Politicizing Tragedies, and the Sins of the First Amendment

I began thinking about this post on Yom Kippur, the day when Jews ruminate on their sins.

This week, students affiliated with the College of William & Mary’s Black Lives Matter movement shut down a speaking event featuring an alumna from the American Civil Liberties Union.  The ACLU speaker had come to discuss “Students and the First Amendment.”  I do not support the tactic of hijacking a speaking event for one’s own purposes, even for a good cause.  A coordinated effort to shout down a scheduled speaker is not protected First Amendment activity.  Nor do I agree with the protesters’ sentiment that “liberalism is white supremacy.”  The protection of hate speech is a critical component of maintaining robust, viewpoint-neutral speech protections, and liberalism has likely promoted civil rights better than any other system of political thought.

However, the activists who refused to even let students interact with the ACLU’s Claire Gastañaga highlight an important point with which I have been reckoning: the First Amendment is process-based and somewhat justice-neutral.  The First Amendment provides a methodology – open exchange of ideas – for attaining truth and reaching the best results, but must remain fairly agnostic about what those results are.   My own views about the First Amendment, and my exaltation of open, dispassionate dialog as a way of reaching enlightenment, often lead to political paralysis or a ceding of political responsibility to others.  Strong belief in a values-neutral process like free speech can lead to political disengagement.   The aftermath of the heartbreaking events in Las Vegas provide a useful lens for my reckoning with the sins of the First Amendment.


After 59 people were murdered, and hundreds injured, at an outdoor country music festival, our country mourned.  Many expressed their views on related topics, such as how to prevent recurring tragedies and how the media treats white murderers who are unaffiliated with terrorist organizations.  My bias is in favor of not immediately politicizing tragedies, which I would define as using the tragedy to advocate for broader political or social change that one already believed in prior to the tragedy.  This immediate soapboxing desecrates the sanctity of the moment and appears opportunistic.  Further, sane, sensible policy is not usually produced in moments of high emotion, even if those moments, sadly, continue to recur.  That said, our country cannot ignore the increasing number of mass shootings.  At the very least, we need to responsibly grapple with this problem and possible solutions, even if we determine that some potential cures are worse than the disease.

This is where my own First Amendment inclinations, and my preference for the airing of all views, work against political change.  As a professor, I endeavor to give my students the critical thinking skills and desire to form their own opinions on issues.  This, I believe, is the true purpose of the teacher.  I have also focused on my area of expertise – creating the most coherent and constitutionally faithful, most logically and philosophically justifiable First Amendment rights —  so that others can debate the issues of the day.  In this way, I place the burden of political decision-making onto others.

My somewhat libertarian impulses augment this disengagement problem.  Government action that harms people, to my sensibilities, is worse than government inaction that leads to harm.  This approach underlies some of our greatest civil liberties, including our free speech rights and strong protections for criminal defendants against the powerful state.  Better to risk setting a guilty person free, even if she may potentially harm others, than to imprison an innocent.  The comparisons between gun laws and affordable health care are inapt, because gun laws involve government prohibitions, and health care laws involve government subsidies.

Further, politics alienates me.  Many political expressions I encounter, and the views of almost all politicians, seem simplistic and misleading.  Every policy, every government action, has winners and losers, yet so few acknowledge the weaknesses in their own positions or the negative consequences of the opinions and policies they endorse.  I have become so repelled by the lack of moderation in others’ views that I have stopped trusting others, a necessary component to forming political opinions on subjects where I am not an expert.

The opposite problem also exists.  On the issue of gun control, I find voices from both sides persuasive.  The Second Amendment is written differently than the First Amendment; our Second Amendment is written in consequentialist terms, to benefit “a free State,” that are far less absolute than the First Amendment’s language.  Reasonable gun restrictions are permissible under the Second Amendment, and we should try harder to implement them.  Yet, background checks would not have prevented Stephen Paddock; fully automatic weapons are already tightly restricted in this country; and most gun murders are executed using ordinary handguns.  Prohibition teaches us that once an item is easily made and distributed, making it illegal encourages a black market for that item.  I am not a gun expert, nor an expert in crime policy, and I feel ill equipped to form conclusions about an important safety issue with some constitutional dimensions.

But, the legal realists are correct that the government sets the defaults within which private actors can behave.  The critical legal scholars are correct that neutrality favors the status quo.  And, even the greatest libertarian thinkers, like Robert Nozick, believed the government had a role to play in preventing force and fraud, thus carving a sphere of positive liberty within which private individuals can act.

People are suffering, and the world is not perfect.  Even if all policy choices harm someone, and even when certain policies styled as moral seem immoral to me, I should do the work myself to figure out what approach is best, fairest, most sensible for our society.   I cannot study everything, but I also cannot use my disdain for our political culture and my distrust of government to retreat into my own areas of study and expertise.

We must all find the right balance.  On one side, we must listen to others, and encourage open-minded dialog, which generally is stifled by those with strident views on a topic.  But we also must form opinions on issues so that action can be taken, both politically and in our personal lives.  We must try to understand each other, but we cannot forget who we are ourselves.  As for gun control legislation, I hope we come to a solution that respects the Second Amendment rights we do have while acknowledging our horrifying mass murder problem.

Perhaps what we need is a better political process, one that recognizes how political lobbying and partisan clannishness skew debates, but does not restrict the expression of either pundits or those who engage in political speech through documentaries, the subject of Citizens United v. Federal Election Commission.  I am always happy to advocate for better processes, but someone will need to show us results.


“You shall love the stranger as yourself, because you were strangers yourselves one time in the land of Egypt.”