Theorizing the first amendment: From Roger Williams to Larry Flynt

• Pages: 91-110
• DOI: https://doi.org/10.1108/S1059-4337(2010)0000053007
• Published date: 31 December 2010
• Date: 31 December 2010
• Author: H.N. Hirsch

THEORIZING THE FIRST

AMENDMENT: FROM ROGER

WILLIAMS TO LARRY FLYNT

H. N. Hirsch

ABSTRACT

This chapter argues that the theoretical core of the First Amendment can

be found in the concept of disestablishment, and that the meaning of

disestablishment can be, and has been, extended from the religious sphere

to the secular. It explores the historical development of rights of

conscience and dissent, and the application of those rights to various

changing historical circumstances, such as the development of political

parties and the struggle over slavery. It then turns to an application of this

analysis to several contemporary First Amendment controversies,

including campaign finance and sexual expression.

Stanley Fish, twentieth century polymath extraordinaire, has opined that

‘‘there is no such thing as free speech,’’ by which he means that we do not

really know how to define or think clearly about the concept. He discusses

‘‘the manifest incoherence and absurdity of current First Amendment

doctrine[,] which regulates in the name of nonregulation, draws bright lines

no one can clearly see, and recognizes so many exceptions to its rules that it

Studies in Law, Politics, and Society, Volume 53, 91–110

Copyright r2010 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2010)0000053007

91

is finally as ad hoc and haphazard as the world it fails to order’’ (2002,

pp. 200–201).

Is Fish right? Do we not know what we mean by ‘‘free speech’’? Is there

no organizing principle that can guide First Amendment jurisprudence?

Professor Fish is wrong. There is an overarching First Amendment

principle, and that principle is disestablishment – a concept that can be

extended from its religious origins to encompass a wide range of First

Amendment issues, and that can be used to organize our thinking about new

issues as they arise.

1

To demonstrate the utility of the idea of disestablishment as an

overarching First Amendment principle, consider first the following thought

experiment.

A long-lost childhood friend dies and leaves you $3 billion, along with a

cryptic note, saying, ‘‘I trust you to use the money well. Do some good

things.’’

After taking out $100 million on which you and your descendants can

prosper, you consider a range of alternatives. You could, of course, give the

remaining $2.9 billion to your alma mater, making it one of the richest

schools in the country. You could start a foundation, such as the

Rockefeller Foundation. You could divide the money among hospitals and

charities. All of these would be among the typical choices of the very rich.

Or. The money comes to you in the summer of 2008, and you decide to

use the money to help elect Barack Obama president. You are an early and

ardent Obamaniac; you think of him as a secular Messiah. You fervently

believe the fate of the nation and indeed the survival of the world depends

on defeating John McCain (and his bible-quoting running mate) and

electing the tall, lanky Senator from Illinois. Not knowing much about

campaign finance laws, you initially think you can use every penny of the

$2.9 billion to help elect Senator Obama.

Now consider what you do with the $100 million you have carved out for

your family. You have a son who is 16 and a daughter who is 20. You give

each of them $3 million, telling them ‘‘pursue your dream.’’

Your son then promptly announces that he’s gay, and that he’s going to

give most of his share of the money to groups that offer support to gay

teenagers and people with HIV. And your daughter, who has always been a

bit artistic, announces she’s going to Las Vegas to become a nude dancer

because, she says, only nude dancing will allow her fully to express her

artistic vision.

So, your long-lost friend’s money would here end up financing a political

preference, a sexual orientation, and a form of erotic art.

H. N. HIRSCH92