The First Amendment needs to be better taught

It seems simple:  Congress shall make no law " abridging the freedom of speech, or of the press."  Through the incorporation doctrine triggered by the Fourteenth Amendment, the obligation to observe the rights conferred to people by the Bill of Rights are extended to state and local governments.  The major misunderstanding of free speech is that people think it is protected no matter where they are or what they say.  And its application of the amendment to the press is terribly misunderstood.

Some people contend that slander and libel laws and laws against making false reports to the police violate the Constitution because they punish free speech.  Again the Fourteenth Amendment with its "equal protection under the law" clause comes into play.  That clause gives government the obligation to protect people from harm, and libel can do devastating and unfair harm.  The categories of speech which can be regulated  include "obscenity, defamation, fraud, incitement, fighting words, and speech integral to criminal conduct."  The reasoning is that those categories "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth.”  In other words, those kinds of speech have no value which contributes to freedom.  Rather, they can jeopardize a person's freedom.

Lies are covered by the term fraud in the delineation of what is not protected by the First Amendment.  In court, telling a lie is punished as perjury.  So, while purposeful speech is protected as free, there are measures to protect the integrity of speech.  People are free to speak as critically as they wish, but are restrained from vandalizing other people or the language itself.  Such restraints are necessary to prevent society from falling into to total dysfunction.

The rule of free speech protects the right of people to speak out but also the right not to be compelled to speak.  You cannot be made to say something you don't wish to. Again the Fourteenth Amendment affects this.  If you are witness to an action that harms another person, you can be subpoenaed to come to court and testify.  If you refuse, you can be jailed for contempt of court. It's a matter of giving everyone equal protection under the law.

Freedom of the press has an aspect that confounds many people.  Any medium has the right to be selective in what it chooses to print or broadcast.  That right also has limitations accorded by libel laws and the prohibition of fraud.  Although the freedom of the press gives the right of some media, such as Fox News, to dabble in proscribed practices, it also gives media the freedom to strive for excellence.  Some media does that.  Such media is selective.  It fact checks what it publishes.  It is selective about the caliber of material it uses. It insists upon literate, reasoned, fact-based writing.  And that causes many to complain.

When the Internet made it possible for readers and viewers to comment on articles, the responses flooded in.  At first, the media was not prepared to monitor the responses.  Whatever was submitted was printed and the media was inundated.  But  a Pew research study showed the media that the responses had a very negative effect.  Readers tend to perceive a medium according to the lowest and worst items it publishes.  At a time when a loss of subscribers and advertisers was forcing a retrenchment in the media, many simply ending, it was losing its most discerning audience.  Newspapers such as The New York Times and The Washington Post started monitoring the comments although they were financially limited in how thoroughly they could do it.  They applied computer algorithms so they could weed out the most flagrant violators of thought and grammar, but they do not have the resources to edit comments to standards of informed literacy.  To maintain standards, however, the most deficient comments have to be eliminated and bad grammar and spelling makes the entire publication look bad.  With letters to the editor, staff will work with intelligent contributors to bring the level of thought, expression, punctuation, and grammar up to the level required in the medium's style book.  But no media has the money for the extra staff to accomplish that, so comments hang out there by themselves like a piece of toilet paper stuck on a shoe.  The media hopes that illiterate and incoherent comments that slip by will not dissuade readers and viewers who expect intelligence and literacy.

Maintaining high levels of reporting and writing is as much a right of a free press as expressing criticism or publishing material that some might find offensive.   It is a right that extends to bloggers.  They have the right to set and maintain standards for comments on their blogs.  Those whose comments are rejected for malice, stupidity, and illiteracy will whine about elitism, but being reasonably educated, capable of rational thought and literate expression is a goal of our democracy, not a matter of being elite.  The First Amendment protects the right to exercise intelligence as well as the right to join the idiot chorus with sound and fury,  And it gives the media and bloggers the right to reject the sound and fury.  Some fine blogs would improve if they rejected the comments by trolls.

That raises the question of some people being rejected as speakers on college campuses.  When some speakers have been rejected, they whine that their freedom of speech has been infringed.  But some Constitutional scholars have pointed out that the freedom to say what you want has a concomitant right of freedom to listen to what you want.  And that right is particularly strong when you determine that what you refuse to listen to has "no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth.”  Thus, college students have the right to reject certain speakers as part of their exercise of freedom of speech.

The First Amendment gets complicated by equal protection under the law.  It needs to be better explained so that people fully understand their rights and the rights of others.