Correcting First Amendment Jurisprudence

The four traditional police powers of government are to protect public health, safety, welfare, and morality. In American law, the police powers are legitimate and even compelling justifications for government legislation and regulation. Usually, government exercises of the police powers can pass any level of judicial scrutiny. Within these realms, the courts do not challenge the legislature or executive branches in their capacity to regulate behavior and enforce social order.

However, some courts have explicitly rejected the power of government to protect citizens' morality. Courts began to embrace moral relativism in the context of pornography and indecency cases under the First Amendment.

In Cohen v. California (1971), the Supreme Court heard a case about a man, Cohen, who had been convicted under a California statute prohibiting anyone from "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct." Cohen had worn a jacket that prominently displayed the phrase "F*** the Draft" in a government building with children. Although the Court could have held narrowly on the unconstitutional overbreadth of the California statute, it articulated a broader ruling. The Court held that California cannot censor profanity in public places because "one man's vulgarity is another man's lyric." Such a holding seems to endorse an almost unlimited personal autonomy. It chants the selfish mantra, "you can do whatever you want, so long as you don't hurt anyone." Justice Burger, Justice Blackmun, and Justice Black dissented in part because they (correctly) asserted that we do not "live in a world so incapable of communication that it can be said that 'one man's vulgarity is another's lyric.'"

More recently, Justices Kennedy and O'Connor seem to have accepted moral relativism by asserting that the Court cannot rule on morality in cases dealing with abortion and same-gender sex (Lawrence v. Texas; Planned Parenthood v. Casey). But, I will keep the scope of this post to the First Amendment.

Judge Robert Bork criticized the Court's capricious admission of moral relativity in, among others, the Cohen case. He points out that moral distinctions stand at the very foundation of the law. If it were not for morality, law could be established in very few areas, "[a]fter all, one man's larceny is another man's just distribution of goods." Moral relativism as a formula for justifying and fashioning the law is totally vapid. A change in deeply entrenched and widely accepted moral environment is harmful.

One of the chief objections to Bork's critique of moral relativism in the judiciary is that, with Cohen, the Court was not dealing with regulations of Conduct like larceny, but speech, which has special status under the Constitution. This seems to me to be a widely accepted tenant of First Amendment theory. That, somehow, speech, as a right, is superior to other rights because it is memorialized in the First Amendment. First Amendment jurisprudence demonstrates a belief that the First Amendment enthrones speech and self-expression as higher than all other values save health, safety, and financial well-being of others. Since Judge Stone penned the famous footnote four of the United States v. Carolene Products case, rights specifically mentioned the Constitution have been blindly treated as superior to other rights.

I refute this notion. I believe most all of the founding fathers would heartily agree. The purpose of the First Amendment was not to give speech superior status relevant to other rights, but to declare the status of speech as a right where it had previously been treated only as a privilege in the law. Thus, speech is on no greater footing than other rights and must be balanced against other rights. Whether Cohen's "absurd and immature" form of protesting the Vietnam War can be regulated, I am not decided. However, the Court proceeded incorrectly, and in so doing, set dangerous precedent. Rather than proceeding on the assumption that no morality exists, the Court should have recognized the rights of parents to steer their children away from such indecency or the right of persons to function normally in society without having their moral sensibilities accosted. Then, the Court should weigh the rights of the speaker against the rights of the audience to come to a conclusion. Judicial consideration should take into account the justifications for free expression, asking: (1) Does the speech have a positive or negative affect on the marketplace of ideas, as a step to truth? (2) Does the speech have importance in checking government abuse or in sustaining a healthy democracy? And, (3) how important is the person's interest in autonomy and self-expression as compared with the opposing party's rights.

Although we may dispute the definition of moral good at the margins, there are certain ubiquitous virtues that should define the contours of the law. We may disagree about exactly what it means to be kind. But, virtually every society across time and geography values kindness and dishonors cruelty or selfishness. Rather than shun morality, Courts should sculpt the contours of the law around fundamental principles of morality.

Americans have the right to pursue a broadly virtuous life without being unduly burdened. While we can argue at the margins of what it means to be good; there is a central core in the American tradition of what it means to be virtuous: wise, courageous, kind, temperate, and transcendent. Our freedom of expression cannot be superior to the right to live normally without being exposed to a waterfall of profanity, lustful nudity, gratuitous violence, outright lies, and verbal abuse. Our policies must support virtue. Or, we will lose virtue. Benjamin Franklin understood well the results of a morally relativistic citizenry when he said, “Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.”

