Love the First Amendment? You'll hate the Second! (And vice versa)
While the tech world and the FBI continue to argue over the Fourth Amendment, for the majority of the country the debate remains firmly centered around the first two.
Shootings in San Bernadino and elsewhere have ensured the Second Amendment remains a hot issue this election cycle. Meanwhile a series of high profile stories – the (sometimes physical) attacks on reporters by Donald Trump and his supporters, along with covert recording of Erin Andrews and Hulk Hogan – have prompted fierce debate on whether any limits should be placed on First Amendment freedom of speech.
What’s interesting is how First Amendment absolutists are often the most likely to argue for restrictions on the Second. And vice versa.
Following the (surely temporary) $115m judgment for Hulk Hogan against Gawker, a barrage of journalists took to Twitter to warn of the chilling effect the judgment would have on the First Amendment.
Gawker's First Amendment arguments are ugly, but it does not mean they are wrong. The First Amendment is ugly sometimes.— Trevor Timm (@trevortimm) March 18, 2016
"But it's gawker."— Sara Morrison (@SaraMorrison) March 19, 2016
I didn't realize "except for gawker" was in the first amendment!
And yet whenever there's a mass shooting, one cannot move for journalists patiently explaining to readers that the time has come for reasonable limits to be put on the right to own high powered or automatic weapons.
In fact, here's Trevor Timm in the Guardian describing it as "sickening" that "Republicans will refuse to vote for literally any gun control legislation despite the country’s mass-murder epidemic." And here's Sara Morrison mocking Republican politicians who campaign on a platform of less gun control. Not to mention the fact that, while Gawker argues in court for its First Amendment rights to be absolute, it publishes page after page of articles promoting greater restrictions on the Second.
Meanwhile, I do so hate to stereotype Florida juries but one has to wonder how many of the very same Sunshine State citizens who attacked Gawker’s right to publish video of a bare Hulk Hogan would run riot should a court try to curb their right to bear arms?
As with almost everything happening in America right now, this is a clash of cultures and of classes. A battle between East Coast intellectuals who believe freedom is best defended with well-chosen words, and Real Americans™ who would rather put their trust in warm gun. Each quite reasonably wants to protect their own weapon of choice while weakening those of their perceived enemies. (When I say "reasonably" I of course exclude Donald Trump, who appears to love the Second Amendment so much that he wants to kill the First, presumably in the belief that the remaining ones all then move up one place.)
As a Brit, I have first hand experience of what happens when you don’t have a First Amendment, or a Second, or a Third, Fourth, Fifth or... Twenty Seventh. In my homeland, strict anti-press laws too often favor the rich and powerful over reporters seeking the truth. There’s a reason America has a special law to protect American citizens from insane British libel judgments. And, as Piers Morgan never ceases to patronizingly explain to Americans, the UK has some of the strictest anti-gun laws in the world. Most British bobbies remain unarmed and even the hardest criminals generally consider it jolly unsporting to go tooled up on a blag.
Perhaps my nationality makes me naïve, or maybe it gives me clarity. But living in America – where some of my best friends are journalists or gun owners, but rarely both – the answer seems pretty simple.
Both the First and Second Amendments were always intended as statements of principle: Americans should, as a rule, have a right to free speech and the right to possess a firearm. What they should not automatically have the right to do, however, is to use either of those rights in a way that harms innocent victims. Just as the founding fathers clearly had no interest in protecting the rights of people like Syed Farook, it’s hard to imagine that they would have too much sympathy for Nick Denton (a bloody Brit!) wanting to profit from cameras hidden in the bedrooms of celebrities.
None of which is to suggest that guns and words are equally dangerous, although the idea that words don't kill people is patent nonsense. The question is whether setting guidelines around a constitutional right is automatically an affront to our liberty -- a slipperly slope toward totalitarianism.
The answer to that question is no. And so we have courts and case law and juries and precedent which take the founding principles of the constitution and set guidelines: The famous “shouting fire in a crowded theater” or the Supreme Court’s decision in District of Columbia v. Heller which is hugely pro-gun but still acknowledges that some gun use should be restricted. Just as reasonable gun regulation will cause almost no inconvenience for millions of law abiding gun owners, neither will a reasonable limit on when people’s genitals might be considered news have much impact on anyone but scumbags.
(Sure enough, legal experts have already begun pointing out that the Gawker verdict will have little or no effect on free speech. Says one expert to the Times: "[it] could be bad for the future of sex tapes, but I’m not sure it would be a threat to anything else.")
What those reasonable restrictions might do, however, keep a few more schoolkids alive, and make a few editors take some time between mocking rape victims and yukking it up about child porn to consider the human impact of their stories. Those are things on which we should all be able to agree.