I’ve been trying to think through what would change if the First Amendment were as untouchable as the Second. I’m sure this is an incomplete list, but here are a few ideas that come to mind:
- Child pornography would be legal. It might still be illegal to make it because of the horrific child abuse it would entail. But sell, distribute or possess it? No problem.
- Obscenity in general would be legal. This is a very slippery concept, and in fact it is difficult to know exactly what would be considered obscene circa 2017. But depictions of bestiality or rape would be fine. As with child pornography, it’s possible that someone could be prosecuted for the underlying acts, but not for selling, distributing or possessing it.
- Libel would cease to exist. Want to publish something false and defamatory about someone? Go for it. And don’t worry about whether she’s a private figure. That distinction is so 20th-century.
- If the United States is at war, and you somehow come into possession of plans detailing the specifics of an operation against enemy troops, well, go ahead and publish them. Under our new, absolutist First Amendment, Col. Robert McCormick did nothing wrong.
- If you’re, say, a Ku Klux Klan leader, and you exhort a mob to lynch a black man standing at the periphery of the crowd, and they do it, you have nothing to worry about. The criminals who actually carry out the deed could be prosecuted for murder, of course, but under an absolutist view of the First Amendment there would be no such thing as incitement.
No rational person, of course, would support any of these changes to the First Amendment. Even someone who considers himself pretty much an absolutist, as I do, has to acknowledge that not every single form of expression can be protected by the Constitution. So why can’t extreme gun-rights advocates see that they’ve abandoned all rationality?