IS IT TIME TO CHALLENGE THE FIRST AMENDMENT?

About a year ago in his standup act, comedian Bill Maher called Sarah Palin a “cunt.” There it is. In black and white. It is a word that our culture has deemed about as ugly as any word in the language. In common usage it reduces a woman to nothing more than her genitalia. It negates her intellect, her emotions, her purpose in the world. It is, at this point in the evolution of the English language, about as insulting as one word can be.

This week, in light of the prolonged controversy surrounding radio entertainer Rush Limbaugh calling a Georgetown University student a “slut” and a “prostitute,” Mahar has come under some criticism for his misogynistic language. In an interview with ABS’s Jake Tapper, Mahar defended his unfortunate choice of words this way: “I'm a comedian - not just a guy who says he is, like Rush, but someone who - well, you saw me do stand-up last year in D.C. There's a big difference between just saying you're a comedian and going out and getting thousands of people to laugh hard for 90 minutes. And the one I'm compared to most is Carlin, who also had these kind of problems.”

To paraphrase 1988 vice-presidential candidate Lloyd Bentsen, let me just say this to Bill Mahar: Bill, you’re no George Carlin. You see, Carlin, from his earliest days on stage and on television, was a cultural commentator disguised as a comedian. Bill, you’re a comedian, disguised as a cultural commentator. There is a huge difference.

Here is how Mahar (left) rationalized his Palin (left) insult to Tapper: “Because it was a routine where that word came in at just the right moment. Context is very important, and it's also important to remember that stand-up comedy is the final frontier of free speech.”

Really? I think not. There will probably never be a “final frontier” of free speech. In fact, what we are witnessing in our culture right now is a real struggle to figure out if there are, or should be, boundaries to free speech. And if boundaries do or should exist for this historical American freedom, do we want them to be federalized or moralized? In a true democracy, who decides if it’s okay or not okay to call a college student a slut over the national airwaves? And if it’s not okay, what do we do? Should we take away Rush Limbaugh’s right to speak over the airwaves, or should the free market do its thing and naturally decide if he belongs in his high tech public forum?

There are many more questions than answers in our struggle to figure out what to do with the Rush Limbaughs (right) and Bill Mahars of the world. Chief among them is this: Is it time for us to challenge the limits of the first amendment? If that sounds revolutionary, it is not. The first amendment was notably challenged twice, in 1992 and 1993. Both times, the cases revolved around incendiary or hate speech. Decades earlier, the Supreme Court decided that such speech was not protected under the First Amendment. So, perhaps now would be an appropriate time for the amendment to be scrutinized further. This time, perhaps it would make sense for the U.S. government to consider the issue of civility. And for those who would question how we would define civility or incivility, remember there were those who strongly questioned what constituted hate speech when the amendment was challenged two decades ago.

Why is it implicitly acceptable in America to call a candidate for the vice-presidency a cunt? Why is it implicitly acceptable in America to denigrate private citizens on a radio talk show? It is time for us to find some consistency in the acceptable communication mores in our culture. Don Imus,(left) the radio talk host, managed to stay on the air for a very long time before finally being released by CBS radio in 2007 after referring to black women on Rutgers University’s basketball team as “nappy headed hos.” However, long before that he made repeated defamatory remarks, including one prior to the Rutgers debacle when he said one of his co-hosts was “hired to do nigger jokes.” He routinely referred to gay men as “faggots.” He was able to stay on the air because there is no consistency in FCC policy related to slander based on race, gender or sexuality. That lack of consistency runs parallel with the vague nature of the First Amendment.

So now it seems time to once again challenge the amendment to exclude defamatory speech, just as it excludes hate speech. Consider this: When the Constitution was written, there was no way for its authors to foresee the emergence of digital communication centuries later. Digital communication easily allows one individual to reach a majority of Americans instantly. That suggests that freedom of speech then bore very little resemblance to freedom of speech in 2012. That being the case, shouldn’t we Americans be taking a second look at the amendment to determine if it adequately speaks to contemporary cultural and technological shifts? I think so.