Neuroscience, the Mind, and Self-Improvement

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It is his capacity for self-improvement and self-redemption which most distinguishes man from the mere brute.

- Aung San Suu Kyi

Neuroscience fascinates me. The brain is so mysterious and marvelous. One of the age-old questions posed by students of the mind is whether our consciousness and body are distinct entities or whether they are actually the same thing. Monism is probably the most popular school of thought today and holds that our consciousness is a phenomena arising solely from physical processes of our brain.[i] Through science, we now know that our very consciousness, our personality, memories, hopes, and fears are inextricably linked to the few pounds of biological tissue in our craniums. When our brain changes, so do we. However, too many smart people misinterpret this fact to mean that we are simply a product of our environments. That free will does not exist. And that there is nothing more to the world than the sub-atomic particles that make up the universe, as science understands it. The worst part about this misinterpretation is that people use it as an easy excuse. They say, “I just am who I am”; "I am simply a product of physics”; “I can’t help doing wrong”; “I can’t change”; “I can’t improve.” But, they are wrong. In this post, I intend to argue that, although it is tremendously difficult, we can improve who we are and that we are ethically obligated to make the effort.

Concluding that humans are automatons from our limited scientific observation is to prematurely jump to conclusions. It under-appreciates the experience of consciousness and our inherent capacity for self-improvement. The first question then is how can we square the scientific understanding that our physical brains control our mind with how we experience ourselves as rational, free, social, political, conscious, and ethical beings. I will not be able to address this in full (I don't know the answer); but my purpose in writing this post is to debunk people’s efforts to excuse poor performance, lack of improvement, and misdeeds by saying that they are merely a product of the physics or biology. People too often underestimate our ability to change for the better; they give up on themselves too quickly.

FREEDOM AND NEUROSCIENCE

I propose a sort of limited dualism wherein there are two realms of existence: physical and spiritual. On one level, they are all one kind of matter and I am making a false dichotomy; but, in another sense, they are separate. On Earth, we observe primarily the physical matter. Science does not yet comprehend the spiritual and how or how much it interacts with the physical. The belief that there are other kinds of matter we do not yet comprehend is not unprecedented. For the past few hundred years, science has discovered different kinds of matter and different subdivisions of matter. We learned that everything is made of atoms, then that atoms were made of subatomic particles. Then we learned that subatomic particles are composed of quarks, leptons and force carriers (but, what are quarks made of?). We have also discovered a matter that does not share space with us: anti-matter.  From observational evidence of gravity, we know that there is matter that we do not understand that accounts for much of the mass of the universe. In sum, we have not figured out the system of physics, matter, space, and time. I expect that there exists some other dimension of the system of physics that I will deem the spiritual.

In my experience, the most common objection to this view is that given the fact that physical neurobiology accounts for much of consciousness, Occam’s razor dictates monism. In essence, my opponents argue that I err in postulating another kind of matter when the physical world can be explained with reference only to the physical. But, I don’t think that the world can be explained merely through reference to the physical world. In short, I believe my opponents too easily discount epistemological experiences that have lead to my religious faith. Faith is inherently subjective. Unfortunately, I cannot share it; my consciousness is my own. I can only try to explain how I have come to faith through experience and study. I find, however, that many of my opponents actively avoid subjective evidence and value only objective evidence. They too quickly conclude that if something happens in their head, in their own subjective experience, it cannot be evidence.[ii]  It cannot be descriptive of reality. Subjective evidence or religious experience, for them, must be a false neuronal firing, cognitive bias, or a evolutionary glitch giving the illusion of purpose. I think these arguments have some merit; but not as much weight as my opponents give them. Despite the tendencies of the natural man, I feel that humility, self-awareness, and self-honesty can be more effective at diagnosing and evaluating our own knowledge than some people give credit. Sometimes, religious faith cannot be boiled down to a biologically-wired bias. Faith can be objectively rational and subjectively confirmed through so-called "supernatural" influences and self-realization.

