky, Beauharnais, and Brandenburg, and the low-value speech identified in Virginia v. Black.

Hate speech, narrowly defined by the Supreme Court as that which is not really speech at all because it is absent of ideas and therefore contentless—and delivered in such a manner and with such nefarious intention that its purpose is only meant to harm another, to render citizenship meaningless, and to make venturing out in public a hazardous enterprise—could be disqualified from First Amendment safeguards altogether. Local communities that pass such ordinances would then no longer have them invalidated by a Supreme Court that only has eyes for speech and is blind to human dignity.

And, finally, now that neuroscience has allowed us entry into the once mysterious workings of the human brain, and we know the physical and emotional consequences of weaponized words, damages for the intentional infliction of emotional distress should not find themselves overturned by a free speech defense that should have no place in a civil action, as it did in Snyder v. Phelps.

But what we most certainly should not do is nothing.