Spanish Haarlem

This is the nineteenth in a series on The Harvard Classics; the rest of the posts are available here. Volume IXX: Faust Egmont, Etc., Goethe, Doctor Faustus, Marlow

The First Amendment to the United States Constitution 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.

In that one sentence, the framers memorialized several of the “inalienable rights” central to the premise of the Declaration of Independence and the founding of the nation. Yet, despite how concise the amendment is, people seem constantly to misapprehend its significance. Here are a couple of critical points where people are often mistaken.

1. The amendment only applies to government action. People constantly confuse their right to free speech with a right to be free from the private consequences of that speech. A speech code by a company or private school is not subject to First Amendment analysis. Likewise, a private club may have religious requirements that a government actor may not.

2. That doesn’t mean that other laws do not matter. Some people on the internet hold the idea that “the First Amendment stops the government from infringing on your free speech, but it doesn’t stop me from punching you in the mouth.” Although that statement is technically accurate, punching somebody in the mouth violates laws independent of the First Amendment. Additionally, civil rights laws, government licensing requirements, and so forth may create obligations for private individuals or companies not to discriminate based on the exercise of certain First Amendment rights.

3. The amendment applies to all government action, not just the federal government. The plain of the first amendment states that “Congress shall pass no law…”; it does not mention state governments.  However, a long series of Supreme Court cases has established that the First Amendment (and most of the rest of the Bill of Rights) applies to state action through the “incorporation doctrine”. Even so, the First Amendment is probably redundant in most cases. Each state has its own constitution, and each state constitution includes free speech clause. The New York Court of Appeals, for example, has held that the free speech clause of the New York Constitution provides a greater level of protection than the First Amendment.

4. “Speech” consists of a lot more than just talking. Supreme Court cases have held that the First Amendment’s speech clause protects “expressive conduct.” That can mean a wide range of actions, including burning the American flag, nude dancing, remaining silent, or cross burning.

5. The amendment is especially important because it protects those without political clout. As a practical matter, no government would ever need to be restrained from punishing pro-government speech. Likewise, statements that everybody agrees with are under no threat of suppression. It is the provocative, the unpopular, the revolutionary that needs to be protected. Minority religious groups and others who are heterodox in the myriad ways that people may stray from conventional norms are the people who have the most to fear from popular government, and the most need for an amendment that protects, above all, the freedom of the mind.

Beer of the week: Primus – This week’s reading is set in what is now Belgium, with the principle action taking place in Brussels. So despite the constant references to “Netherlands” and “Netherlanders”, the play is best paired with Belgian beer.  Primus is a “premium lager” from Haacht Brewery in Flanders, Belgium. It is a standard European lager; it looks good, smells good, and tastes good. It is a well-balanced, if unexceptional, beer.

Reading of the week: Egmont by Johann Wolfgang von Goethe – In this scene, we learn that the Spanish governor of the Netherlands, the Duke of Alba, “published a decree, by which two or three, found conversing together in the streets, are without trial, declared guilty of high treason.” He also prohibited discussion on affairs of state and made criticism of the government a capital offense.

Question for the week: How many rights are in the First Amendment?

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The Living Word

Books are alive! Not literally. In fact, their figurative life is more like the life in the germ of a seed. Not active in itself, but full of potential. As John Milton wrote in Areopagitica, books “are as lively, and as vigorously productive, as those fabulous dragon’s teeth; and being sown up and down, may chance to spring up armed men.”

And the potential of books is unlimited. The books themselves are finite, consisting of only so many words on so many pages, but in those words and pages they “contain a potency of life in them to be as active as that soul was whose progeny they are.” Books may express simple, straightforward ideas or complex esoteric concepts; but either way, their impacts on the world go beyond themselves in the form of inspiration. Sometimes, they inspire ideas or actions that are at odds with the powers that be.

Areopagitica is not just an essay on the value of books; it is a vibrant defense of freedom of press. Milton was fighting against a law that would require state approval of all printed material. The form of his defense is that books are potent and active in themselves. Of course, this is exactly the reason that the state would censor books in the first place. It is a strange argument that the state should not engage in censorship because books are productive and active since the state necessarily fears productive and active thought. Any novel thought, particularly in the form of political or social organizing, is a threat to the establishment.

But Milton appeals to the members of Parliament as individuals, as men who “esteem it to imitate the old and elegant humanity of Greece.” He does this because although the state itself must always fear that new ideas will upset their established power, true humanitarians acknowledge that the intellectual progress of the human race should not be impeded for the sake of “the party line.” An attempt to censor a book is an attempt to kill truth itself; and “revolutions of ages do not oft recover the loss of a rejected truth, for the want of which whole nations fare the worse.”

Beer of the week: 5,0 Original Lager – An online program generated this translation of the label to this supermarket brew: “Just a simple black and white box! Gold imprinting, with no effort! Only a simple design! No expensive TV advertising! This savings goes to you! We saved as much as for everything! Except on the quality of the beer! 5.0 is an original lager, brewed to the German purity law! Ingredients: water, barley malt, hops and extract! Put your money better one! You pay less now for a good Pils without frills!”

I am not sure that I’d call this a “good Pils”, but it certainly is without frills. It is a simple mass produced beer. Not much on the nose, very basic flavor. Almost a savory aftertaste which surprised me (even though it is actually very slight.) If the price is right, this could easily be had in large quantities.

Reading of the week: Areopagitica by John Milton, Excerpt – One of the most eloquent defenses of free-speech I’ve ever read. I enjoyed this more than I enjoyed his poetry.

Question of the week: Can freedom of speech ever mean anything less than total freedom of speech? Does even the slightest restriction amount to a total lack of freedom?