First Amendment Relativists (Update)

In his parting shot as ombudsman for National Public Radio, Edward Schumacher-Matos raised quite a few eyebrows.

When I joined NPR nearly four years ago, I discovered that many of my fellow ombudsmen refused to say “we” or “us” in referring to their news organization. This show of independence was commendable, but I wondered if it wasn’t also irrelevant, if not destructive—a small example of a fundamentalist mindset about news media ethics and related First Amendment freedoms.

See that word in there, “fundamentalist”? It’s used as a pejorative word, a smear, of those who refuse to recognize that “free speech is not absolute.”   That it is true that the First Amendment is not absolute is obvious and clear, but that’s not what they mean. Not be a long shot.

We must remember this: Ethics change. And they are different in different democracies. Ethics are professional standards, not deeper morals, which can change, too, but far more slowly. Morals come from a society’s soul, for lack of a better word. Ethics come from our more fickle brains, tied to the changing ways of, dare I say it, a business. And yet many in the news media are rushing to man the barricades for certain ethical interpretations of press freedom and independence as if they were absolutes—immutable principles worth dying for. Literally.

Then he throws up Charlie Hebdo, as the secondary trope of speech gone bad.  And so,

The United States has never had absolute freedom of the press. And the framers of the Constitution—I once held the James Madison Visiting Professor Chair on First Amendment Issues at Columbia University—never intended it to. You wouldn’t know this, however, from listening to the First Amendment fundamentalists piping up from Washington to Silicon Valley.

There’s that word again, “fundamentalists.” Schumacher-Matos taught First Amendment at Columbia, where apparently students would learn of the misinformation spread by First Amendment fundamentalists. They’re extremists. They’re wild-eyed, crazed fanatics who refuse to compromise.  It’s not accidental that the word is the same as that tacked onto the end of Muslim to denote terrorists. These are First Amendment terrorists.

In this case, the competing social and constitutional demand is the control of hate speech in the interests of social cohesion, without which the very idea of a nation is impossible.

The United States is the ultimate multi-ethnic, multi-sectarian society. It has sinned mightily against slaves and immigrants, but has managed to hold itself together through imposition by a civil war, an evolving sense of morality, and yes, political correctness in how we treat each other. Laws followed along.

I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would. It is one thing to lampoon popes, imams, rabbis and other temporal religious leaders of this world; it is quite another to make fun, in often nasty ways, of their prophets and gods.

As Eugene Volokh and Hans Bader explain without breaking a sweat, Schumacher-Matos is plainly wrong about the law.  The First Amendment protects blasphemy and what Schumacher-Matos calls “hate speech,” itself a phrase calculated to make it sound horrible when its meaning is “speech you personally hate.”  And all of this is wrapped up in an ugly package called First Amendment fundamentalism.

The problem isn’t limited to the fact that Schumacher-Matos is “A Drooling Moron Who Doesn’t Understand the First Amendment,” as Daily Caller called him.  His approach to the First Amendment doesn’t merely misstate the law, using his attributed credibility as NPR’s ombudsman to make his readers stupider under the assumption that they are clueless and will therefore believe his representations because he taught First Amendment at Columbia.  His approach is to vilify those who call out his view as fundamentalists.  Bad, bad fundamentalists.

What Schumacher-Matos promotes is First Amendment relativism.  That’s right, he’s a Relativist.  He wants the First Amendment to be wrapped up in empty rhetoric that comports with the feelings of those who feel the pain of words.  And if they feel pain, how can it not be wrong?  How can we protect speech that hurts people’s feelings?

Schumacher-Matos is not alone in this endeavor. He is one of a cabal of First Amendment relativists who argue that speech that hurts feelings is of no value, is of no importance, is hardly what the First Amendment means to protect.  What First Amendment relativists contend is that we must have robust Free Speech, but (trigger warning, Gertruding ahead) only upon condition that it not hurt anyone’s feelings.

Stripped of hand-wringing rhetoric, this is what the relativists seek:

Rather, he seems to be pointing to legal restraints as well. Why else the talk of the lack of “absolute freedom of the press,” the views of “the framers of the Constitution,” the condemnation of “First Amendment fundamentalism,” “the competing social and constitutional demand is the control of hate speech in the interests of social cohesion,” and whether “American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution” — put together, terms that refer to legal questions, and not just ethical ones?

