Kirk Hiner's

"When thinking differently just isn't different enough."

Amending the First Amendment

By Kirk Hiner

It's time we scrap the First Amendment.

Yes, I'm speaking of the First Amendment to that oh-so-magical document, The Constitution of the United States of America. I say this not because I disagree with it in principal--I am a writer, after all--but because it simply doesn't work. It protects no freedoms, and instead only promotes ignorance and laziness.

Now stay with me here for a moment. Lets look at the actual language of the First Amendment as it pertains to speech.

"Congress shall make no law [religion clauses omitted] abridging the freedom of speech..."

See that? Did you catch that in there? It says Congress shall make no law. Not Major League Baseball, not Time Warner, not Apple Computer. The Bill of Rights was added to the Constitution as a direct limitation on the authority of the federal government. The framers were concerned about tyranny, not about Steve Jobs throwing tantrums over Apple watches or shutting down websites that pertain to his company.

Also, the framers didn't mean it.

Before I illustrate this point, let's talk about those framers for a moment. Let's talk about the fact that out of seventy people invited to the Constitutional Convention, only fifty-five bothered to attend. And of those fifty-five, only thirty-nine signed. Thirty-nine! Sixteen people who attended either left early because they had more important matters to attend (feeding the goats or husking corn, perhaps) or because they disagreed with the decisions being made. Still think the Constitution is so holy? TV Guide's "Cheers and Jeers" could get a better hit/miss ratio than that.

Back to free speech, at the time the Constitution was passed, every state in the union had laws against what was called seditious libel, meaning you couldn't criticize the government. "I hate Governor so and so..." Boom! Prison. None of the framers is on record as saying that the First Amendment was incompatible with those laws. On the contrary, the manifest weight of the evidence suggests otherwise, that despite the language of free speech, the framers recognized the need for limits.

In fact, a guy did two years for painting a sign which said "Downfall to the Tyrants of America," clearly refering to the Federalist Party then in power.

Two years. But if Apple sues an employee or two for divulging trade secrets to the press, somehow that's supposed to be turning Jefferson over in his grave.

Now, we don't have those laws anymore, obviously you can criticize the government, even saying something to the effect of "Bill Clinton's a slut" without fear of reprisal. But if the government--or even Apple--wanted to get me off of Applelinks, the First Amendment wouldn't save me.

We also have plenty of what could be considered abridgements of free speech; things like obscenity, defamation, fraud, so called "fighting words" and words that lead to clear and present danger are all categories of what we call "unprotected speech" that don't even fall under the umbrella of the First Amendment. Everything else is subject to restrictions of time, manner and place that could cause the government to stop any kind of speech.

In 1992's International Society of Krishna Consciousness vs. Lee, for example, the Supreme Court ruled that publically owned airports could stop the distribution of religious pamphlets in their buildings. Those are airports that are taxpayer funded (the New York airports, incidentally, were those invovled), not all dissimilar to a streetcorner, where there are things you are not allowed to say. You can't say "I'm gonna blow up the plane," you can't say "Oh my God, my friend Earl has a gun," and if the airport doesn't want you too, you can't say "Come join my church and worship Jesus or Krishna or Orange Julius" or anything else.

All of which is, as the law stands, compatible with your First Amendment.

Now don't get me wrong, as I mentioned earlier, I'm all for the idea that one should be able to say what he or she wants without the fear of disappearing to the gulag. What I'm not for is people mouthing off about nothing, upsetting everyone they can, then hiding behind the First Amendment as if it's some sort of mythological aegis.

I guess it just upsets me that people can only babble First Amendment when they want to express thoughts (reasonable or otherwise) about a controversy regarding expression. It would be better if people could articulate those thoughts without the protection of laws they haven't read; it would be even better if they'd read those laws and understand them.

I'll admit I made it all they way through high school, college and nearly a decade of writing before I fully understood them. It wasn't until after speaking with my "tall, blond, Canadian" friend--a lawyer and teacher of today's youth--that I started to grasp all of this, and it was only after seeing the First Amendment tossed about like expletives on The Farm Club that I began to care. For instance, there's a great story in the WWF right now in which Steven Richards has formed a group called The Right to Censor. He convinced the former pimp The Godfather to become the Goodfather and give up bringing his hos down to the ring, claiming that it was morally wrong to present women as sex objects and to promote illicit sex. To counter this, the announcers claimed that it is our First Amendment right.

Excuse me? Prostitution is protected by the First Amendment? Well, those framers certainly must have been randy fellows, and that would explain the lack of female representation back there in 1787.

But okay, perhaps wrestling is not the arena to which I should go for examples. Lets instead move on to more sophisticated fare, like the rock music industry.

In the early days of rap music, Ice-T sang a song called "Cop Killer," the message of which is easily inferred from the title. Needless to say, concerned citizens everywhere (outside of Ice's demographic, anyway) were in uproar. When the lynch mob showed up at Ice-T's castle door, torches a-blazin', he defended not his alleged rights to sing the song, but instead the song's message and his reasons for singing it.

Then you have Ice-T's modern-day equivalent, Eminem. The real Slim Shady (and thank Heavens we finally found out who that is) likes to rap about killing his wife, which basically garners the same reaction as did "Cop Killer." The difference? Eminem has no reason to sing what he does, other than the predictable and boring babble about having "a rough childhood" and "no one understands me" and "music is my outlet" and blah blah blah. When it comes time to defend his words, all the young poet can do is cry "My rights" and "First Amendment."

So, if you're going to say something, if you're going to write a song or make a movie or build a website, know your reasons for doing it. And if your content is going to be questionable, more power to you. Challenge people. Make them rethink what they think they know. Push them back into the corner. But when they come back swinging, you'd better have a better defense than "It's my right." In America, at least, your rights don't hold a lot of weight against the government or major corporations or anyone with more money than you. Defend instead what you say and your reasons for saying it, and I'll be right there behind you. That may not be much, I know, but it's more than you'll get from our forefathers, that's for sure.

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