I’ve been thinking a great deal about the First Amendment. I tend to go through periods where the subject occupies my mind, but it feels especially urgent now. Understanding the principle of free speech is essential to grasping the broader idea of a free and open society. A society that protects freedom of conscience, speech, and publication is one that remains free and open. That’s why it’s so important to consider all the ways speech can be curtailed. My recent work has focused on laying out a principled argument for what constitutes free speech and what, if anything, can justify restricting it in the context of the Jimmy Kimmel scandal. (See Progressives Flipping Like Flags on a Pole: The Cancellation of Jimmy Kimmel and the Real Threat to Free Speech; Ted Cruz Compares the FCC to the Mob—But Who’s the Real Mob? Jimmy Kimmel’s Return and the Persistence of Late Night Talk Shows; Kimmel’s Return and the Specter of Fascism.)
One of the more striking experiences of my life was being the target of a petition circulated at my university, not even two years ago, and the Kimmel controversy caused me to consider a paradox. The purpose of the petition was to collect signatures from those seeking my dismissal from employment. To be sure, the right to petition the government is enshrined in the First Amendment. But invoking the petition clause to suppress the conscience clause of the very same amendment turns the amendment against itself. This approach exploits one part of the amendment to undermine its spirit.
Imagine, for instance, using the petition process to demand the government repeal the First Amendment—a move that would also eliminate the right to petition for redress of grievances. Such a tactic would clearly weaponize the amendment for authoritarian ends and expose the petitioners’ hostility to freedom—and future petitioning. Petitions of this kind should be dismissed out of hand for their clear authoritarian intent.
We should recognize such efforts for what they are: attempts to dress authoritarianism in the trappings of constitutional process. The framers of the Constitution never intended to grant within our founding document the right to abolish the document itself. To be sure, they provided a process for amending the Constitution, but the Constitution remains the Republic’s foundational law. No reasonable architect of a government would intentionally design its own destruction.
I recognize that the Declaration of Independence presumes the right to overthrow a government, but the right to rebellion comes with specific conditions that justify such an action. It begins by establishing what good government does, namely, defending the unalienable rights of its citizens. It is whenever any form of government becomes destructive of these ends that the people can exercise their right to alter or abolish it, and the new government that replaces it must effect those unalienable rights.
That is why it is crucial to consider the intent behind any petition. If the aim is to demand that the government uphold free speech rights—acknowledging that public institutions cannot suppress speech except on very narrow grounds, such as incitement to violence—or to prevent groups and individuals from using harassment, intimidation, or violence to suppress or compel speech, then the intent is good. By contrast, if the aim is to pressure government into suppressing speech arbitrarily, or to enable groups and individuals to coerce, harass, or intimidate others into silence, then the intent is malevolent, and we should name it as such.
It would be a welcome and necessary step for government bodies and public institutions—bound by the doctrine of incorporation to uphold the First Amendment—to state plainly that the First Amendment cannot be used as a tool to suppress the speech of professors or students. Even stronger would be an acknowledgment that such misuse of the amendment amounts to harassment, intimidation, and attempted coercion in its own right.
freedom and reason 