How healthy is the First Amendment? That is the question explored by the film, “The First: Free Speech at the Crossroads,” shown last week at Rocky Mountain PBS’s Denver center and now available on PBS.
Although the film crisscrosses the United States and involves issues of national importance, it has deep Colorado roots. The Colorado Freedom of Information Coalition helped finance the film. Director Brian Malone is based in Colorado. Bazi Kanani, who, along with Tom Costello, narrates the film and conducts interviews, works for Colorado Public Radio (CPR). And Costello, born and educated in Colorado, once worked at 9News before eventually making his way to NBC.
The film offers important historical context. It discusses how, just a few years after the ratification of the Bill of Rights, Congress passed, and John Adams signed, the Alien and Sedition Acts which, among other things, outlawed “false, scandalous and malicious” criticism of the government—as determined by the government. Later, Lincoln suppressed speech during the Civil War, and, acting with Congress, Woodrow Wilson suppressed antiwar speech during WWI.
A leftward tilt
Today the First Amendment remains under threat, and the main problem, according to the film, is Donald Trump. I think all can agree that Trump has shown complete disdain for the news media. The film even went in for late re-editing to accommodate the preliminary September court ruling forbidding the White House to bar CNN, MS Now, and Politico.
True, the film also discusses how the Biden administration pressured social media companies to purge their streams of wrongspeak regarding the pandemic. But in the film Trump becomes the true menace.
We shouldn’t be surprised that the film takes a standard left-Democratic line. In his previous films, Malone railed against the Citizens United decision (which, incidentally, rejected censorship), attacked school choice, and promoted environmental concerns over oil and gas development.
Don’t get me wrong; I appreciate Malone’s voice, I often agree with him, and I plan to eventually watch all of his films in full. But viewers should be aware that he frames issues from his own point of view.
Conveniently forgetting Colorado
The oddest thing about this Colorado-centric film is that it neglects to mention several recent important Supreme Court cases involving Colorado and the First Amendment. The film interviews a Wyoming librarian who lost her job (an important story, I agree), yet it neglects much more significant cases.
The 2018 Masterpiece Cakeshop case and the 2023 303 Creative case are similar in that state government attempted to compel people working in certain businesses to produce expressions at odds with their religious views. Specifically, a baker and a website developer did not wish to produce expressions supportive of LGBTQ people.
In my view, the business owners were wrong to discriminate, but the Supreme Court was right to recognize that the state may not compel speech.
Earlier this year, in the Chiles decision, the Supreme Court ruled that the state cannot absolutely ban so-called conversion therapy, in which a therapist questions or challenges the assertions of a minor to be gay or transgender.
In practice, conversion therapy often has been abusive, in the past sometimes even physically so. Moreover, the pseudo-religious basis of a lot of conversion therapy stems from bad theology and worse science. Generally, gay and transgender people are so by their natures. Nevertheless, sometimes people can be wrong about such claims, older minors have substantial capacity to consent to talk therapy, and the state should not try to ban such talk. The Supreme Court rightly found that government may not establish official orthodoxy in such matters.
In these cases, the enemies of free speech were state-level legislators and bureaucrats, not Trump. Perhaps that didn’t fit Malone’s preferred narrative.
A confusion about rights
The film does review one religious liberty case, that of public-school football coach Joseph Kennedy of Washington State, decided in 2022. The court’s majority held that on-field prayer led by Kennedy was voluntary and so protected. The minority argued that the religious practices used tax dollars to proselytize and pressure students to participate. So largely the debate was over facts: Were the prayers actually completely voluntary, or did the players feel pressured to participate or reasonably think they’d be penalized for not participating?
The film is non-committal about the correct outcome, and it seems to imply some balancing test is at play. Kanani says, “The majority of justices ruled that his praying publicly was indeed protected by the First Amendment. . . . And the dissenters in this case that the court should not have elevated one person’s right to freedom of religion above the separation of church and state, which is meant to protect religious freedom for all of us.” To that, Costello says, “Yeah, you can see both sides.”
This focus on balancing rights, both by the film and by the courts, obscures the underlying problem: coercive funding of public schools. Education inherently involves ideas, so forcing people to finance education inherently creates clashes of rights. Forcing people to finance education is, by its nature, compelling speech. So long as we accept government-compelled speech, we cannot cleanly resolve all such conflicts of conscience. But hardly anyone wishes to contemplate such fundamentals.
A bit further on, the film badly confuses the case of rainbow-colored crosswalks in Orlando in the aftermath of the Pulse nightclub murders. The film says this is another example of how “the First Amendment is not always as clear cut as you might think. The lesson here is that the First Amendment is always evolving.” Again, the implication is that rights inherently clash and we can never really be sure how to apply the First Amendment in difficult cases. That’s the totally wrong way to look at the issue.
The crucial fact omitted by the film is that the rainbow painting was a city government project on government property. The clash involved different levels of government. (Subsequent clashes also involved private parties redrawing the colors.) The First Amendment restrains government from restricting private speech; it does not authorize, compel, or protect government-sponsored speech.
Again, the tension here arises from the coercive nature of government action. When a city spends tax dollars on an LGBTQ-themed display, it thereby forces people who don’t like that message to nevertheless help finance it. That’s compelled speech.
We get into two additional complications with respect to government property. If government is going to spend tax dollars to promote certain kinds of speech, then, arguably, there are equal-protection grounds for government not to discriminate in favor of some speakers over others. Again, as the Supreme Court found in the Chiles case, government ought not establish an official orthodoxy. So if you want Christian prayers at government events, for example, you also have to tolerate Muslim prayers, Satanic prayers, and so on.
And government necessarily regulates speech on government property. For example, groups need a permit to protest at the state Capitol. You can’t just, say, spray-paint a mural on a government building and call that your free speech.
The conclusion we should draw from these cases is that government action is by its nature coercive, and, whenever government produces or sanctions speech, that involves compelled speech. Hey, man, don’t blame the libertarian messenger.
The film also badly botches the facts in another case. Here’s what the film claims: “Donald Trump had been posting falsehoods about losing the election in 2020, claiming it was stolen from him. Again, the Biden administration stepped in to pressure social media companies over Trump’s posts. Twitter, Facebook, and Instagram all banned Trump. Trump sued and won and was eventually reinstated on all of those platforms.”
That’s wildly wrong. The platforms in question initially banned Trump while he was still president, before Biden assumed office. So the film’s claims that Biden prompted the bans are bogus.
More importantly, courts never found that private platforms banning a user violates the user’s free-speech rights, for the obvious reason that the First Amendment restrains government, not private platforms. True, Trump sued the companies, and, like cowards, they paid up (and reinstated him), but that hardly proves the companies somehow violated Trump’s rights.
If the First Amendment has any meaning at all, it certainly cannot be used to justify compelling private parties to provide a platform for others’ speech. As Ayn Rand put the point, “Freedom of speech includes the freedom not to agree, not to listen and not to support one’s own antagonists.”
Some further reading
I think the Objectivists best get to the fundamental principles of free speech. Specifically, I recommend Greg Salmieri’s essay and Tara Smith’s book.
I genuinely enjoyed Malone’s film, and I encourage everyone to watch it. Then I encourage viewers to think more deeply about the meaning and implications of the First Amendment.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
