Civility And The First Amendment

How many times have we heard someone defend a racist, belittling or otherwise nasty tweet or Facebook post by claiming that critics were attacking his or her  “First Amendment rights”?

The First Amendment may protect that person’s right to spew vitriol against government censorship, but it also protects the speaker’s critics–including, for that matter, decisions to fire the speaker from a private-sector position. Beyond that widespread misunderstanding of just what it is that Freedom of Speech protects, however, is a lack of appreciation of the important role of civility in America’s marketplace of ideas.

I recently participated in a “civility training” for Women4Change Indiana, and dug out a brief introduction to the topic that I had delivered a couple of years ago. Given how very un-civil American discourse has become, I thought it might be timely to share.

Twenty-five years ago, when I was Executive Director of Indiana’s ACLU,  I mounted a campaign to promote civility and a more civil discourse. Several members let me know that they were upset, because they were convinced that an emphasis on civility somehow undermined, or was evidence of less than robust support for, Free Speech.

That misunderstanding is evidently shared by the Neo-Nazis who marched in Charlottesville, the creators of racist, homophobic and anti-Semitic websites, and participants in proliferating Facebook confrontations and Twitter wars. They defend vitriol as “Free Speech;” and disparage and dismiss civility as “political correctness.”

They couldn’t be more wrong.

This nation’s Founders understood that all ideas, no matter how noxious, should be available for discussion.They didn’t protect speech because they underestimated the danger bad ideas could pose; they knew how powerful –and dangerous–words and ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—to decide what sort of speech should be permitted– was far more dangerous.

But that’s where civility comes in. If free speech is to achieve its purpose—if it is meant to facilitate a process in which citizens consider and vet all ideas, consider all perspectives—we need to listen to each other. Insults, labeling, dismissing, racial “dog whistles”—all those hallmarks of incivility—make it impossible to have the kinds of genuine conversations and productive disagreements that the First Amendment is intended to foster.

Screaming invective across political or religious divides actually undermines the purpose of the First Amendment’s Free Speech provisions. Is such speech protected? Absolutely. Is it useful? Absolutely not.

There are multiple reasons for the recent rise in incivility, but the anonymity and distance afforded by the internet and social media is clearly an important contributor. As many of you know, I have a daily blog, and I’ve found it necessary to impose standards of conduct for commenters. Civil disagreements are encouraged; ad hominem attacks, personal nastiness and unrepentant bigotry are not welcome and will not be tolerated– not just because they are unpleasant and hurtful, but because people engaging in those behaviors derail the substantive and instructive disagreements that people with different perspectives need to explore if we are going to live and work together.

Responding to a Facebook argument or Twitter blast with an insult may make you feel better, but it doesn’t advance the conversation, and it certainly doesn’t count as participation in the marketplace of ideas.


  1. “Screaming invective across political or religious divides actually undermines the purpose of the First Amendment’s Free Speech provisions. Is such speech protected? Absolutely. Is it useful? Absolutely not.”

    An excellent example of the uselessness of “screaming invectives” was evidenced in Portland, Oregon this past weekend. The Antifas (the worst of the best) and the Proud Boys (the worst of the worst) showed up in small numbers to wave weapons and rant at one another accomplishing nothing but a pitiful example of Trump’s example of mindless rants and endless Tweets. Fortunately; only one person was reported injured in this “protest” which accomplished nothing for either side.

    Look to Hong Kong for an example of peaceful protest and unity, speaking out to demand democracy; in its ELEVENTH WEEK the many thousands in pouring rain, many carrying American flags, seeking freedom from the tyranny of China’s ruling party. Here in this country we started protesting by the many thousands; using our freedom of speech to let the world know we do not support Trump’s, at that time unnamed, White Nationalism. Has our freedom of speech been drowned out by the gunfire of the mass shootings or have we weakened under the onslaught of Trump’s approval of racism and bigotry?

    “Responding to a Facebook argument or Twitter blast with an insult may make you feel better, but it doesn’t advance the conversation, and it certainly doesn’t count as participation in the marketplace of ideas.”

    Please speak out loud and clear by voting in the 2019 November elections!!!

  2. I have a preference for the use of satire to get my point across. Sadly, we live in a time where satire has to be labeled as such so that readers don’t go running for the fire hoses to put out the imaginary fire.