Although we do not yet understand the neuronal basis for subjective consciousness, I expect it will be thoroughly tied to our physical brain. However, I don’t think we understand the implications of the matter making up our physical bodies and universe. Our consciousness and being somehow continue after death in a spiritual existence. The corruption of or physical bodies does not corrupt our spiritual bodies. Our experience in the physical world is recorded on physical and spiritual software, but it does not change the spiritual hardware. When we die, the recording stops (at least on the physical side). I think that, either occasionally or constantly in ways we do not yet understand, our being and experience in the spirit realm can affect our being and experience in the physical world. We may coin such influence supernatural because we do not yet understand it; but it is ultimately natural. I am not sure the extent to which this occurs and I don’t necessarily disagree that the system of physics is closed, but that my opponents too quickly draw the borders of the system too small. Like ancient cartographers who drew the edge of the world without including America, they draw the edge of the physics and neuroscience without including the spirit existence.

In essence, my reconciliation of the mind-body problem can be analogized to a sort of double-sided carbon paper (to a degree). Before photocopiers and computers, carbon paper was used to make copies of hand-written documents. On one side of the carbon paper was loosely bound dry ink or pigment. To make a copy, one would slip the leaf of carbon paper between two sheets of standard paper and, as he or she wrote on one, the pressure of the writing utensil on one side of the carbon paper would deposit the ink on the opposite sheet reproducing the original document. Similarly, my proposition here involves two kinds of matter. As we experience life on Earth it is simultaneously experienced in spirit although we only readily observe the former. And, I also believe that happenings in the spirit realm can affect the physical too.

Free will means different things to different people. I do not claim to know whether all of our volitions have predictable causes that are fixed in the past and outside ourselves (determinism) or whether some phenomenon within our beings gives flight to volition or can give flight to volition. Ultimately, I believe our minds are not magical, but comprehensible at least to God. Free will, for me, means choosing according to our fundamental preferences that are not compelled by ignorance, addiction, or other compulsion. True and full free will is only capable through knowledge and self-mastery.[iii] Human agency means more than a reaction to physical causes beginning at our birth. To say, as many philosophers do, that “we feel we are choosing, but we are not” without further elaboration is to misleadingly undervalue choice. At the very least, one must concede that our subjective consciousness cannot be reduced to objective neuronal firings. Whatever is happening, the experience of consciousness is special. It brings about a feeling and self-aware "I." Consciousness is inherently subjective and cannot be explained in 3rd person objective descriptions of neurological mechanics. We are not well served by smug self-satisfaction that comes from a disavowal of responsibility for our actions.  Even if choices are ultimately predetermined by the mechanics of the universe, the cause of our conduct is still within our being and responsibility will thus attach to us. 

NEUROSCIENCE OF SELF-IMPROVEMENT

Almost everything we do not only registers in our conscience, but physically changes our brain. This is what makes breaking bad habits so difficult. This is what makes building character and talents so demanding. Deciding to be better is not enough. It takes repetition and a network of supporting decisions to alter our neurobiology and truly change who we are. The more we make right choices, the better we become ethically and biologically. The more we cave to base temptations, the less good we become morally and physically. The brain is not static. It is more like a muscle. The more and the way we use different parts of our brain determines the physical structure of our brain. As we use our brain often and properly, it becomes more adept. If we do not use our brain or we use it the wrong way, it becomes less adept at doing good.

Some Examples:

(1) Drug addictions, pornography dependencies, overeating, and gambling dependencies have been shown to decrease the size of parts of the prefrontal cortex that correlate with self-mastery. The more we cave to yearnings for chemical pleasures from risk, lust, drugs, etc. the less our brains are equipped to deny short term pleasure for postponed, longer term, and greater pleasure.

(2) Taxi drivers have larger hippocampuses that play a role in navigation and memory.

(3) Violinists have a pronounced knob in their motor cortex for their left hand. Piano players have also been demonstrated to have an enlarged part of the brain dealing with finger coordination.

(4) The architecture of Albert Einstein’s brain had a unique parietal cortex that likely contributed to his ability to conceptualize and synthesize complex information.

