A Case Against the First Amendment

One of the most esteemed parts of the United States Constitution is the First Amendment, which reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Certainly, this will sound like a good idea to the vast majority of people. Most people would agree that a state which is allowed to interfere with the speech, writing, assembly, and religious beliefs of its subjects can quickly become oppressive and authoritarian, and that people should be able to seek a redress of grievances from the state. But there are several flaws with this position. Let us examine the failings of the First Amendment and why a free (stateless) society would be better off without this standard.

The first thing to note is that the interpretation of this amendment, like every other part of the Constitution, is decided by judges who are paid by the state in courts which are monopolized by the state. Thus, the First Amendment means whatever people in black costumes say it means, which need not be in keeping with common usage or dictionary definitions because there is no effective challenge to their power once the appeals process is exhausted. (There are the possibilities that a judge will be impeached and removed or that the Constitution will be amended, but these possibilities are rare enough to dismiss in most cases.) The incentive of people who are paid by the state is to encourage the health of the state, which means erring on the side of expanding the size and scope of government as well as kowtowing to popular opinion rather than handing down consistent rulings. This constitutes a threat to individual liberty and tends toward the curtailment of civil liberties.

This has produced results both interesting and disturbing. The Supreme Court never ruled on the Alien and Sedition Acts while they were in force, only noting their unconstitutionality in New York Times Co. v. Sullivan (1964). In 1919, the Court ruled on four cases resulting from the Espionage Act of 1917 (though it did not rule on the constitutionality of petitioning against the Act). From these cases, a standard of “clear and present danger” was invented to allow the state to interfere with the rights enumerated in the First Amendment in an ultimately arbitrary fashion. In Valentine v. Chrestensen (1942), the Court upheld a New York City ordinance forbidding the “distribution in the streets of commercial and business advertising matter,” even though such a restriction is clearly arbitrary and capricious (this was overturned in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976)). In Dennis v. United States (1951), the Court upheld the Smith Act, which criminalizes the advocacy of overthrowing any level of government in the United States. In Roth v. United States (1957), the Court ruled that obscenity is not protected, and adopted a definition that relies upon “contemporary community standards,” which can be arbitrary and capricious. In New York Times Co. v. Sullivan (1964), the Court ruled that publishing statements “with knowledge that they are false or in reckless disregard of their truth or falsity” can constitute a civil offense. In Pruneyard Shopping Center v. Robins (1980), the Court ruled that “individuals may peacefully exercise their right to free speech in parts of private shopping centers regularly held open to the public,” meaning that any private property used for commercial purposes is effectively no longer private, as the owners may not exercise their freedom of association to expel people from their property if their reason for doing so is a difference of opinion over speech.

To make a case against the First Amendment, one must first understand its function. It was commonly understood by the Framers that rights do not come from the state, but are inherent in each sentient being through what later theorists would call self-ownership. Therefore, the First Amendment was written not to give people the rights it enumerates, but to limit the use of government force against petitioning the government, as well as against speech, writing, religious activity, and peaceful assembly in public spaces. But the First Amendment was only necessary because the Constitution purports to authorize and legitimize a government that imposes common spaces upon the society and poses a threat to the activities enumerated by the First Amendment. If the state were abolished and its common spaces returned to private ownership, then the need for such a mitigating element protecting communication, religious activity, and peaceful assembly vanishes a fortiori, as does the need to petition an entity which would no longer exist. It must also be noted that when the state does actually redress the grievances of one person or group, it almost always commits more grievances against another person or group while doing so.

In a stateless society, the lack of a coercive monopoly eliminates the need for a right to petition. If one has grievances with a person or group in such a society, one handles it much as one deals with other non-state actors today. First, an attempt to negotiate directly is made. If this fails, then one may seek arbitration with a neutral dispute mediator. If this fails, then one may initiate legal proceedings, though this would be accomplished through private courts rather than a state’s court system. Finally, one may resort to the use of force in self-defense. In criminal matters, one would be justified in skipping the first two steps by immediately resorting to legal proceedings or defensive force. Also note that while states initiate the use of force against people who would dissociate from them, this behavior would not be tolerated in a stateless society. A person in a stateless society is thus afforded the option of ostracism of a person or group which causes grievances, as well as the options of associating with their competitors or becoming their competitor oneself.

At first glance, freedom of speech, writing, assembly, and religious beliefs may appear to be reasonable standards for a free society to protect, but these are not fundamental rights that can be traced back to self-ownership. The fundamental rights in a free society are self-ownership, private property, freedom of association, and freedom from aggression. One might object that one must speak or write in order to argue against freedom of speech or freedom of the press, or that one must assemble in order to argue against freedom of assembly, thus creating a performative contradiction, but this only applies within one’s own property or an unowned place. No one has a right to enter into another person’s property and engage in any speech, writing, assembly, or religious activity that is against the wishes of the property owner, and it would be exceedingly difficult (if not impossible) to contrive a situation in which the Reecean proviso would grant an exception. If a person does so, then the property owner has the right to curtail that person’s speech, writing, assembly, or religious activity by trespassing the person from the property and physically removing the person if necessary.

This sort of societal arrangement provides several benefits over a statist system which imposes common spaces upon the society. In a society with common spaces, people at cross purposes will seek to utilize those commons, which necessarily provokes conflicts. This, of course, provides a perfect excuse for the state to raise taxes and expand its security forces in order to “solve” the problem that the state creates in the first place. The only way to truly solve the problem of the commons is to eliminate all common spaces. Once this is done, people with unpopular and abhorrent views will have to either provide for their own security and keep their advocacy within private properties in which such views are welcome or be silenced. No more will such people be able to promote their ideas virtually anywhere and stick the members of society who oppose them with the bill for their protection. At long last, those who promote ideas which are at odds with liberty, such as democracy, fascism, and communism, will be able to be cast out of a libertarian community.

To conclude, the First Amendment is an attempt to mitigate evil rather than to snuff it out, and the misuse of its concepts has infringed upon more fundamental rights. While people living in a free society could decide that they wish to uphold the ideals of the First Amendment within their communities, there are clear reasons not to do so.