“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.”

So all right. We’ve been hearing a lot about this lately, right? Those are the words of the First Amendment to the Constitution. But what does it mean?

What is free speech?

Does it mean anybody can say anything they want? Anything? Or are there limitations? Should there be?

Does it only apply in American? Only to citizens? Does it apply differently to public figures, to famous people?

And why the hell are we still talking about this? Do we not know what it means? Shouldn’t we know what it means by now? I mean, really?

Okay: well first, let me just address that. I do not think there is anything wrong with having a conversation again. I don’t believe that something can be talked through once, and then that’s it, and we all know everything there is to know, and there’s no need to bring it up again. I understand that people get tired of having the same conversation over and over again, but you see, I’m a high school teacher: my whole job is essentially to have the same conversation over and over and over again. From one year to the next, from one class to the next, from one student to the next, I have to continuously repeat myself, and that often means I have to continuously find new ways to say the same things I have said before. The fact that I am willing to do that, even eager to do that, is what makes me a good teacher: because if I got impatient with students who didn’t hear or didn’t understand what I said to another student, then nobody would learn after the first student. I confess that I do get tired of saying the same things to the same people over and over again, but that’s not the same thing as having the same conversation: that is stating the rules, the limits and boundaries which are necessary for us to live and work together and abide one another, and then stating them again because some childish, selfish person decided they didn’t have to follow the rules. And then I repeat myself: and then I get angry about it.

But if you didn’t understand what I said before? I will say it again. If you don’t understand it after the second time, I will say it a third time, in different words or with different examples. And I will keep repeating it until it is clear and fully understood. And then, when you have a new thought or a new experience, and that changes how you view what we talked about before, I will happily talk about it again: perhaps after I have thought about it some more, to integrate whatever new concept or perspective you brought into it today, apart from what we discussed yesterday. No problem.

We seem to still be having trouble with freedom of speech. We are still talking about it, still debating it, still disagreeing over it; and now we are doing this in the wake of Charlie Kirk’s death. In that wake, and, I suspect, pretty directly related to that terrible crime, my wife was censored by Facebook, because someone reported a post she shared about Trump, calling it spreading misinformation. It was not, it was simply a joking criticism of the administration; specifically, it was this:

My working assumption is that the person who reported her post was a Trump supporter, angered (as always) by libs and the left and so on, and recently energized by Kirk’s murder and the gaslighting from the right, convincing people to take action now to defend free speech (And please stop talking about the Epstein files and the still ongoing wars in Gaza and the Ukraine and the swiftly tanking U.S. economy), who probably reports every left-leaning or Trump-criticizing meme they see. Probably laughing while they do it. Facebook, as a private company that doesn’t want to suffer the wrath of the Trump administration, not only took down my wife’s post, but has also been monitoring and restricting her posts ever since: they are limiting her free speech. These new situations — unique neither to Charlie Kirk nor to my wife — has given people a new perspective on the issue, so: let’s talk about it again.

Here. This is where we start.

“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.”

Okay, so the First Amendment actually says a lot of things. It restricts Congress’s ability to control religion, and the press, and peaceable assembly, and the right to petition, all in addition to the freedom of speech. Let’s put those other aside for now: though it may be worth considering why all of those different, and all of those important, ideas were all packed together into a single amendment, and then the next one is only on one issue: guns. And the one after that is only about not letting soldiers sleep in your house against your will. Both important, maybe (though neither as important as freedom of speech) but both very narrow topics. Why are all these other things together in one place? Honestly, I haven’t read enough on the Founding Fathers and their choices regarding the Bill of Rights, so I could only speculate; but either way, we can ignore this topic for now, because we’re only here talking about the freedom of speech (and the others will become more clear as we focus just on speech, I think). Freedom of the press might come into it directly if we want to talk about Jimmy Kimmel, but it’s not clear to me that that discussion needs to involve anything other than free speech; that one right seems enough to cover what happened there. So let’s focus.

What is freedom of speech? Why do we have a right to it?

