Amending the First Amendment

[First of a series of 4 posts about “Freedom of Speech”]

This post may sound like an attempt to further limit “freedom of speech” beyond current limits, but in fact this is not actually the case in  terms of UK law, which currently has irrational and inconsistent limitations that go at least as far as my suggestions and in some ways much further. My proposal would in some ways be an attempt to limit “freedom of speech” in comparison to the current US constitution however. It may seem strange that I’m talking about the US constitution while also referring to UK/European laws. The reason I am doing this is because I think the US constitution is a good starting point to try to define a practical general definition of “freedom of speech” that could be used by other countries. I cannot find a definition that exactly matches my own idea so I will create my own definition in this series of posts. For brevity I will not mention issues such as state secrecy and libel which I think are subjects that are quite distinct.

We in the West are floundering around wondering what on earth to do about the ever expanding and divisive influence of Islam in our societies. We still have principles, although not so much nowadays. It matters that we deal with this problem within sound principles, because otherwise Equality Before the Law and the “Freedom of Expression” will be endangered. However we may have to rethink our principles a bit because right now our current principles seem to be helping the threat our way of life faces more than they are helping us. Western civilization is in grave danger, not currently from the growing Islamic minority directly, but rather from the panicked and ignorant reactions to the influence of that growing minority, by our own feeble minded governments. US President Barack Obama’s ambiguous statement that:

“the future must not belong to those that slander the prophet of Islam”.

is unfortunately rather typical of the attitude of a great many Western politicians currently. (1).


In stark contrast with this trend of appeasement elsewhere, Geert Wilders has announced his plan to “ban” Islam and all mosques in the Netherlands.

Quote from the Daily Express (2):

“Sybrand van Haersma Buma, leader of the Christian Democratic Appeal (CDA) party, branded Mr Wilders’ plans “utterly bizarre and unbelievable”.”

He added: “The programme will further polarise Dutch society.”

What this Mr. van Haersma Buma misses of course is the problem that Islam is also polarizing Dutch society, and will continue to increasingly do so if we continue to appease the religion.  Mr. Wilders own statements (3):

“I believe we have been too tolerant of the intolerant,”

“We should learn to become intolerant of the intolerant.”

The question is however, can such a “ban” be lawful within a framework like the US Constitution?

It seems Geert Wilders is ahead in the polls as well, ahead of next year’s election. When I first heard of this “ban” I thought hurrah! It got me thinking though, especially after a debate where someone accused me of hypocrisy for wanting to “ban” Islam but also being a believer in freedom of speech. They had a point, I had not clearly enough established in my own mind exactly what I meant by “Freedom of Speech”. I decided to try to define exactly what I meant by the term.


The US Constitution has served very well at least until fairly recently to protect freedom of expression in the US. I would like to see a similar such constitution adopted in the UK, but I believe we need to consider seriously the following modifications before we do that.

The First Amendment states (4):

“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.”

So straight away in the first part is a statement that I disagree with:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

I disagree because I believe that if a religion incites violence and other crimes then it should not be protected by the constitution from government laws being passed to restrict it. That is not to say that governments MUST pass laws against such religions, but rather that governments should be FREE to pass such laws, if they deem it necessary to do so for pragmatic reasons. I believe that currently the existence of this statement in the First Amendment will make it impossible for the US to “ban” the Islamic religion, within the constitution.  It was written at a time when the only significant religious groups in the US were different denominations of Christianity, and so it is not too surprising that they seem not to have considered the problems posed by such a religion as Islam.

We should therefore remove the above statement so that we are left with this:

“Congress shall make no law abridging the freedom of speech, or of the press; or prohibiting the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Of course some might raise the objection that the reference to religion is designed to prevent theocracies developing and banning religions on purely religious grounds, just because they prefer a particular religion and think everyone should be made to follow that religion.

However I discount this objection because I think we can encompass such a protection for religious observance generally within a definition of “Freedom of Speech”.


We are still left with the problem, what EXACTLY do we mean by “The Freedom of Speech”. The US constitution does not protect all speech.  There are categories that are not protected including incitement, fighting words and offensive speech, among others. I will focus on these particular here listed specific restrictions as currently I do not have any objections to make to those other exceptions.  I am going to try to draft a definition of incitement that could be used in writing a constitution, for a (hopefully) more rational age.

Every attempt to define incitement always runs into difficulty with deciding exactly where the line should be drawn. Did Henry II incite murder when he supposedly asked his knights – “Who will rid me of this troublesome priest?”. This question is very hard to answer, but I think we have to try. Words do influence people, authority figures such as religious leaders can have a huge impact on the deeds of their followers. The US legal system has in fact struggled with this distinction as well over the years. As incitement is such a big subject I am going to cover it separately in the next two posts.

[The other posts in this series:

Incitement and Current Law

Incitement – A New Legal Framework

Incitement and Religion











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