Is Our First Amendment Doing Us In?

Is our much-vaunted First Amendment—the holiest of holies of our democracy—a prime cause of our now self-evident political and social collapse? Could it be among the most important causes?

Let’s start with the basics. As our grapefruit-sized brains try to comprehend the unfathomable vastness of the Universe in which we live, we have no hope but to resort to abstractions. The languages that we all use to think are little more than a collection of abstractions. The word “chair,” for example, includes a vast variety of objects, from a folding chair, to the throne of Thailand (which still has a king), to the electric chair, which is not really for sitting.

No surprisingly, rules based on abstractions invariably get things wrong. Take the most basic law of classical physics, for example: Sir Isaac Newton’s formula F=ma. In words, his formula declares that “the force applied to an object causes it to accelerate by an amount equal to that force divided by its mass.” That formula works fine in a vacuum, or, for most objects, even in air. But put the object of interest in sludge, and the equation changes. Even a feather doesn’t fall under gravity the same way in air as in a vacuum.

The moral of this tale from first-year physics is that all abstract principles capable of comprehension by the human mind are incomplete. Find the right circumstances, and all can be misleading or flat wrong. They produce correct results only when modified by reasoning from cause to effect. Every good rule has right and proper exceptions, which only cause-and-effect reasoning can reveal. Syllogisms and top-down abstract reasoning are useless.

Our First Amendment is no exception. On its face, it conflicts with the much older Ninth Commandment, “Thou shalt not bear false witness against thy neighbor.” Does not the First Amendment, by its terms, appear to preclude laws against perjury? But don’t we nevertheless have them? So the First Amendment already has exceptions, at least implicit ones. Any similarly broad abstract principle must, just to thrive in the real world.

But what about political lying? What about deliberately deluding voters for political power and financial gain? What about widely promoting the lies that Trump won the 2020 election, or that innocent Black refugees from gang-warefare-torn Haiti, who were deliriously happy just to be here and safe, had been killing and eating white people’s pets in Springfield, Ohio. Shouldn’t those lies be treated like perjury in the courtroom?

According to free-market theory, no. The libertarian theory that now substitutes for thinking in most law schools and business circles says “no.” According to that theory, when lies and truth meet in the “free marketplace of ideas,” truth will prevail because it is truer and therefore better.

Eventually, the collective wisdom goes, truth will prevail, just because.

Leave aside that this reasoning is about as circular as it can get. Leave aside its resemblance to the “best of all possible worlds” theory among the French aristocracy that led to the French Revolution, perhaps the bloodiest in history. Leave aside that no one, to my knowledge, has ever made, or even proposed, a set of experiments or trials to test this theory, despite its apparent “testability” in a society saturated with polling and similar sociopolitical inquiries.

Like the a priori reasoning of Archimedes and other ancient Greeks, it’s nearly universally accepted because it just “seems” right. It’s much like Alan Greenspan’s insistence that free markets self-correct, which was also nearly universally accepted until the Crash of 2008 dismally proved him wrong and he publicly recanted before Congress.

Our 2024 election—perhaps the biggest, most accurate and most closely watched survey ever made in America—suggests that a plurality, if not a majority, of Americans believed the lies told by Trump and the Republicans. And they believed them because a vast array of powerful people and enormous corporations pushed them relentlessly as truth, or at least as plausibly true. Or they just had interviewees repeat them endlessly, without critical comment, until all but their most aware and critical viewers believed them.

I don’t have to name these corporations. They include such behemoths as Fox, Sinclair, Breitbart, Truth Social, and X (formerly twitter). Some endorsed the lies directly. Others presented them so repeatedly and continuously in words and clips of the lies’ promulgators as to appear to endorse them as truth without actually doing so. And so a vast swath of the American electorate remains, even today, in doubt as to who actually won the 2024 presidential election.