So hot take: freedom of speech is not actually critical. It is a roundabout way to protect the actually critical thing — or rather, two critical things: freedom of thought, and freedom to express those thoughts. Freedom of thought is absolutely critical to humanity, because in the most essential sense, we are our thoughts. I am what happens inside my skull. My body is also a critical part of me, but if I have a broken body, I am still me, because it doesn’t change what is inside my skull. It changes how well I can act out and reflect the decisions I make inside my skull — my freedom to express my thoughts — but it doesn’t change who I am. But if my brain dies, then who I am is gone, even if my body remains. My body can’t express my thoughts if I have no more thoughts: and without those thoughts, there is nothing for my body to express, no purpose for it to achieve; it can continue for a period of time, and then it will, mercifully, stop.

I wonder if my body would be sad if my brain died. Would my body grieve the loss of my mind?

Well: I would grieve the loss of my mind, so the question of my body’s reaction is academic. It is a part of me.

Now, in the ordinary way of things, there is nothing that could limit my freedom of thought. It’s one of the great things about being a sentient, thinking being; on that most essential level, we are always free. (Well, almost.) It’s because we are always essentially alone, and because there is no substance to thoughts: they can dance and flit anywhere we can imagine, always within the skull that holds the brain; and nothing will change other than the thoughts themselves — and potentially the mind having those thoughts. Nothing else is affected, and so nothing else can affect those thoughts: they can dance and flit to anywhere else, faster than anything that actually exists. Nobody else will even ever know where our thoughts are going, inside our minds. This was what Henry David Thoreau was talking about in On Civil Disobedience, when he described the inability of the state to actually punish him with a night in prison after he refused to pay his taxes:

I could not but smile to see how industriously they locked the door on my meditations, which followed them out again without let or hindrance, and they were really all that was dangerous. As they could not reach me, they had resolved to punish my body; just as boys, if they cannot come at some person against whom they have a spite, will abuse his dog. I saw that the State was half-witted, that it was timid as a lone woman with her silver spoons, and that it did not know its friends from its foes, and I lost all my remaining respect for it, and pitied it. Source

As he says, his thoughts cannot be trapped inside the cell, but can go anywhere that Thoreau wishes to send them: and the attempt to punish his body because they cannot punish his mind is just pitiable. What the State wants here is to control his thoughts, because they want to control Thoreau’s actions through his decision-making ability. Because their initial attempt to control his actions, through a threat to his body’s freedom if he made a certain decision the way the State didn’t want him to decide, didn’t work: knowing the threat, Thoreau still decided not to pay his taxes. His thoughts were uncontrolled, and his person/body/being followed along that thought decision, and didn’t pay his taxes. So then the State put him in jail: and he just kept right on deciding not to pay his taxes, regardless of what they did to his body. His thoughts were entirely unaffected, and uncontrolled, and they did the thing that the State didn’t want them to do — without any influence from the State at all. And so we all do, every thought we have that is in defiance of what our society demands of us. We are free to think whatever the fuck we want to, even the thoughts we’re not supposed to have, or not allowed to have.

Please take a moment and think a thought or two, which people outside of your head would not allow you to have, if they could tell you what to think. Any thought you like. Any thought at all.

Nice.

So because nobody can control a person’s thoughts, the laws focus on the second critical part of the process of having a free mind: the expression of our thoughts. Free speech, and in a broader context, free expression. Let me focus on that second aspect for a moment, because it shows more clearly what the point is here.

I can have my thoughts, and you can’t stop me. So far so good. But obviously, if I can’t act on those thoughts, then my thoughts cannot be complete. If, for instance, I think about spitting on the sidewalk, decide to spit on the sidewalk, but I cannot spit on the sidewalk — at the moment that is just because there is no sidewalk near me; I could spit on the floor of my office and call it a sidewalk, and to some extent I would have acted out my thought, and brought that thought to its completion, but then I would have to deal with my spittle, and also my wife would kick my ass — so I don’t spit: and thus the thought is not free, it is limited. I think, “I’m going to spit on the sidewalk!” and then I can’t do it: the thought is constrained. When the thought is constrained by reality — “I want to grow nine arms and use them to juggle chainsaws!” — then again, my thought is not free, but there’s no point in talking about our freedom to do things that we can’t do, or the need to pass laws to prevent things that are not possible. At that point, all we can do is shrug, and say, “It sucks to suck, Dusty. But you go ahead and dream of nine chainsaw-juggling arms, that’s fine, you can think about it all you want.” Freedom of thought is still protected, because I can carry the juggling arms thought as far as it can go; and as thought is still the most essential aspect of being human, that’s fine then. Thoreau can think that his taxes should not be collected by a government that supports both human chattel slavery and a war of conquest against Mexico (the reasons Thoreau didn’t pay his taxes), and if the action is not possible — if taxes didn’t exist and so he couldn’t choose to pay them or not to pay them — then he has all the freedom he could ever have.

