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.

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  • b.a. freeman

    i’m all for not having a State, as i don’t like trusting any large, powerful organization with that much power over me. the problem is more practical and arises when U actually try to do without the State; unless U live very quietly in an unpopulated area, U will likely encounter somebody who will endeavor to take your stuff (and probably your life, so that U won’t present any problem to him in the future). people have formed organizations which have become Governments, probably as long as there have been people, and most of the behavior of most of those Governments has been monstrous.

    if there were no States anywhere and all people were libertarian, this might have a chance of working. what do U propose doing in a world corrupted by the existence of States?

    • Matthew Reece

      I propose that people form a culture of resistance, which means that a significant percentage of the population of an area should be able and willing to kill in self-defense those who would commit acts of aggression against people or their property. Larger defense projects, such as the maintenance of military vehicles and a nuclear deterrent, can be accomplished through private defense agencies, none of which the people would allow to have a monopoly over any particular area.

  • Coralyn Herenschrict

    Well articulated. A lot of unconventional thinking all backed up with sound reasoning. There is no right to free speech. Pretending there is reinforces a lot of false premises about the source of rights and nature of government.

    The fundamental rights in a free society are self-ownership, private property, freedom of association, and freedom from aggression.

    Private property is the only right. Self-ownership is a manifestation of a private property right in one’s own body. There is no such thing as a right to freedom of association. There is no right to associate or dissociate apart from the right to use and control of private property. Like speech, association is just an activity like any other conducted under the aegis of private property rights in land and bodies.

    There is no such thing as a positive right to “freedom from aggression.” And if expressed as a negative right that’s identical to saying “right to property.”

    • Right you are. According to Locke there are three natural rights:
      Life: everyone is entitled to live.
      Liberty: everyone is entitled to do anything they want to so long as it doesn’t conflict with the first right.
      Property: everyone is entitled to own all they create or gain through gift or trade so long as it doesn’t conflict with the first two rights.
      As I frequently point out, the US Constitution is claimed by the ruling class to authorize the annulment of Natural Rights and the granting of privileges instead. (Which are then called ‘rights.’)
      Something very few people understand.

      • Coralyn Herenschrict

        Er, I’d never say people are entitled to live. If I’m entitled to live that means others must supply me with what I need in order to live. It means if you start a competing business bankrupting my business leaving me unable to afford lifesaving medical care, then you violated my entitlement to live.

        Instead, I’d say I have a negative right to my body. That just means you can’t initiate force against my body. Keeping my body alive by being productive enough to supply myself necessary food, shelter, medical care is all my problem, not yours.

        Rothbard says:

        The libertarian creed can now be summed up as (1) the absolute right of every man to the ownership of his own body; (2) the equally absolute right to own and therefore to control the material resources he has found and transformed; and (3) therefore, the absolute right to exchange or give away the ownership to such titles to whoever is willing to exchange or receive them. As we have seen, each of these steps involves property rights…

    • Matthew Reece

      Freedom of association is valid because arguing against it constitutes a performative contradiction; you must freely associate with the recipient of your argument in order to argue against freedom of association. Furthermore, to argue against freedom of association is to argue that people should not be free to peacefully use their own bodies as they see fit, which goes against self-ownership.

      Freedom from aggression is a restatement of the non-aggression principle, which imposes an obligation on other people not to initiate the use of force against you or your property.

      • Coralyn Herenschrict

        I agree freedom of association is valid. As free speech is valid. If you own the property you stand on (or have permission from its owner) you may say anything you want or may associate any way you want. But neither speech nor association is a right. Just one of any number of ways a person can elect to use property if he has the right to use that property in that way.

        I don’t need to associate with anyone at all to argue freedom of association is not a distinct right. I can sit in isolation writing my argument on paper. I can post it in the town square in dead of night never interacting with anyone. How I argue the matter is immaterial.

        To appreciate how association is not a right, just set freedom of association in conflict with property. Imagine a sexy woman in elegant red dress sitting in the window of a bar. She beckons at a passing handsome artist in torn jeans to join her. He eagerly attempts to but is stopped by the bouncer. The bar owner’s rules deny the man entry for lack of proper attire. These two people would like to associate in that bar, but they may not. Because free association is not a right. Only property is a right.

        Imagine a gated private community with its own private roads, parks, recreational facilities, and shops. All contractually agreed to along with purchase of the property. At time of land purchase only white people occupied the community. Years later, black people move in and make liberal use of the common spaces. The front gate attendant, with whom one is required to interact for security purposes in order to gain access to the community, is black. May a white, racist homeowner object his freedom of disassociation is being violated? No, because no racial provisions were included in the common area property use contract he signed. All he can do is find different property to occupy. Move to a different private community that maintains racial restrictions or affords him means of dissociation such as segregated facilities and a segregated entrance.

        Association and dissociation are not rights in and of themselves. They are just privileges of property use contingent upon having the property rights needed to use property in that way.

        • Matthew Reece

          If you choose to make your argument available to anyone, then you are freely associating with that person to some degree. If you never make your argument available to anyone, then it is irrelevant because it affects no one.

          Free speech and free association are corollaries of self-ownership, but property rights are a stronger corollary of self-ownership. Therefore, property rights overrule free speech and free association when these rights are in conflict, as your bar example demonstrates.

          • Coralyn Herenschrict

            You employ a curious definition of the word “association.” The dictionary I consulted defines it as “to come or be together as partners, friends, or companions.” I have read Thomas Jefferson’s written arguments. By your definition he and I are each exercising our “right to free association” with respect to each other, even though he has been dead for some time.

            But even if your definition were valid, I state only that free association is not a right. Which is no contradiction with the practice of it. If our conversation right now constitutes mutual association, that simply means we both are associating as a privilege of the property rights we hold in our bodies and the servers hosting the conversation, not necessarily that we associate as a right.

            If your hypothesized “right of association” does exist, but it always and forever is subordinate to property as you seem to concede, then what is a right of association dominant to? Libertarians hold all that is not forbidden by the boundaries of respect for others’ property rights is allowed. Freedom of association is thus on par with the freedom to eat ice cream and the freedom to dance naked like Miley Cyrus in the living room. None of these are rights because none are philosophically established as means of survival of man according to his nature. These are just freedoms of behavior subject to holding the necessary property rights.

            If one person’s dancing were thwarting another person’s ability to associate, the dancer could point to his right of property allowing him to dance or the associator could point to his right of property allowing him to associate. Any conflicts in behavior are immediately referred back to property rights to get resolved because property is the only right.