The first amendment contradiction

As I review what I have done with this blog with what I see on other blogs and vlogs.  I notice that I spend most of my time reading or watching content from people who make good arguments backed up by data and good sources.   Having good sources and presenting hard data demands my attention much more than someone who is just speaking his own mind, from his personal experience, and usually without any firm conclusion.   Despite my respect for those who put in a lot of work into their material, I have no interest in following their lead.

I am doing something different than they are doing, and I think this is also valuable even though I get far less attention, and justifiably so.

Recently, I started thinking about a slogan that has been appearing frequently in recent (as in past couple years) protests.  The slogan goes along the lines of “free speech is not hate speech”.   The statement is inherently ambiguous.  One interpretation is that in the universal set of speech, there is a set of speech that is free and there is another set that is hate and these have no intersection: there is no time when hate speech and free speech coexists.   I’m sure this is the usual interpretation.   Another interpretation is that the universal set of speech is entirely free and there is no subset categorized as hate, at least in terms of being excluded from being free.

This got me to thinking about there may be two completely different concepts both happening to use the word speech.

Then I considered the oddity of wording of the US Constitution’s first amendment that in a single assertion simultaneously protects the right of free speech (as well as peaceable assembly), the right to practice religion.   Only just now, as someone in his mid-50s, did I begin to see these are two completely different assertions.   More specifically, the assertions are mutually contradictory.

Speech is the right to express oneself.   Superficially, it is the right to speak one’s mind in public spaces without risking government interference, although there may be interference by peers.   But as often noted, agreeable speech does not need protection, so the amendment specifically protects speech that causes disagreement.

What causes speech to be disagreeable?

Thinking back to my youth, my first introduction to this concept was during debates of the 1960s or 1970s about offensive speech, such as speech involving vulgarities, pornography, or disrespect of symbols such as the US flag.    At some point, the courts decided that these examples fall within the realm of protected speech.   I recall objecting to the decision, and that occurred at youthful time of my life that that debate is what stuck in my mind.   Free speech was defined in terms of protecting vulgar expression.

That was unfortunate, because that clouded my mind for decades.  I didn’t think about another type of disagreeable speech.

As I type this, at the same time I also struggled with the questions of religious freedom and the gradual isolation of religious thought from schools (such as teaching of creation), from public policy (such as the legality of abortion), and recent examples of accommodation of LGBT persons.

I mention these examples for illustration, in each case I accepted the changes that occurred without any objection.  I experienced the arguments and these arguments defined in my mind what the first amendment was all about.

Now I think these experiences misled me.   Recent debates, particularly the rising conflict between different political factions within this country, challenge me to reconsider what the first amendment really meant.

Returning to the introduction of this post, I distinguished the kind of blogging I do with the blogging of people who capture most of my attention.   The people who attract my attention have well-thought out arguments backed up with multiple reasonably reliable sources, ideally for both sides of the case.   On the other hand, there are my blogs that have none of these properties.   Despite the contradiction, I value their form of speech as much as my form of speech.

The flaw that leads to a contradiction is to consider both approaches as a single definition of speech.

The wording of the first amendment provides a way to clarify things by asserting there are two completely different things: speech and religion.  Over the centuries, what we mean by these words have changed.  Today religion is very specific and usually tied to doctrines and practices of religions that are least vaguely established with a community following a particular doctrine or set of practices.

As I thought about recent events, I wondered if there is really something else going on with this amendment.

By speech, the amendment has nothing really to do with vulgar speech, but instead it is about the particular form of speech meant to persuade others.   I believe what was really intended was the right to attempt to persuade others of your beliefs.   For the most part vulgar speech is intended to shock or offend, not to persuade.   Although I don’t object to protection of vulgar speech, I don’t find it very relevant to democracy.   On the other hand, persuasive speech is clearly valuable.   Of particular value is speech that attempts to persuade people away from popular or established conceptions.   The freedom of speech, is the freedom to attempt to persuade others that a new or a minority view is more correct than the views held by the majority.

This is the type of speech I want defended.  I want to hear someone attempt to persuade me that I need to change my mind.   Part of why I want to hear someone present a minority-held view in a persuasive way is for the opportunity to learn more about the art of persuasion.   Most of the time, I enjoy being persuaded into a new way of thinking for the sheer admiration of the practice of the persuasive arts.   In my case, I frustrate the persuader by enjoying the next experiences just as much when it persuades me to change my mind again.

The reason why protection of persuasive speech needs to be protected is that it includes speech that challenges the public to consider something that is contrary to the current thinking.   If people are already convinced of a position, the speech is not really persuasive speech because the people don’t need persuasion.   Even if that speech employs a high standard for argumentation, it is speech that doesn’t need protection because the majority won’t object to it.

Persuasive speech needing protection is speech that challenges the majority opinion.  Changing majority opinion is how democracies may progress.

Persuasive speech described the blogs I enjoy reading.  But blogs I enjoy writing don’t fall into the same category.   I don’t write with an expectation that I will persuade anyone of my arguments.   If there is any objective to my posts, it would be to persuade someone that I am real person.

This got me to thinking about the second half of the amendment, the freedom of religion.   For most of my life, I didn’t consider this part to be very relevant to me because I didn’t consider myself to be religious.  However, recently, I began to think that maybe there is a different way to define religion.

The first amendment protection of the freedom of religion may instead be a protection of belief.  This seems obvious.  Religion is about belief, but not all beliefs are religious.

The second part of the first amendment is a protection of a person’s right to a belief.   If there is a right to a belief, it is a right to be unpersuaded.

The right to freely practice religion is the opposite of the right to free speech in the sense that it is a right for people to refuse to be persuaded by others, even if that persuasion is a solid argument for which there is no equally persuasive counter argument.

The first amendment is a simultaneous assertion of the right to attempt to persuade a majority of a minority viewpoint, and of the right of anyone to reject even the best persuasive argument.

I was thinking of an analogy that the first amendment builds into our government the dialog approach of Plato.  The freedom of speech is the recognition of the role of sophists to persuade the population, while the freedom of religion is the recognition of the Socratic refusal to be convinced.   Another analogy of the later pyrrhonian skepticism that essentially tolerates all persuasive arguments while perpetually rejecting the state of becoming persuaded of anything.

The first amendment simultaneously protects one person to attempt to persuade another person, and at the same time it protects that second person to refuse to be persuaded no matter how good the argument.

This is not a statement of how the courts interpret this amendment.  I haven’t really researched the legal interpretations at all.   I am just thinking about this a way to make sense about current debates specifically about what exactly is protected by the first amendment.   More specifically, as mentioned above, it is my way of reconciling the difference between what I enjoy reading and what I enjoy writing.   I enjoy reading persuasion.  I enjoy writing about being stubbornly unpersuaded.

This interpretation presents a problem in that the first amendment is a single statement that contradicts itself.   People have a right to attempt to persuade others, while the others have a right to never be persuaded.

In this formulation, the first amendment does not protect anything consequential at all.   No one can be forced to accept any argument, not even the best constructed argument that objectively beats any competing argument.

In recent times, we have an explosion of divisive assertions with adherents strenuously arguing against adamant audiences.   Both sides are protected by the first amendment and that protection is exacerbating the problem by protecting both the side that insists it is right, and the side the refuse to accept it may be wrong.


One thought on “The first amendment contradiction

  1. The challenge this Republic seems to have with itself is can we truly have freedom of speech and not have the right to speak the truth about the discrimination, corruption, injustice and socioeconomic racism in which this Republic was founded. Seems like everyone wants to be proud to waive a flag, sing a song but close their eyes to the real time pain existing in their own communities.

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