But see, what happened is, Thoreau’s aunt paid his taxes for him, against his will. I don’t know why: I suspect she either thought he was suffering in jail and wanted to help him, or she was ashamed that her nephew was in jail, and wanted him to stop embarrassing her. (I would guess the second one, because she did not consult with him before she did it, and if she wanted to help, seems like she would at least visit and ask if he was okay.) Which then limited his free expression of his thoughts: he could think his money shouldn’t go to the government, and he could decide not to give his money to the government; but the government got his money anyway. Not because it was impossible for the government to have his money, but because someone else took his choice away. I guess it wasn’t really his money, it was his aunt’s money; but Thoreau’s idea was not to save his own pocket change, it was to refuse to participate in the government’s immoral acts, and when money went to the government in his name, it defied and negated his decision. Imagine if he talked to someone about not paying his taxes, if he argued with the government tax collector about the issue, and expressed his disagreement with the government, and said, “I will never contribute to this immorality, sir!” Can’t you just see the agent smirking and saying, “Sure, buddy. I mean, we already have your money, so you can say what you want.” Thoreau’s thought, while still free, has been constrained in its expression: and that pretty much ruins the thought; a thought which was not constrained by impossibility, it was possible, and he could have acted upon it — but then the option was taken away.

This is why, of course, jail is actually a very effective punishment for most people: because while we are all free to think our way out of jail, I would guess most people in jail want to walk out of jail: and they can’t. Which means their thoughts, while potentially free, are nonetheless really trapped along with their bodies. It is worth noting that, if you can find a way to free your thoughts, then prison wouldn’t matter so much; it would become a struggle to try to force you, through continued discomfort, to think about being in prison and how much you don’t want to be; then your thoughts are controlled, and trapped, and you are suffering for your punishment. But when Malcolm X was in prison, he found freedom in learning: and he talked in his autobiography about how prison really didn’t bother him at all, once he taught himself how to read and found things worth reading — and also once he found his faith in Islam, which also gave him something to think about that wasn’t constrained by being in a cell.

I have often reflected upon the new vistas that reading opened to me. I knew right there in
prison that reading had changed forever the course of my life. As I see it today, the ability to read
awoke inside me some long dormant craving to be mentally alive. I certainly wasn’t seeking any
degree, the way a college confers a status symbol upon its students. My homemade education gave
me, with every additional book that I read, a little bit more sensitivity to the deafness, dumbness,
and blindness that was afflicting the black race in America. Not long ago, an English writer
telephoned me from London, asking questions. One was, “What’s your alma mater?” I told him,
“Books.” You will never catch me with a free fifteen minutes in which I’m not studying something I
feel might be able to help the black man.

…

But I’m digressing. I told the Englishman that my alma mater was books, a good library. Every
time I catch a plane, I have with me a book that I want to read-and that’s a lot of books these days.
If! weren’t out here every day battling the white man, I could spend the rest of my life reading, just
satisfying my curiosity – because you can hardly mention anything I’m not curious about. I don’t
think anybody ever got more out of going to prison than I did. In fact, prison enabled me to study
far more intensively than I would have if my life had gone differently and I had attended some
college. I imagine that one of the biggest troubles with colleges is there are too many distractions,
too much panty-raiding, fraternities, and boola-boola and all of that. Where else but in a prison
could I have attacked my ignorance by being able to study intensely sometimes as much as fifteen
hours a day? Source

