A Very Brief History of the First Amendment*

By Enrique Del Risco

Translated by Coco Fusco

Freedom of expression is central to our understanding of the US Constitution, but it became the first amendment by chance. The amendment that prevents the government from restricting speech, worship, press, and assembly began as the third that a gray-haired James Madison added to the newly approved Constitution. He had originally proposed two other amendments that were rejected. His third proposal for the protection of speech was considered more important and approved. That turned out to be a wise decision. 

 The Guatemalan writer Augusto Monterroso wrote a clever fable about the relationship between dissenting voices and the rest of society. As it is short, I will reproduce it in its entirety: 

“Many years ago, in a distant country, there was a black sheep. It was shot. A century later, the repentant flock erected a handsome statue of a sheep mounted on a horse in the park. And so, from then on, whenever black sheep appeared, they were quickly put to death so that future generations of ordinary sheep could also practice their sculpting.” 

I quote this fable—at the risk of it being confused with a racial allegory, which it is not—because the First Amendment, since its passage, changed the fate of black sheep. Instead of becoming victims for executioners (and future statues), black sheep could now put their trust in a law that would protect them whenever the most conservative part of the flock sought to crush them in the name of the homeland, morality, or good customs.

As time passed, the flock changed: black sheep were no longer a rarity and yellow, pink, brown, and even multicolored sheep abounded. The multicolored sheep were so excited about their growing numbers that they began to resent the first amendment, since that was the pretext used by the most recalcitrant sheep to attack them. Now that their numbers were growing, they began to question whether they should be governed by what a slave owner had written more than two hundred years ago. So, the multicolored sheep sought to turn not being offended into a sacrosanct right and, thereby feel more respected than ever.

But then the white sheep remembered that they were still in the majority and asserted their dominance, with the result that the First Amendment ceased to have the importance previously attributed to it. If theessential thing was to command respect, it was worth silencing anyone who disagreed with the image that the flock’s immaculate self-image was a small price to pay.

It was enough for the renewed inquisition to singe the fleece of a few multicolored sheep for them to once again appreciate the amendment written by a slave owner two centuries ago. Thus, they understood—hopefully forever—that much more important than the right to not be offended is the right to not be silenced. Unless you prefer the practice of sculpture in the future to that of freedom in the present.

*Published in The Siren