The fact that our being is tied to our physical brain means that there is often an illusion of inability to change. But, change is, in fact, possible. The illusion of impossibility arises because even after we make the choice to change, temptations, tendencies, and lack of aptitude remain and only change after repetitive use of the brain in the right way. People too quickly discount preferences, tendencies, and personality traits as immutable after making a facial effort to change. Real change requires more than a single choice to change. It will frequently require a whole network of choices. The slow improvement of our physical brain, choice by choice, may involve more than any single and isolated choice. In other words, overcoming a bad habit may not be best accomplished by trying to force one’s self to affront and deny the temptation at issue. Similarly, will power alone might not be enough, in the beginning, to establish a new good habit. We have to make choices to alter our environments in such a way as to support our decision. Improvement and change has to come step by step. For example, it is probably not smart for a person addicted to tobacco to hang out with others who smoke, to see and smell tobacco. Rather, if the person is serious about quitting cigarettes, she is better served by making choices to alter her environment for a while to minimize the temptation. Eventually, her brain structure will change and the biological urge to smoke will diminish. Eventually, she may be able to see cigarettes and smell smoke and have the will power to say “no.” Another example of this principle comes from my experience in Paris. When I first began living in France, I was somewhat self-conscious about my ability to speak the language. A friend advised simply, “fake it until you make it.” I didn’t understand what he meant at first. However, by pretending I understood what I was hearing, by participating in conversations, I gave people the impression and permission to speak to me in French freely. And, people did speak to me more in French. Before I affected confidence, people would sense my nervousness or inabilities and would switch to speaking to me in English. Thus, making the decision to speak French, alone, wasn’t enough. I had to make a series of decisions, one of which was to pretend I spoke French better than I did. 

Whether the moving factor of free will lies within or without us we ultimately experience agency in a very real and subjective way. On some fundamental level, we can choose to improve. We have the tools inherently in us to improve. We can make choices that will alter the physical makeup of our brains to bring about improvement in our lives on a scale too often underestimated.  I am not asking for perfection. Just a resolution and commitment to build character and be better. To not live beneath the divinity within us. As we improve ourselves, society improves, and it becomes easier for others to improve their lives. Indeed, it is my conviction that we are not only able to fundamentally improve ourselves, we are ethically obligated. Improvement, I believe, is part of Deity's purpose for us and He has provided a way. I'll end it here with this thought, that we are capable of more change than we give ourselves credit for. Now, let's do some improving.

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[i] The kind of monism I describe here is sometimes referred to as “materialism.” However, another sort of monism is known as idealism. Idealism holds that only the mind is real and is most closely associated with the philosophy of George Berkeley. Indeed, there is a third-view, the least popular, which holds that really all being can be reduced to one substance that is neither thought nor physical substance but something else, e.g an energy.

[ii] This reminds me of a conversation between Dumbledore and Harry Potter, which can be understood on at least a few levels, in J.K. Rowling’s Harry Potter and the Deathly Hallows: “Tell me one last thing, said Harry. Is this real? Or has this been happening inside my head? Of course it is happening inside your head, Harry, but why on earth should that mean that it is not real?”
[iii] How would you choose if you had all the relevant information and mastery over cognitive biases? Such is a free choice according to my definition. 

Free Speech and the Middle East

The United States Ambassador to Libya, J. Christopher Stevens, was killed by an armed Islamist mob attack on September 11, 2012. Originally, the Obama administration stated that the attacks were a “spontaneous reaction” to “a hateful and offensive video…” (Susan Rice, U.S. Ambassador to the UN). The video she was referring to was an amateur film, made in the U.S., which mocked Islam and was called “Innocence of Muslims.” This initial reaction was probably false as the timing (11 years to the day after September 11, 2001 attacks) and subsequent investigations appear to show the attack was coordinated and planned. Whatever the case may be, there have been many violent anti-American and anti-West demonstrations and actions throughout the Muslim world ostensibly as a reaction to the wildly unprofessional “Innocence of Muslims” movie trailer or the French publication, Charlie Hebdo, who published cartoons mocking the prophet Mohamed.

These events highlight a major difference in the way some Muslims (enough to fill big town squares during the workweek) and the West view free speech and tolerance of religion. In this post, I attempt to color that difference, to comment on American free speech, and to talk about my own view of free speech.