So again: the real goal of punishment, the only kind that is possible being constraint of the body, is to control the mind; and if the mind is able to continue thinking, then the constraint of the body is essentially meaningless. But in the vast majority of cases — and also, I will point out, in these two cases I have mentioned, because I don’t doubt that at some point Thoreau would have wanted to get out of jail and therefore would have felt trapped, and therefore actually would have been trapped, and Malcolm X would have been severely constrained if he had not been released to become the leader he became — trapping the body, because it limits the expression of thoughts, is an effective way to control a person’s thoughts. And even more importantly, for the purposes of society in general, constraining someone’s actions, the expression of their thoughts, is enough, because the purpose of prison is to stop a person from affecting others, and thoughts have no effect without expression. So just like I accept that I can’t ever have those juggling arms I dreamed of, society accepts that it can’t ever control our thoughts: and it just makes do with having potentially total control over our bodies.

And that’s where the amendment comes in.

I hope it is clear that thought without expression through the body, whether through action, through communication, or through a public display of some kind, is incomplete, and more importantly, useless. A useless thought is not a bad thought: all impossible thoughts are useless in and of themselves, which includes every dream, every fantasy, and every imagined existence; but they can still have enormous impact; and even if they don’t, they can encapsulate important things about the person who thought them, and that’s good, even if that encapsulated thought never reaches outside the mind that dreamed it. But when society wants to control us, controlling the impact we can have on other people is the primary goal and thus also the primary means of controlling people and the thoughts that define us. And that’s why the Founding Fathers included an Amendment that protects free expression in several different forms, most importantly speech and press and peaceable assembly.

Let me be clear now: the Founding Fathers were not always right. You don’t have to look any further than chattel slavery to know that they and their ideas, and the documents and the nation that they built, were fundamentally flawed, right from the beginning. There were some bad thoughts in there, and we’re still dealing with the legacy of those bad thoughts. But they were right in this: government wants to control people, and that means they need to control our thoughts — but they can only control our bodies, which is what they try to do. The First Amendment is there to set a baseline protecting our thoughts, through protecting the only things the government can attack and control, which is our actions.

So that is the essence of the Amendment, and the right: we have the right to express our thoughts, freely. The government cannot control our expression of those thoughts, so long as the thoughts do not have a direct impact on others in a way the government can control, and should control. In other words, if I decide to pick up a rifle and shoot someone I disagree with, that is no longer simply the expression of my thought, now it is an attack on another person, and it can be controlled, and should be because it is harmful. Though I will point out that, to some extent, the expression of that thought can’t always be controlled; sometimes it can only be reacted to after I have already done the thing I decided to do. But insofar as it can be predicted, and thus prevented, it should be.

Do I need to talk about why I shouldn’t have the unfettered ability to inflict harm on my fellow humans? Or can I assume we’re all on board with that? Just for the sake of saying it, the issue is that I have no right to control other people’s thoughts, nor their expression of their thoughts, except in the service of preventing harm. If I do harm to another person, I am affecting their ability to express and complete their thoughts, or possibly even their ability to think thoughts in the first place. If I am the one looking to do harm, not just prevent harm, then someone should have the ability and the right to stop me before I do harm.

Should that be the government? My first thought was to say that of course it should be; that this is the reason why we create governments and cede to them the power to control us: so they can prevent us from doing harm to one another. But government is frequently bad at this, and in that case, maybe other people and other authorities should have that power, that right, that responsibility, to prevent my harmful actions. But this is where we get into a conversation about how society should work, and that’s too complicated for right now. Suffice to say that the government, as imagined by the Founding Fathers — that is, existing with the consent of the governed — is a reasonable place to invest the power to control people’s obviously harmful actions. I would like to expand on the FF’s ideas about the governed who were consenting to the government, to include all of those who are governed, which would include people they didn’t consider worthy of consideration, or even consider to be people; it would also include all those who reside within the jurisdiction of the government in question, and who would be subject to the government’s control: those people should be considered “governed,” and therefore should be asked for consent to the government over them. Yes, that means undocumented migrants as well as those who don’t have full legal status. And also suspects, convicts, prisoners and parolees, all those governed by the justice system: they, too, must consent to the government over them, or else it becomes illegitimate and tyrannical.

