Putting the First Amendment in Perspective

The title of this week's column by Robert Scheer, which can now be read at the Truthdig Web site, is "Where Is the Outrage?" The question is elaborated and justified in his opening paragraph:

Are we Americans truly savages or merely tone-deaf in matters of morality, and therefore more guilty of terminal indifference than venality? It’s a question demanding an answer in response to the publication of the detailed 370-page report on U.S. complicity in torture, issued last week by the Justice Department’s inspector general.

I agree that the question needs to be asked, but more under the Socratic precept that "life without this sort of examination is not worth living" than in the hope that self-examination need necessarily make us "better people." Having been born a Jew after the end of the Second World War, much of my life has been exposed to considerations of the question about why a civilization as sophisticated in music, literature, poetry, and philosophy as that of the German people should succumb so readily to the atrocious irrationality of National Socialism; and, as far as I am concerned, that question has yet to be resolved. If that question remains unresolved after over sixty years, can we really expect a reasoned reply to Scheer's more recent question?

One way to begin such a quest, however, might be to start with one of Scheer's assertions that, while rhetorically useful, is a bit flawed on the logical side:

That this systematic torture was carried out not by a few conveniently described “bad apples” but rather represented official policy condoned at the highest level of government was captured in one of those rare media reports that remind us why the Founding Fathers signed off on the First Amendment.

I found it interesting that I should be reading this sentence less than 24 hours after reading Jeremy Waldron's review of Freedom for the Thought That We Hate: A Biography of the First Amendment, by Anthony Lewis. I had heard (and enjoyed) an interview that Lewis had given about this book on Book TV and appreciated the opportunity to flesh out that memory with printed text (until I can create the time to read the book itself). Scheer's (potential?) logical flaw involves overlooking the Sedition Act, which was passed in 1798, some seven years after "the Founding Fathers signed off on the First Amendment" (along with the rest of the Bill of Rights). The spirit of the Founding Fathers was, at that time, still very strong in all three branches of the Federal Government. Waldron gives us an appreciation of the paradox of these conflicting views through an account of Colonel Matthew Lyon's effort to challenge the Sedition Act, after having been arrested for seditious libel:

At his trial he disputed the constitutionality of the Sedition Act—a plea that was peremptorily struck down by the judge (Supreme Court Justice William Paterson, riding circuit as Supreme Court justices did in those days).

These days such peremptory judgment would probably invoke the wrath of any member of the American Civil Liberties Union; but Waldron continues his argument by explaining why "these days" were not "those days." Consider the context he provides:

Why did locking these critics up seem like an appropriate thing to do in the early years of the republic? I am sure no explanation would be complete if it did not mention the volatile combination of wounded vanity and—for the time being—legally unlimited authority of leaders at the time. But it would also be a mistake to omit the point that political institutions are sometimes a lot more fragile than they look. The state—which to us appears so powerful and self-sufficient—depends crucially on the opinion of those over whom it rules and it requires for its operation a modicum of deference and respect.

To many people, federal authority seemed weak and precarious in 1798. Public agitation by Colonel Lyon's supporters led to a brief uprising in Vermont, and there was a threat of considerable political violence elsewhere. George Washington was denounced as a thief and a traitor; John Jay was burned in effigy; Alexander Hamilton was stoned in the streets of New York; our hero, Matthew Lyon, attacked a Connecticut Federalist with fire tongs in the House of Representatives; and Republican militias armed and drilled openly, ready to stand against Federalist armies. Over everything, like a specter, hung fears of the Jacobin terror in France.

It was by no means obvious in those years—though it seems obvious to us—that the authorities could afford to ignore venomous attacks on the structures and officers of government, or leave their publications unmolested in the hope that they would be adequately answered in due course in the free marketplace of ideas. That government could survive the published vituperations of the governed seemed more like a reckless act of faith than basic common sense.

In other words it was the fragility of our political institutions that differentiated "those days" from "these days" and explained why the Sedition Act endured until 1802, when it was repealed by Thomas Jefferson. (Note, however, that there was also a Sedition Act of 1918, passed as an amendment to the Espionage Act of 1917, which was not repealed until 1921.) Waldron's point is that the "biography" of the First Amendment is closely aligned with the strength of the government that had conceived it:

For the story of First Amendment freedom is not only that government came to seem so strong that it did not need the law's protection against criticism; the story of First Amendment freedom is that the government came to seem so strong that it constituted itself as a menace to individual freedom, and that is why it had to be restrained from interfering with free speech and freedom of the press.

That is how "those days" turned into "these days;" and in that "narrative of progress" we may find an approach to Scheer's question. The value of the First Amendment in "these days" ultimately resides in that "free marketplace of ideas" as defense against a government whose strength needs to be checked; and in these "right-now" days such checks are particularly important since the checks and balances within the workings of the Federal government have been both attacked and undermined by the Executive Branch. The problem is that the First Amendment has become almost as irrelevant as the Constitutional system of checks and balances, because the Executive Branch does not need to interfere "with free speech and freedom of the press" when it can direct its power to manipulate more directly that "marketplace of ideas" whose freedom becomes more of an illusion every day. Thus the media that provide the electorate with news of both their country and the rest of the world are free by virtue of the First Amendment but (in the spirit of the Social Contract of Jean Jacques Rousseau) are everywhere in chains forged by the machinations of the "power elite" (as C. Wright Mills called them) within and surrounding the White House.

Within this framework we may now return to the question in Scheer's first sentence. However, rather than resort to his rhetorically charged language, I would prefer my previous attempt to classify behavior that is undesirable or counterproductive as bad, malicious, or pathological. In that classification I distinguished between bad and malicious by associating the former with "childish," which is to say not particularly well informed or seriously intended. From that point of view, Americans are neither savage nor venal; they are just childish. They are childish because it is in the best interests of the media (and those who manipulate the media) to keep them in a perpetual infantile state (in the spirit of the popular hypothesis that a dog kept as a pet from the time of its birth remains, behaviorally, a puppy until the time of its death). Thus, the media are in chains forged by the government; and, in our perpetual childhood, we are then enchained by the media. It all comes down to "induced bad behavior," which, as Tony Judt recently observed, comes very close to the sort of banality that Hannah Arendt had tried to address in her study of the nature of evil. The irony is that this behavior has been induced under the Administration of a President who, through his faith-based ideology, has tried to present himself as the leading warrior against evil.