“I’m struggling these days with the First Amendment. I’ve always been a strong supporter, but lately, not so much.”
That’s how Lawrence N. Meyerson starts his New Jersey Star-Ledger guest column of 11/6/17. (Free speech: Where do we draw the line?).
As the title and opening lines suggest, Meyerson seems to be calling for rolling back First Amendment protections. But in the following paragraphs, Meyerson approvingly documents cases in which private establishments open to the public have restricted or banned “offensive” symbols and language.
For example, in 1970, a security guard in Disneyland ordered Meyerson, then a young college student, “to turn my shirt inside out so that the name ‘Oar House’ would be hidden. Apparently, the name was too suggestive for Disney.” More recently, Meyerson’s wife observed a passenger at LaGuardia Airport “wearing a pair of jeans with a swastika knee patch. . . . Neither of us could fathom why an airline would allow this person on the plane.”
He goes on to ask;
The big question is where do we draw the line? When should an employee be fired for the use of offensive language? When should a football player be ostracized for kneeling during the national anthem? When should a passenger be refused passage on a train or plane because of his or her use of offensive symbols?
In conclusion, Meyerson writes:
First Amendment or not, we need to continue to be vigilant on moral grounds. It’s a simple rule, the use of words and symbols that denigrate entire groups of people, or remind them of the horrors visited upon them, may be legal, but they are immoral and should be publicly shunned.
Meyerson seems to be confused about the First Amendment, I believe. It’s a widespread and dangerous confusion shared by many people.
The First Amendment is a restriction on government from interfering in the private expression of ideas, whatever those ideas are. It is not a restriction on private citizens or private organizations restricting or banning what they consider offensive speech on their own private property.
The First Amendment does not forbid private citizens from being “vigilant on moral grounds”—drawing their own lines. Disney’s action does not violate the First Amendment. The airline had a right to ban that passenger on its plane, if it chose, without violating the First Amendment. If the government banned the “Oar House” shirt or the swastika jeans, that would be a violation. I agree with Meyerson’s entire last paragraph, with the strong exception of the first four words , “First amendment or not.” We needn’t question or weaken the First Amendment in order to be able to use our own free speech and private property rights to oppose, shun, or ostracize individuals for what we consider immoral expressions. The First Amendment protects our right to disagree.
It is crucially important to distinguish between government action, which is force by law, and private voluntary action, which excludes force. There should be no line drawn against free speech based on offensiveness by government. Who can even define “offensive?” “Hate speech” laws and the like would put government in charge of determining what is acceptable to say, print, or display outside the home. Who gets to set the standards defining “offensive” for the purpose of law? Meyerson doesn’t explicitly call for such laws. But his confusion about the First Amendment strongly implies it. So, it must be said: Any line drawn by government on the premise of “offensiveness” would be the end of free speech, a most important bulwark against tyranny of all kinds, including the kind of tyranny symbolized by the swastika.
Indeed, bad ideas can never be defeated unless the people holding them are free to express them, and exposing themselves to public scrutiny. It would just drive them underground, where they can not be denounced, shunned, and defeated. The First Amendment protects all expression, offensive or not, moral or not, where they can be fully aired and debated. That’s as it should be. We should all welcome the freedom to express ideas we consider offensive or even evil, for the opportunity to fight back against them through our own free speech rights. But agree or not, we should all be united in defending every individual’s right to say what she wants to say, by keeping government restrictions out of it.
Letter to NJ.com: Opinion column wrong about free speech—John K. Tauscher, Hillsborough, NJ