And to be clear, when I say “consent,” I mean continuous, affirmative, and enthusiastic consent. The only kind of consent that matters.

Also at this point, I would like to express my burning volcanic rage that the First Amendment does not include the right to vote. What the actual FUCK, Madison? Why did you leave that one out?

It was the slaves, wasn’t it.

So all right: we should give the government the power to control our actions which can be harmful (and which can be controlled): but we retain the power to consent to be governed, and also the power to abolish the government if it becomes destructive of the ends we created it for, ideally through voting in free and fair elections. Since the government exists with our consent, what one thing do we most clearly need in order to legitimize that government?

A voice. The power to say “Yes,” and the power to say “No,” and to have those words heard. The power to consent, in the simplest terms. Continuous, affirmative, enthusiastic consent. If we don’t have that power, the government has taken too much control and has lost its legitimate authority, and should then be abolished: and that is the intent of the First Amendment, to protect and enshrine, first and foremost, our power to keep or abolish our government, which would otherwise have unchecked power over us.

You know: the power to vote. But in the absence of that, the power at least to speak, and to be heard. Not just to think freely, but to actually express those thoughts. The power to spit on the sidewalk. And on fascists.

So. Now. Did Charlie Kirk have freedom of speech? He did, and he should have: he spoke, and was heard. He lost that freedom when another person caused harm to him, murdered him, in an act that our government should have done all it could to prevent. Was Charlie Kirk a promoter, and therefore a martyr, for the cause of free speech? He was not: it was not his job to protect people’s right to free thought nor to free speech as an expression of their thoughts; inasmuch as he encouraged free thought and the free exchange of ideas through debate, then he was a proponent of free speech; but watching his debates makes it very quickly clear that he was not interested in the expression and free exchange of ideas, he was interested in scoring points and (as my students would say) farming aura: trying to get famous and powerful because he was seen as a staunch defender of his political and religious views. This is no criticism of the man: I would also like to get famous and powerful using my words, though I’d probably rather write than speak; but I want the same thing. But it does mean he was not a martyr for the cause of free speech, because free speech was not his cause: it was the means by which he tried to achieve his purpose, to fight for his cause. He shouldn’t have had to defend his free speech, he should have simply been able to exercise it. And just like Charlie Kirk, as a private citizen, it is not my job to protect free speech directly: that is what the government is for. To secure these rights, to Life, Liberty, and the Pursuit of Happiness.

Let me emphasize that again, because we talk about free speech as though it is just something that needs to be protected from the infringement of the government on our rights, that the point of the First Amendment is to constrain the government from taking away our free speech; the First Amendment is that thing, that is its point — but also, the real point of the amendment is to tell the government that it should be working to protect and secure that right for all people within its jurisdiction and influence. Actively. Affirmatively. Enthusiastically. Continuously.

Which means, in practical terms, that the government should not only have done more to protect Charlie Kirk from being murdered (if we believe the government could have done more to prevent that, which I think is self-evident, but that’s not the argument I’m making here), but also, it should be doing more to ensure that all people under the jurisdiction of the U.S. government, all persons resident in this country and under its control around the world, have the opportunity to be heard, to express their thoughts freely. By publishing their opposition to the war and genocide in Gaza, without losing their legal status. To have their case heard before an immigration judge, through the due process of law. Through posting whatever the fuck you want on social media, even if other people don’t like it, so long as it is not actively, directly causing harm. Through speech, through the press, through petition, through peaceable assembly.

Which means the government should have kept the Fairness Doctrine. And in this modern era, the government should ensure that social media does not censor people’s free speech, so long as that speech does no harm. In fact, I would argue that the government should have a platform for people to be heard, to be seen, to which all people who must consent to the government over them have access. I would include NPR, PBS, and VOA among those platforms, but I would argue the government should also provide some simple form of social media, to at least offer an alternative to the private companies, which are all controlled by billionaires with agendas. I don’t think the government should seek to control the social media companies per se, but they have a responsibility to ensure our rights: including the right to speak our thoughts, online as well as through print and speech. The government should also protect protestors and ensure that they have the right to assemble and petition for redress of grievances, so long as they are peaceable in that assembly.

