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The Constitution of the United States of America is a foundational document.The Constitution outlines a form of government and processes to ensure democracy. At the same time that the Constitution was ratified, so too were ten important Amendments collectively referred to as “The Bill of Rights.” The founders rightly thought that outlining the structures and processes of government was not enough to ensure democracy. It was also necessary, as they foresaw, to outline rights of the people that could not be abridged by those governmental structures and processes. They are often referred to as “unalienable rights.” 

To comprehend what the Constitution says and how it came to be, it’s useful to outline just a little of what the founders were reacting to and who they were. They were men. For the most part, they were financially successful men and relatively well-educated. They were “white” men. They were overwhelmingly of European descent. They were mainly English speaking. They had successfully executed a War of Independence against England. They were not a homogenous group, but compared with the world as a whole or the current population of the United States, it was a very homogeneous  group of people. They were still quite aware of the excesses of monarchies and the horrors of tyranny. That background is important to understanding why they wanted to make sure that people’s rights were protected from government over-reach. 

Their homogeneity as relatively rich, well-educated, white men meant that the envisioned “government” would be for their own kind. Blacks had no rights. Children had no rights. Women had no rights. The other species on the planet had no rights. When they talked about rights, they were talking about their rights. 

Their background and particularly, the homogeneity of their background, also meant that they presumed some degree of honor and rationality existed in the whole cohort. They didn’t agree with each other about everything. Far from it. There were many debates and compromises baked into the Constitution. 

I cannot read the minds of the founders, but I imagine that because of their recent experience with tyrants, they were quite aware of the necessity of protecting rights. It’s not clear to me that they thought much about the need to codify obligations. They had been brought up to assume obligations and so had the other founders they worked with. It’s not surprising that they did not to bother to enumerate obligations.  These were the days when a young woman or man of nobility would forgo someone they truly loved in order to fulfill family obligations. If men thought their “honor” had been besmirched they would duel to the death over it. Honor really mattered. I think that’s part of why they didn’t feel it necessary to even think about a “Bill of Obligations.”

I would like to engage in a little thought experiment based on the premise that now, centuries later, we do need to think carefully about obligations. You have the right to free speech. You do not have the right to go into a crowded theater and scream “FIRE!” In order to cause a panic and kill people. This didn’t occur to the founders because, none of them would have ever done such a thing; at least, because of honor. It isn’t that rich white men were morally or ethically superior to a multi-cultural society. Far from it. But it is another aspect of the historical reason, I think, why they might never have bothered to enumerate such obligations.

To start, let’s look at the very First Amendment to the Constitution. I hope everyone will have the patience to wade through this lengthy document.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 Oh, look. It’s really not that long after all. 

The government should not be in the business of establishing a religion.

The government should not restrict people from practicing their religion.

The government should not abridge freedom of speech.

The government should not abridge the freedom of the press.

The government should not abridge the freedom to peacefully assemble.

The government should not abridge the freedom of people to petition the government for a redress of grievances. 

Despite the simplicity of the concept, there have been various arguments, often in courts, about what these rights “really” mean. It is not legal to scream fire it a crowded theater. That seems reasonable. It is legal to use your wealth to ensure that your favorite candidate wins because the courts have recently held that spending money to buy politicians is just “freedom of speech.” Huh? 

But I don’t want to argue about how to interpret “The Right of Free Speech.” Rather, I want to examine what might be reasonable and commensurate clauses in “The Obligations of Free Speech.” 

Here are some candidates. 

People have an obligation to speak the truth. 

People have an obligation to listen respectfully. 

People have an obligation to consider that their own opinion is not the only one that matters.

People have an obligation to follow agreed upon rules of conduct for the speech they are engaged in. 

One major benefit of the right to free speech is that ideas can be discussed and debated, and people working together can come up with more intelligent decisions that those of any single individual. In order for that to work, we need to hear many ideas, not just one. The obligations of free speech are also necessary for that process to work in achieving its goals. If we hear many ideas but many people lie, or refuse to listen to each other, or are disrespectful or break the rules of debate, we will not have intelligent decisions. 