  3. Irresponsible people who do not think past their own, self-serving skin will eventually abuse every right and every shred of decency bestowed upon them by our founders. They default to their most primitive instincts of tribalism and stop their intellectual pursuits and understanding of the fabric of society at that point.

    As with Donald Trump, the concept of consequences of actions stops with their skins. The MOST insecure people inside that skin are the MOST likely to stop thinking the soonest.

  4. The right-wing has continually mistaken civility for weakness with an increasing loss of respect for anyone else’s position. We have seen they, like most bullies, crumple when confronted directly. At this point, until they learn their mistake, I think we need to be less civil and more direct in our criticism of right-wing positions.

  5. “Never respond to an angry person with a fiery comeback, even if he deserves it…Don’t allow his anger to become your anger.”
    ― Bohdi Sanders, Warrior Wisdom: Ageless Wisdom for the Modern Warrior

    “Holding onto anger is like drinking poison and expecting the other person to die.”

    “When you wake up in the morning, tell yourself: the people I deal with today will be meddling, ungrateful, arrogant, dishonest, jealous and surly. They are like this because they can’t tell good from evil. ” ― Marcus Aurelius, Meditations

    So what do you accomplish when you allow disagreements to develop into anger to dominate your thoughts, words and actions.

  6. I must admit in keeping with the relatively new coarseness of language ushered in by Trump that I am personally guilty of what in another time (and perhaps even today) would qualify as insults, most of which are aimed at Trump, Mitch, King and other such greedy animals. Now see, there I go again with my animal talk (and I thought of far more insulting language but didn’t use it). It just seems that writing or saying these guys are not nice doesn’t get it, so aside from constitutional interpretation and forefather intent I for one am going to have trouble in getting to the crux of present day issues in the civil fashion suggested by Sheila today.

    She is right about sitting down with one’s political opponents and having a civil discussion in re the issues, but I have big trouble in being civil to the likes of White Nationalists, King, Trump, Mitch et al, and I suppose from their point of view they have big trouble in being civil to me. I hope to have grounds for self-reformation on January 21, 2021. Meanwhile, if any of my fellow contributors know of any political therapists around, I would appreciate a reference. Perhaps, somehow, I can be nice and more effective at the same time. Perhaps.

  7. I’m fascinated with the recent Tweeted warning by Trump regarding ANTIFA. He says he’s considering putting them on the list of terrorists.

    Think about that for a moment and how it relates to the 1st Amendment and what it means to protest Fascism. You’d be treated like a terrorist. Just like the new brand of “eco-terrorists” who place the environment ahead of corporate greed and degradation of the planet which is screaming out against us.

    The white supremacists have plenty of support in the WH but protest his brand of government and you’re labeled a terrorist.

    Is this the new way around the 1st Amendment which is protected? Instead, call them a terrorist and jail them for 20 years to ensure nobody participates in a rally against our Fascist government.

    Isn’t this proving the point that we are already a Fascist government. China is there already and so is India – the trilogy of our global capitalism experiment. All three have imploded into Fascism.

    I guess Marx was right.

  8. Monotonous; “Who knows what evil lurks in the hearts of men? The Shadow knows.” Opening words to a years ago popular radio program. Trump has used his freedom of speech with poorly spoken and badly written words to bring that evil out of the shadows. It goes far beyond disagreements or anger dominating our thoughts, words and actions; we are in a struggle for survival, not of the fittest but of democracy, Rule of Law, upholding the Constitution, we are struggling to save this nation from oblivion or total nuclear destruction due to one man’s abuse of freedom of speech. His freedom of speech is turning our allies further and further from continuing support and trust. A man whose mental decline we watch day after day; we no longer ask ourselves or one another “what can he possibly do next that is worse”? We simply wait to see what it is. And it always comes.

    Contrary to your Marcus Aurelius quote; he and all of his supporters can tell good from evil, they choose evil because it pays better.

  9. All, as usual, interesting discussion this time about interesting discussions. They are as Sheila posits the means by which knowledge is elevated and spread.

    What does all of this interesting discussion say about the conduct of the current Presidential election and the most productive strategic design for it by the DNC?

  10. “What if” the non-left, non-right American people (certainly the majority) followed the example of Hong Kong and had mass, peaceful demonstrations leading up the 2020 election urging people to vote and to return some civility and caring to this country? Every weekend….