AMERICAN FREE EXPRESSION

The First Amendment states, “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.” This view of free expression and religion is inherited, in large part, from John Lock and John Stuart Mills. Locke believed that keeping established religion within the heart and home and out of political policymaking would lead to tolerance and end wars of religion. John Stuart Mills advocated the value of a marketplace of ideas. In essence, he thought that, although imperfect, the free trade in ideas was the best way to find truth as a society. Other philosophical justifications undergird American freedom of expression too. Self-governance requires freedom of opinion, religion, and expression. Suffrage requires it. If people are to be sovereign, they must have their own free opinions and be able to express them. There is also a deontological argument that it is an essential right for autonomous and self-determining human beings to express themselves. Otherwise, life would be meager. Free speech serves as a check to the abuse of power.  Free expression serves as a release or safety valve giving a recourse to dissidents other than draconian violence.

MUSLIM FREE EXPRESSION

Many Muslims do believe in free expression. Modernity, it appears, demands it, and it really seems easily reconcilable with the teachings of the Koran as I understand. Yet, too many Muslims refuse to embrace tolerance and free expression. Too few are willing to be offended in order to have peace and free conversation. For them, there is no difference between public and private. The reputation and integrity of their religion outweighs free speech and tolerance. If America disagreed with the distasteful speech, they believe, the government would prohibit it. Since America doesn't censor the speech, they must condone it. For such extremists, an offense to the religion is a personal assault not to be met with more words only, but also violence. If the Americans wont stop the speech that attacks them, they feel entitled to do it themselves.

Some of the Muslim world is easily offended. The reason for this is deep and tender. The beginning of Muslim history is one of spectacular success. The religion started in the 7th Century in the desolate and poor Arabian Peninsula and within a few hundred years spread from Spain to Indonesia. Muslim science and trade surpassed that of the entire world. The thinking of their philosophers was cutting-edge for the day. They had amazing architecture, art, and literature. Islam was great and was supposed to spread throughout all the world.

But, it didn’t. The fall of the Muslim, and particularly Arab Muslims, was swift and brutal. Mongols, Europeans, and Turks beat them militarily and surpassed their knowledge in humanities and sciences, and prospered above them. Even the most proud of Arab Muslims, when you talk to them, seem to be tenderly aware of their culture’s weaknesses and failures. The poverty, disparate treatment between men and women, rich and poor, and from faction to faction are all too easily observable to ignore. When outsiders poke at those tender weaknesses, some Arab Muslims explode into anger and violence.

In a way, their feelings are understandable; yet, violence is only hurting their culture more and incurring more disrespect and ridicule from outsiders. Taking responsibility as a society and channeling that frustration into improving life in the Arab world is the proper direction; not violence against annoying speech. Turkey, currently ruled by an Islamist party, has embraced pluralism and is one of the most respected and prosperous Muslim countries in the world. In some ways, Turkey is an example of a better direction. I am optimistic that change will come, perhaps slowly, but it will.

RECONCILING RIGHTS OF SPEECH WITH OTHER RIGHTS AND THE INTERESTS OF THE STATE

The right to free expression is not without bounds. It is necessarily delimited by other individual rights held by American citizens. In my view, the primary interests of the State are protecting its citizen’s individual rights and promoting a virtuous society. Freedom of speech and the right to receive information freely should be unfettered to the extent that it does not impinge on the rights of others. However, when the rights of others are affected (e.g. perhaps yelling fire in a crowded theatre or verbally abusing someone day in and day out week after week) then the state has the legitimate right to restrict the expression and receiving of information.

When a question arises as to where to draw the line between the right to free speech and some corresponding and mutually exclusive right, courts and legislatures should engage in an analysis similar to equal protection under the 14th Amendment. Laws restrictive of speech based on viewpoint are particularly suspect, content-based restrictions are suspect on an intermediate level, and content-neutral restrictions are presumed to be a legitimate use of State power unless proven otherwise. I assert that citizens should be afforded the RIGHT to pursue moral living without burdens that a reasonable or average American could not withstand. In other words, if they are accosted by pornography or abusive language or intellectual dishonesty that would overcome an average person’s ability to reason or live honorably within broad strokes of morality, than the law should be quick to limit speech at that point. Insults, blather, pornography, obscenity, threats, objective falsehoods, and the like are of such slight value as a step to truth, that the benefits of free speech are plainly outweighed by the broad morality, safety, and order such speech threaten. As we become a more virtuous society, the abilities of a reasonable person might improve. However, I believe that moderating free expression, not to promote morality, but to enable morality, is within the providence of government. Freedom is necessary for a virtuous society.