Consider an analogy to tennis, although you could generate one for any sport; indeed, for nearly any human endeavor, but let’s stick to tennis. In tennis, you have the right to hit whatever shot you want. You can hit it hard or soft, or anywhere in between. You can hit it flat or put a lot of topspin on the ball or slice it or put sidespin on. You can drive the ball or hit a lob or a drop shot. You can hit it down the line or cross-court. 

Over the years, people have tried all sorts of various strategies and tactics for tennis. People use different grips. Some hit a two-handed backhand and some hit a one-handed backhand. A few even hit with two hands on both forehand and backhand. People try different things out and play improves, not only for the individual, but for the sport. So it is in any sport. Performance improves over time because people try out different things and what works better tends to be repeated and what does not work tends to fade away. But none of that would happen unless all the players also follow the rules. Their right to hit the kind of shot that suits them works hand in hand with their obligation to follow the rules. If players did not fulfill their obligations to play by the rules, and instead began simply insisting that they had won every point, tennis as a whole would not improve nor would the individual players improve. Most would eventually quit and among those who were left “playing tennis,” without rules or obligations, it would soon degenerate into a fist fight, or, more likely, I suppose, it would escalate from shouting to shooting. 

It’s the same for every human endeavor involving more than one person. You not only have some freedom of action vis a vis the other(s); you also have obligations. Just because you feel like assaulting someone on the street and taking their money, doesn’t mean you can do it. People who assault people are meant to end up in jail. Most eventually do. 

A society with a high degree of freedom and no sense of obligations is like buying a Lambroghini and paying extra not to have any brakes. It isn’t just human institutions and inventions that have opposing systems in balance. Look at life itself. Inhibition/excitation; inhale/exhale; sympathetic nervous system/para-sympathetic nervous system; biceps/triceps; adductors/abductors; dilation/contraction; heartbeats; sleep cycles; ATP/ADP Cycle. 

By the way, a society that was all obligations and no freedom would be like buying a Lambroghini and paying extra not to have a steering wheel or gas pedal; having the tires replaced by railroad wheels; you get to ride your Lambroghini down the track and back up again. That’s it. Well, that sucks! Yes. It literally sucks most of the fun out of life! It makes your life more predictable, but that’s not a good tradeoff; at least, not to me. 

Compared with most people, I think I prefer a lot of freedom. That doesn’t mean that I don’t believe in obligation, however, or that my freedom is subject to limits when it infringes on the freedom of others. I strongly prefer freedom of speech. I’m very happy for the First Amendment. But I would not go into a crowded theater and scream “Fire!” Nor should you. 

How about someone using Big Data analytics on your on-line behavior being used to manipulate you into buying stuff from the company who’s paying for you data. Here’s the deal. You think you are communicating on GiantSocialMediumCompany with your friends. The GiantSocialMediumCompany hardly seems as though it’s even there.

“Sure, it pops up some annoying ad about Kepsi or Poke every so often, but it easy enough to scroll past it. Except, you know that most recent Kepsi ad was kind a cute. Anyway, of course, I didn’t click on it.” 

Uh-huh. But you see, the fact that you even slowed down as you scrolled down past the Kepsi ad, is interesting data to Kepsi (and Poke too for that matter). They aren’t the only two parties who will be interested in your data. Who else might benefit? Lots of people. From many examples of your on-line behavior over time, they can determine which “wedge issue” you are most likely to emotionally react to. They likely have a rough categorization of the type of approach you’d pay most attention to: visual, clever text, GIF, video, website, complex/simple, personal/impersonal, etc. Then, you can be targeted with arguments that are calculated — not to open your mind or to help you see the other side. No. These are arguments designed to move you a little further away from your neighbors and friends; anyone who has even a slightly different opinion about a topic you care about. That’s the purpose. Not to educate. To divide. And it’s working. 

And, that, to me, is a an absolutely egregious breach of what should be the First Article in the Bill of Obligations. 

What do you think? 

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