  11. LL, I think that like those in Hong Kong such demonstrations would be effective and likely to be met by some Fascist interference and government overreaction. Definitely a statement though to the rest of the world that we are still alive and a majority and passionate about freedom.

  12. Whoa!
    Not so fast; not so presumptive; not so accepting of mere aphorisms……………

    “Never respond to an angry person with a fiery comeback, even if he deserves it…Don’t allow his anger to become your anger.” (???????????????)
    ― Bohdi Sanders, Warrior Wisdom: Ageless Wisdom for the Modern Warrior

    Some possible flaws in this supposed truism:

    1. The first person may not be angry at all; he or she quite coolly may have chosen to use a verbal image/description that seems to have the “fiery” power to crush an opposing idea.

    2. The fiery comeback may not be fiery at all; it may seem fiery because of its effectiveness, and its effectiveness is likely the outcome of careful thought. Some would allege that “You are no John Kennedy” was a fiery comeback.

    3. My anger may not be my anger at all; my anger may be that which steels me to be cool enough to formulate the verbal coup d’ grace to an opponent’s (or a dumb-ass’s) dangerous idea.

    I guess many of us presume that anger automatically means loss of control, while some of us think anger is an emotion (neutral, more or less) to be either controlled or lost control of.

  13. Show me a let’s-sit-down-and-talk-this-out character and I’ll show you a dude who is often going to sit down because someone knocked him or her down.

    The person who is the well-rounded negotiator is too much like the person with a well-rounded education — they both can be pushed in any direction.

    And here’s the coup d’ grace to the “sit-down-and-talk” idea–Donald Trump.

    Good luck to all the sit-down-and-talk characters; he’s all yours; sit down and talk something out with the likes of Donald Trump…(cue laughs)

    The most ridiculous thing about that proposition is: even if you allow Trump to hammer you into a deal, Trump will change the deal before you wake up the next day.

    So, what’s the alternative to sitting down and fighting fair? Stand up and fight dirty. Or get out of the way.

  14. As an aside, I have noticed more and more trolls when someone comes back at me for a comment I’ve made or some posting I have put out on FB. It is almost always someone who either retorts with misinformation (lies) or resorts to an ad hominem response.

    I wish there was a way to label such responses for others to see that was easier than going to the profile of the commentator and then trying to go back to the original post. Maybe I am just not savvy enough to do that easily.

    Civility can be achieved with a discussion of issue in a reasoned manner as I have seen over and over again in the bi-partisan town halls conducted by Sen. John Ruckelshaus (R), Rep. Carey Hamilton (D), Rep. Ed Delany (R) and occasionally Sen. J.D. Ford (D). They have been holding these town halls for a couple of years now, when the General Assembly is in session. It is, as far as I know, the only town hall of its kind in the state. There have been guests (retired Indiana Supreme Court Justice, Judge Ted Boehm, was one). These meetings are held at St. Luke’s Methodist and is well attended.

    We can only hope that there will be more of these kinds of gatherings. Unfortunately, neither of our Congressional Senators or our current Congresswoman are interested in facing the questions and concerns of their constituents. Photo ops and tightly controlled, timed, meet ups (most often with staff, not the officeholder) are the only option offered by them.

  15. Let me question the liberal dependence on the established authority as a sign of victory in the culture wars. I have in mind Brown v Board from the 1950’s, which as a young man I thought was a victory over bigotry and racism. Yet here we are sixty plus years later and schools in our country are more segregated than they ever were. We should be smarter than that. It was a great legal victory, but the people looked around and said, “we don’t want to change.”

    I have to conclude that the imposition from on high, from either the right or the left, is not going to be accepted without and lot of work and effort. McConnell’s judges are now questioning the validity of the original decision and his senate is confirming them. Civic discourse is missing. The discussion of real issues is missing.

    I believe that integration and diversity make us stronger. That premise will not be imposed from on high or accepted, it must be arrived at with civic discourse and respect.

  16. Having a “civil” discourse with the likes of Neo-Nazis or White Supremacists would be like trying to teach a pig to sing — it frustrates you and annoys the pig. It’s like talking to the folks who belong to the Flat Earth Society — they are just beyond reason. I have no interest in wasting my time with people who have chosen a completely unreasonable ideology and trying to get them to understand logic. They’ll just have to find their own way out of the dark, if that’s possible. In the mean time, I want to find my own blind spots and foibles since I am willing to learn.

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