Yes, that last clause, as well as the earlier condition that speech should be protected as long as it does no harm, does create an opportunity for the government to limit free speech, depending on what we mean by speech that does harm, or by peaceable assembly. I think the current laws distinguishing between protest and riot, and the laws preventing libel and slander, make sense and should remain (I don’t know enough about the specific laws and so can’t speak to their current efficacy, but conceptually, I’m in favor), and where these two rights cross over, with the law preventing speech that incites to violence, is also a useful law that protects people from harm. I also think there should be a gray area around and beyond those laws (Does “Fight like hell or you won’t have a country” count as incitement to violence? I honestly can’t say, not without further evidence of intent and context. If only there had been a trial…), and that the burden of proof within that gray area should definitely be on the government, as the ones who enact the control of people’s speech, to show that someone lost their right because they were causing harm with their speech. We have a system in place to carry out that process: but we need to have people in the government who are dedicated to maintaining and using that system.

We do not currently have that. We have an authoritarian who wants to eliminate free speech because he doesn’t want anyone to have rights except himself. We have a legislature that agrees with him, completely and slavishly — they are not expressing their thoughts, they are expressing only his. (The opposition, presumably, is not expressing the authoritarian’s thoughts. We just need to find where that opposition is hiding…) We have a Supreme Court that also thinks no one should have rights other than the President, and themselves, because they think their trump card over Trump (pun obviously intended, as all puns should be — also, we should have a right to pun…No, we do have a right to pun, and it should be protected by the government.) enables them to live as exceptions to the dictatorial power they want to give him, and they like the idea that a dictator could enhance the lives of the people whom they (the “justices”) deem worthy of enhancement, and destroy the lives of those whom they deem worthy of destruction, without they themselves dirtying their lil fingies. They’re wrong, of course, because if Trump ever did become a dictator, he would end up killing or jailing the justices because they have defied him in the past, and no dictator can abide that kind of challenge to their power; but then, all of these people are wrong. They all think that the dictator would only use power the way they want him to use power, and that’s not how dictatorship works.

Please take note, all you MAGA voters who want Trump to hurt the people you hate, but not you yourself. That’s not how dictatorship works. He doesn’t dance to your tune. If the Supreme Leader is the only one with rights, then we will no longer have rights ourselves: not the right to life, not the right to liberty, not the right to the pursuit of happiness. We will then not have the right to express our thoughts through speech or writing, through assembly and protest and petition; more importantly, we will no longer have the right to consent, and though that immediately means the government will no longer be legitimate, it also means that we won’t have the ability to remove it without violence.

That is where the Second Amendment comes in. It is not, as the fools who care only about that one and not the First would have us all believe, the right which ensures all the others; that is the First Amendment. It is free speech. It is the power to consent, and to withdraw consent. The practical power that enforces the moral and intellectual power is the right to communicate, to agree, to assemble and stand together: that is what changes governments. (Also, if we don’t lose it, the right to vote. Tell me why the right to free exercise of religion usurped the place that should have gone to the ballot, I beg you.) The right to defend ourselves physically is the last resort when the first one has been lost: and every one of those gun rights advocates, from the rational ones to the chuckleheads, have been ignoring the infringement of the First Amendment while trying to protect the Second. Protecting it, I might add, through their right to free speech.

So. Free speech is not only important, it is critical, it is definitive, both to us as humans, and to our country as a free country, with government of the people, by the people, for the people. It is the most important right we have, and it is the best way to delegitimize, remove, and replace the current government, which I think we can say safely does not have our consent any longer to govern us, taking “our” and “us” in the largest collective sense, meaning the majority of people governed by this administration. The government should not only not be infringing on it, the government should be actively protecting and promoting it: that is the government’s job, the reason it exists, and the best way to ensure that the other rights are also maintained. Because free speech leads to the free exchange of ideas and information, to the shining of a light into the darkness where tyranny grows. It’s what lets us all communicate and understand each other, and then agree: and take action.

Before it’s too late.