James Pfister: First Amendment and civilized standards: Genocide is too much

Claudine Gay, Sally Kornbluth and Liz Magill, presidents of Harvard, MIT, and Penn, respectively, three private universities, recently testified before Congress regarding a subject that shocks the conscience: the genocide of Jews and other peoples.

Although as private institutions they are not bound to give First Amendment protections, they follow them. (They give their students as much right to speak as is required in state community colleges, according to David French, The New York Times, Dec. 10).

The First Amendment says in absolute terms: “Congress shall make no law … abridging the freedom of speech …” This is made applicable to states under what is called the “incorporation doctrine.” This means that at the state level, a person or a group could advocate the genocide of Jews, or the forceful elimination of the state of Israel.

Justice Hugo Black used to say, “no law means no law,” but the rest of the Supreme Court did not agree: there are laws that require decorum in a courtroom or prohibit “fighting words” or the incitement of imminent violence. But the First Amendment does protect offensive speech. Problem: How to draw the line between protected and not protected speech?

The rule is Brandenburg v. Ohio (1969). It does not permit the government or its instrumentality, such as a state university, to prohibit the advocacy of the use of force or violence in the abstract. But when such advocacy becomes an incitement to lawless action, such as planning violence against Jews, the state or its instrumentality, may prohibit it. It can prohibit “preparing a group for violent action and steeling it to such action.” (Brandenburg).

In preparation for their testimony, Gay and Magill were counseled by a “white shoe” law firm, WilmerHale. (Lauren Hirsch, New York Times, Dec. 8). Kornbluth also had legal counsel. With the nuances in the law here, you can see why the witnesses were not able to give a clear “yes” or “no” answer regarding genocide. It depended upon the “context.” The main questioner, Republican Representative Elise Stefanik, was either uninformed of the complexity of the matter or disingenuous in her questioning. (Stefanik graduated from Harvard in government/political science studies, but not law).

We have cherished the First Amendment as something distinctly American. Other constitutional democracies do not have the extreme protections of speech that we have had. We have said it protects our democracy and the power of the people. In a homogeneous society, such as we had when James Madison drafted the amendment, its effects may have been beneficial. But in our current diverse, heterogeneous society, with low self-restraint, the extreme advocacy of genocide, for instance, is too much, especially if you are on the receiving end of such a threat.

My thesis is that our First Amendment as currently interpreted by the Supreme Court and given our diverse society is too strong; Brandenburg should be overruled. Our Supreme Court should increase the areas of prohibited speech where government can set standards. We simply cannot handle a strong First Amendment right as we could before.

One approach is Germany’s constitution of 1949, known as the Basic Law. It gives the right of free speech in Article 5(1): the right “freely to express and disseminate his opinions … and to inform himself. … There shall be no censorship.” But said Section 1 is balanced by 5(2): “These rights shall find their limits in the provision of the general laws, in the protection of young persons and in the right to personal honor.”

Personal honor can be derived from Article 1, that was to set the tone for the whole constitution, “Human dignity shall be inviolable,” and from Article 2(1), “Every person shall have the right to the free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral code.” This creates a balancing method for courts and authorities below courts, such as universities, where people in society cannot balance for themselves.

A higher natural law than our secular First Amendment is the Golden Rule, found in many religions. I recall the great psychoanalyst, Erik Erikson, once said regarding the Rule: do not simply quote it; go out and learn it.

— James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Holland Sentinel: James Pfister: 1st Amendment, civilized standards: Genocide is too much