Sorting Through Sophistries:
The Liberty to Lie
By Gabriel Blanchard
We have here a fallacy that is, in all probability, as old as the human race.
Freedom of Thought
The text of the First Amendment is … maybe not that well-known, actually? At any rate, people seem to forget things that are in it and remember things that aren’t pretty often. Let’s review.
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.
A set of six rights, two each under three headings, is listed here:
- Rights of Religion
- The right to be free of state-imposed religion
- The right to exercise any religion that is, so to speak, self-imposed
- Rights of Discourse
- The right to freedom of speech
- The right to freedom of press (which circumvents things like voiding freedom of speech in practice by banning topics from publication)
- Rights of Protest
- The right to assemble peaceably
- The right to petition the state to correct injustices (including those it may be guilty of)
Mis-recollections and misinterpretations of the First Amendment are legion. In some cases, they even circle back around to being legitimate interpretations of the Constitution—they just don’t correctly recall the words of the Constitution. (The separation of church and state is a great example here: many people think the phrase occurs somewhere in the Constitution, but it doesn’t; nonetheless, it’s pretty clear from its text that the First Amendment does lead quite logically to the separation of church and state.1)
Liberty of Thought Policing
Now, the intent here is political. The rights to freedom of religion, speech, and press are designed in contrast with the British system: there, the Crown is also the Supreme Head of the Church in England, theoretically capable of marshaling both civic and religious laws against its critics.2 But non-political, non-religious speech is not necessarily protected by the First Amendment. This is why many US states and cities have (or used to have) anti-obscenity laws, which are, strictly speaking, abridgments to the freedom of speech; it’s also why classified information and security clearances can exist, which no state in the modern world can function without. Probably no one is truly a free speech absolutist. Justice Oliver Wendell Holmes famously rebutted the absolutist idea, in an opinion given in 1919:
The most stringent protection of free speech would not protect a man falsely shouting “fire” in a theatre and causing a panic … The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.3
I do not think everyone is created equal. In fact I know they're not. The Constitution doesn't mean that everyone is as good as everyone else, it means that everyone should have the same laws as everyone else.
This helps articulate and clarify what the First Amendment is about. Sometimes it’s summarized as “the right to be wrong,” but that’s not really what it is. It can be convenient, and funny, to describe it as if it were. But the First Amendment isn’t a right to be wrong; it’s a right to immunity from state-imposed consequences for being wrong (whether those consequences claim to be punishment or “help”). This is important, because people don’t always want to think things through. This sentiment often expresses that:
Everyone has a right to an opinion.
The obvious problem with this sentiment is, it’s utterly false.
The Right to Be Right
The fallacy here is a moral and intellectual fallacy, depending on the linguistic fallacy of equivocation, which we reviewed way back near the beginning of this series. The equivocal word is “right.” There is one sense of that word that we’re using when we talk about right and wrong; there is another sense we use when we speak about political rights. The two senses are obviously related: civil and legal rights (political sense) are things the state has a duty to recognize (ethical sense), even if it doesn’t admit that it has this duty. But—at least according to the political philosophy set forth in the Constitution—these two senses of “right” are also very distinct, because one of the duties of the state is to keep its Cyrano-de-Bergerac-sized nose5 out of certain parts of life, even when there is something manifestly wrong going on.
And here’s the thing. Suppose Mr. A and Miss B are discussing subject X over afternoon coffee. Miss B has devoted the last fifteen years to intensive study of X; Mr. A heard of X for the first time that afternoon, in a listicle from Brainclick or Thoughthole or whatever the current thing is. Besides being foolish, it would obviously be unjust—in other words, not right—to treat Mr. A’s opinions on X as if they had the same value as Miss B’s.
It isn’t that Mr. A cannot have anything worth contributing to a conversation on the subject, especially if he happens to be an intelligent and reflective man; but as things are right now, Mr. A could hardly hope to be insightful, or even correct, about most aspects of X except by chance. He does not, intellectually or morally speaking, “have a right to an opinion”—but Miss B does have that right, because she has put in the necessary work to acquire authority on the subject.6 What they do both still have, and justly have, is the First Amendment right not to have the state rebuke, silence, fine, imprison, or execute them over their opinions about X, whether silly or sagely.
1The phrase comes, slightly garbled in form, from an 1802 letter written by Thomas Jefferson to Connecticut’s Danbury Baptist Association. The pertinent passage is: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.”
2Which is not to say it ever would have tried excommunicating the Revolutionaries as heretics or anything of the sort. Even at the time, there’s no reason to think that; today, it would be practically impossible, even if the British Crown wished to use the religious powers it has on paper. The point is that the American colonists were intentionally designing a society that differed in kind from the British.
3The case in question was Schenck v. United States, in which Charles Schenck was unanimously ruled liable to charges of obstructing the draft for distributing anti-war leaflets during World War One (even though the court went out of its way to state that everything the leaflets said would have fallen under First Amendment protections in peace-time). Justice Holmes wrote the opinion; however, before the year was out, both he and Justice Brandeis had begun to dissent from the direction the rest of the court were taking this decision. Schenck v. United States was more or less overturned fifty years later.
4P. 243; ed. Jon Winokur. Ms. Leibowitz was interviewed by Winokur for the book.
5In the play of the same name by Edmond Rostand, Cyrano de Bergerac is a seventeenth-century French swordsman, possessed of a glittering and inventive wit, but socially handicapped by an abnormally large and protruding nose, which robs him of confidence as a paramour.
6This might prompt the question of whether a phrase like “privilege of an opinion” would be more accurate than “right to an opinion.” In a vacuum, that might be so, but language never exists in a vacuum. The current author is of the opinion that the word “privilege” is in rather a dangerous position in the English language at the moment—it means too many incompatible things in too many highly-charged contexts for it to be safely assigned a new meaning; any such phrase would almost instantly change in its practical, vernacular meaning, and the whole discussion would become harder, not easier.
Gabriel Blanchard is CLT’s editor at large. He lives in Baltimore, MD.
If you enjoyed this piece, you might also enjoy our six–part miniseries on the topic of authority, part of our broader “Great Conversation” series. And speaking of conversations, be sure to check out CLT’s official podcast, Anchored.
Published on 29th August, 2024. Page image of The Tree of Knowledge (1530) by Lucas Cranach the Elder.