No government in history ever enjoyed such a massive, pervasive and effective propaganda machine. Not Hitler’s Third Reich. Not Stalin’s brutal Soviet dictatorship, with all its gulags. Not Mao during his disastrous Cultural Revolution. Not even Xi Jinping today, with all his sophisticated legal and practical control of China’s Internet, which apparently gave him the ability to make the brutal Tien-An-Men Square Massacre in 1989 disappear from Chinese history.

Our own right-wing propaganda machine was and is far more effective because it’s pervasive, dispersed, mostly privately run, privately capitalized, and motivated by private greed, pushing relentlessly for lower taxes, less regulation of business, and “less government” in general. And unlike Josef Goebbels’ Nazi propaganda, which was designed to be “high brow,” our private American propaganda machine targets precisely the intelligence, insecurities, prejudices, knowledge (or ignorance) and attention span of the ordinary, working-class American voter. In this respect, it is infinitely more effective than even China’s centralized, top-down propaganda. Just ask Rupert Murdoch, or look at his balance sheet.

There’s never been anything in history quite like having sophisticated and well-financed private businesses promote propaganda enthusiastically because doing so lines their pockets. Fox is Exhibit A.

Our First Amendment might have let our society and polity survive if its protection had been limited to individual “speakers,” as our Founders apparently intended. But it wasn’t. Long before the coup de grace of Citizens United, which gave corporations human rights under the First Amendment, the Supreme Court decided that corporations are “persons” within the meaning of our Bill of Rights.

I don’t recall the exact decision that took this crucially disastrous step. But I vividly recall reading it, in the late seventies, while in Harvard Law School.

I was sitting in one of those plush, comfy, regal-style armchairs, now long gone, in Harvard’s Langdell Law Library. I put the casebook down in astonishment, as the cause-and-effect implications flooded my brain.

Corporations, after all, are mere legal abstractions. They exist only in our minds and on paper. In reality, they are nothing more than collections of individuals, materials, equipment and financial assets (yet more abstractions), mostly run in a top-down power hierarchy bearing little resemblance to democracy. Yet there was our Supreme Court, in its infinite legal wisdom and utterly oblivious to practical cause and effect, giving these abstractions (really, their owners) the same legal rights as the individuals who fought our War of Independence from England to be free.

I sat motionless in that chair, with the casebook on my knees, for about 15 minutes. I was thinking of all that decision’s practical, foreseeable effects. I imagined how it would make corporate owners and managers more equal than others, much like Soviet commissars in the then-powerful Soviet Union. I recalled Orwell’s brilliant satire Animal Farm, in which all denizens were considered equal but “some [were] more equal than others.”

Nothing in our erratic but mostly steady march toward oligarchy since then has surprised me. That simple step of treating as people legal abstractions created, governed, owned and managed by the wealthiest and most powerful individuals, and giving the abstractions all the human rights that our Founders fought for, set us firmly on our current path to corporate oligarchy. Elon Musk and his chain saw aimed at government—and with it the basic research on vaccines and space science that government mostly funds—were foreseeable consequences of this fatal error.

With our High Court’s failure to consider, let alone foresee, the effects of this massive change in emphasis from the individual human being (as the center and focus of our democracy) to the financial/industrial/commercial group, the die was cast. Citizens United and our dramatic turn toward oligarchy followed as night the day.

This is one reason why I rarely, if ever, read the musings of anomalously respected right-wing pundit George Will. A product of the Ivy League with an erudite, quasi-academic writing style, he has gained a reputation as a conservative “intellectual.” But I have never once read (or seen a summary of) any of his writing in which cause-and-effect reasoning plays a major role. Those of his writings that I have read always reason from the top down, from abstract “principles” of freedom of business, freedom for capital, free trade and minimal regulation, to conclusions derived entirely in the abstract. Anyone who thinks George Will is a match for Xi Jinping in building a government or society that works is sorely misguided.

But I digress. Our First Amendment, as interpreted and applied by our courts, will be high on the list, on our American Empire’s gravestone, of causes of its decline and fall. That sad fate is now proceeding at Trump’s trademark “Warp Speed” as compared to Rome’s. By giving the richest and most powerful among us by far the biggest megaphones with little or no restraint on their use, it is creating an aristocracy of information to rival the old English one of land, against which our Founders rebelled.