To be sure, his disdain for broad views of the First Amendment isn’t limited to blasphemy and supposed “hate speech.” “National security is similarly another area of misguided media fundamentalism…. The new digital media is the loudest in demanding that journalists be blind to the security concerns of their government or their country…. These are the modern Puritans, in the rabid service of a universal ideal, and here the humanitarian left finds company with the libertarian right and that curious hybrid we might call Silicon Man.” Here, he seems to be talking more about editorial ethics and not calling for speech restrictions — but labeling supporters of broad speech protection “fundamentalis[ts],” “Puritans,” and “rabid” strikes me as telling as well.

The notion of how First Amendment relativists would reshape speech, and enforce it with legal sanctions, to castigate those who support broad speech protection so that ideas win or lose in the marketplace must itself be subject to market scrutiny.  If silencing the speech with which you disagree by calling it hate speech and characterizing its proponents as fundamentalists appeals to you, then you will join in this relativist movement and nod your head in agreement with Schumacher-Matos and others who try to pass off a First Amendment limited by speech they like and intolerant of speech they don’t.

It’s easy to like relativism. It allows you to believe you’re special while justifying getting your own way at the expense of principle and the rights of other people. Your speech matters; theirs is worthless and evil. Your speech deserves robust protection; theirs sucks.  Wrap it up in a pink bow and this concept doesn’t look nearly as ugly as when it’s called what it is, First Amendment relativism.

But before you hitch your speech horses to Schumacher-Matos’ wagon, you better be fundamentally sure that your speech is the stuff the relativists will agree with. If not, you’re fundamentally screwed.

Update:  At National Review, Andrew Stuttaford quotes a Guardian article on the attacks in Copenhagen that offers this:

With rights to free speech come responsibilities.

That would be the responsibility not to express any thought that would so hateful as to drive someone else to violence and terror. That’s what cowardice, hypocrisy and ignorance has to say about it, but it does make a tempting phrase for the unwary.

17 thoughts on “First Amendment Relativists (Update)

  1. Ross

    If I understand Schumacher-Matos correctly, me calling a serial killer a disgusting human being who committed unspeakable acts would be hate speech if it hurt the serial killer’s feelings. Would calling Schumacher-Matos an idiot without a valid thought in his brain also be hate speech, since he seems sensitive and would have his feelings hurt by that statement?

    1. SHG Post author

      Of course it would. A key facet of First Amendment relativism is that every listener decides the value of another person’s speech. Truth, obviously, is irrelevant.

  2. Not Jim Ardis

    I’d like to point out what others brought up when this word salad pile of idiocy came out…

    [Schumacher-Matos] once held the James Madison Visiting Professor Chair on First Amendment Issues at Columbia University

    Apparently that position is utterly meaningless if a thundering boob like Schumacher-Matos can hold it.

    And a law degree from Columbia, in light of this revelation and the need of their students to postpone finals because of their feelz, is officially worthless. Might as well get a law degree from the University of Phoenix.

    1. SHG Post author

      It’s easy to miss an alternative way of reading Schumacher-Matos’ going out of his way to note that his Columbia position: It creates attributed legal credibility, which he can then use to school the non-lawyers who lack the background to question or challenge his First Amendment bona fides.

      In other words, it’s not that he’s a moron, but that he’s abusing his academic cred to promote his cause. Can you think of anyone else who does that? I know I can.

        1. SHG Post author

          My preference is to condemn from the other side, academic intellectual dishonesty. But then, I’m mean to lawprofs.

          1. Not Jim Ardis

            It’s part of your charm.

            And I just think that the revelation that the guy who held a position that supposedly is about the First Amendment actually doesn’t like the First Amendment very much doesn’t do that institution any favors.

  3. Anton Sherwood

    I’m scratching my head over the notion that we must not mock those priests successful enough to be called prophets, while other priests are fair game.

    And where’s the line between mocking a doctrine, which S-M is happy to do, and mocking a god?

    1. SHG Post author

      Don’t waste too much effort trying to make sense of it. The relativist will simply tell you what speech is permissible and what’s not. The line is whatever the relativist decides it is at any given moment.

  4. Rebecca

    I find it strange that some leftists who call for the restriction of “offensive” speech often align themselves with fundamentalist Muslims who demand censorship of things that offend them. I don’t think any of those leftists would bow to demands from fundamentalist Christians to restrict mentions of homosexuality because they offend them. Strange bedfellows.

    1. SHG Post author

      It’s inaccurate to say they “often align,” or that they’re “bedfellows.” You observe that their efforts end up in the same place, even though they would vehemently deny it and dispute any parallel whatsoever, because they do so for righteous reasons while others are evil.

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