There are only two kinds of people who reliably cannot interpret figurative language as such, confusing metaphor or hyperbole with literal sense. They are schizophrenics and, apparently, political conservatives.
It has long been a basis of psychiatric diagnosis to ask a subject to interpret a proverb. If they interpret it literally, that tends to favor a diagnosis of schizophrenia. “A rolling stone gathers no moss” is a favorite. A literal interpretation would consist of an explanation of how moss grows more easily on stationary objects. A “normal” interpretation makes use of metaphor: someone who has put down no roots and has no connections to others will not be saddled with responsibilities, and/or will not amass property or meaningful relationships.
A recent front-page article in the New York Times offers evidence that schizophrenics are not alone in the inability (or unwillingness) to understand that language or “speech” may have non-literal meanings. The votes by conservative Supreme Court members in two recent decisions illustrate the point: Masterpiece Cakeshop v. Colorado, and Janus v. AFSCME, both 2018. In Janus, the majority opined that a cake was a form of expression, or First Amendment protected speech, and therefore forcing a baker to make a cake for a wedding that he objected to violated the freedom of speech. But this metaphor – equating other forms of communication with “speech”– is merely confusion. In Janus, the conservative majority argued that forcing government workers to pay union dues violated their First Amendment rights, equating monetary contributions to a union with linguistic behavior. In a third, older decision, Citizens United v. FEC (2010), the conservatives held that restricting the flow of money to political candidates constituted a constraint on speech, conflating political speech itself with the wider dissemination of language or speech that the money enabled that candidate or party to buy. So the majority is confusing the literal expression of political ideas with the conduit by which that language was disseminated – doubly distancing the interpretation from any literal understanding of “speech,” confusing a rhetorical trope with a literal understanding of the First Amendment. But in reality money is not equivalent to speech, even metaphorically: it is just an enabler of speech.
There are many circumstances in which speakers and hearers understand language metaphorically and no harm is done. In fact, stretching the meanings of words in this way enhances clarity, provides pleasure, and often (e.g., in poetry and proverbial expression) allows a speaker to make her point more succinctly than she could have through the literal expression (as with “a rolling stone gathers no moss”). But some kinds of language require literal expression, or confusion will result. Legal discourse is one such case. There the substitution of a trope for the literal expression will encourage misunderstanding.
So substituting the literal First-Amendment sense of “speech” with a metaphor (as in Masterpiece) or equating it with something that merely functions as a conduit (Citizens United) subverts the intent of the Framers in creating the First Amendment. That’s a new way to be “conservative.”
Nor is that the only irony (another trope) in the conservative interpretations. Most conservative legal theorists are originalists: they believe that laws must be interpreted forever just as their creators intended them to be understood. The Constitution, said the late Antonin Scalia, is a dead document; its meaning was determined once and for all in 1789, regardless of the many ways in which both language and society have changed since then. So, for instance, the Eighth Amendment proscription against “cruel and unusual punishment” was meant by the Framers to exclude drawing and quartering as a form of execution; but a frequent contemporary understanding that the whole business of putting someone to death might be both “cruel” and, in some sense, “unusual” was irrelevant: lethal injection, had it been available in the late eighteenth century, would not have bothered the Framers at all. That is undoubtedly true, but mores have changed since then, opponents of originalism would say, and the Constitution should be interpreted so as to reflect current moral standards. In the eyes of liberals, then, the Constitution is a living document: it evolves to meet the needs and understandings of every generation of “we,,the people.”
Originalists, like the rest of us, are not totally consistent: thus in the late 18th century “speech” meant oral, face-to-face utterance or written documents. There was nothing else. But today linguistic communication covers so much more: radio and television, computer mediated communication, social media, and so on. Conservatives seem to have no problem extending the First Amendment’s use of “speech” to these cases. But these are not metaphorical extensions – just new types of linguistic communication – that is, “speech.”
So it is ironic that it is the conservative, originalist arm of SCOTUS that is comfortable with significant extensions of the Framers’ 18th century understanding of words like “speech” and “money.”
In the article cited above, Adam Liptak points out that liberals, in the past, could also be charged with expanding or altering the sense or intention of the First Amendment’s protection of speech, often when qualifying the circumstances in which government may prohibit speech of possibly dangerous kinds, for instance in Schenck v. United States’s “(1919) “falsely shouting ‘fire’ in a crowded theater,” Brandenburg v. Ohio’s (1969) requirement of a “clear and present danger,” to justify prohibiting inflammatory rhetoric, and Chaplinsky v. New Hampshire’s (1942) definition of “fighting words” as outside the protection of the First Amendment. But all of these use “speech” or “language” literally. While these cases may extend the scope of First Amendment protection, they do so by enlarging the real-world sphere (when, where, and how) speech is to be protected, but keeping the literal meaning of “speech.”
As Liptak notes, curtailment of some kinds of speech is not a desideratum limited to conservatives. Some feminists, Catharine MacKinnon in particular, want to constrain the category of protected speech.
“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote, as quoted by Liptak. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.” So when the targets of “free speech” are the weak or marginalized, rather than the government, the effect of extending that freedom may be very different from what liberals desire. But this is not a problem arising out of overextensions of the meaning of “speech” in the First Amendment.
Since the First Amendment, like the rest of the Constitution, applies only to actions by the government, authoritarians et al. are protected only insofar as their speech occurs within the scope of government institutions – like public universities. It should not be a problem to regulate hateful or dangerous speech on the Internet. But that creates other problems – resentment and endless argumentation for starters. A lot of the problems, no doubt, occur because the notion of the Internet, like anything other than face to face oral or written discourse was beyond the Framers’ imagination. In that light, determining what the First Amendment meant when it was adopted and what it should mean now are thorny, probably unanswerable, questions.
So what are we to do? How should legislators and jurists with the power to regulate discourse think about speech and language? My preference would be cautionary, something along these lines: SCOTUS and other appellate courts should be very wary about stretching the meanings of words like “speech,” since metaphor and other tropes bring us into territory we can’t strictly control. “Speech” should be understood as applicable only to forms of linguistic communication.