Not only that. Our current constitutional system now allows anyone on the planet—including vast cadres of highly organized foreign spooks, conspiracy theorists and “influencers” motivated by their fifteen minutes of fame—to propagandize our people with all the social and electronic instruments of modern advertising and PR.

In refusing to allow anyone in authority to stop the distribution of lies and falsehoods, it has given us a president who had, by the Washington Post’s careful tally, promulgated 30,573 lies and misleading statements in his first term. (The Post has not continued the tally for his second term, perhaps because its now owner, Amazon’s Jeff Bezos, is its new owner and enjoying all the fruits of his membership in our New Oligarchy.)

Don’t get me wrong. I’m hardly an enemy of freedom, let alone free speech. But there is such a thing as truth. And it is clear as crystal to me—once a delirious fan of the Internet as a tool of universal education and enlightenment—that it has, in effect, become an instrument of promotion, marketing, lies and conspiracy theories used by the wealthy and the unscrupulous, in what they perceive to be in their own personal interest, to delude millions into believing what simply isn’t so.

Nor am I an enemy of corporations per se. I have written [search in linked post for “vital one”] that they are responsible for producing nearly all of the products and services that make us “civilized” and provide our creature comforts. I have even speculated that they might, some time soon, replace government itself, just as modern governments ultimately replaced the Church as a practical and conceptual locus of real power in the Second Millennium.

But when the most powerful and ubiquitous institutions in our society have an incentive to lie—or to promote others’ lies as truth—the cause-and-effect consequences are clear. You get a supreme leader like Donald Trump and, eventually, a failed state.

This problem is not easy to solve. We certainly cannot solve it by ignoring it, or by hoping that letting the rich, powerful and unscrupulous continue to delude millions worldwide will somehow work out in the end and produce the “best of all possible worlds.”

In this environment China will certainly win. It will win not just because it has caused our oligarchs to transfer our best technology and most of our factories to its mainland. It will win not just because it has four times our population and, at present, a far more disciplined, increasingly better educated and orderly culture. It will win, in the end, because China’s control of information on the Internet will help China’s people, all 1.4 billion of them, distinguish truth from lies and focus on what matters. (The only exceptions will be lies and concealments—for example, of the Tien-an-Men Massacre—that are “non-critical” in the sense that they do not substantially erode social or technological progress.)

In this respect, China’s top-down but smart and flexible government may have an evolutionary advantage. With rare exceptions (like its failed “Zero Covid” policy), China’s leaders don’t have to convince their people of the rightness of their policies. They just have to give the orders. Thus, their incentive to lie is far weaker than that in the US, where leaders increasingly trained in all the dark arts of advertising and PR seek to manipulate public opinion in order to sway elections and achieve their goals, or the goals of the oligarchs and businesses that finance them.

Is it therefore any wonder that, in a society increasingly dominated by large corporations and the wealthy, lies proliferate and seem to know no bounds? In the US, the sole restraint on society-scale lying once was the law of defamation, inherited from the Brits. But, as I have explained in several posts (see this one and this more technical one), Section 230 of the so-called “Communications Decency Act” of 1996 practically did away with the law of defamation on the Internet, the most powerful and ubiquitous means of communication that our species has yet developed. In contrast, China has (wisely in my view) made great strides in limiting the scope of what it views as pernicious lies on the Internet, at least within its borders.

It took Rome 4.5 centuries to fall, measured from the death of its own great demagogue, Julius Caesar, to the sacking of the “Eternal City” by the Huns. It looks as if it will take us about one-tenth that time to collapse, measured from the second ascension of Donald Trump to the presidency to our next generation.

An organism that cannot perceive reality cannot survive. Just so, a democracy half of whose people believe lies, conspiracy theories and false propaganda cannot survive as such. It can survive only as an oligarchy or a tyranny. So our transformation to one or the other is now well under way.

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