Free Speech and the American Way

To read Part 1 in this series, click here.

THE ENGLISH TRADITION

If the Ark of the Covenant—that is, our modern religious views of speech—commands morality in our speech and deference to religious authority and the sovereignty of God, the arc of western legal tradition defends our natural right to speak our mind as sovereign individuals.

An important early advocate for the right of publishers to print ideas without prepublication censorship was English poet and politician John Milton. In 1644, before he went blind and later wrote his most famous poems (e.g. “Paradise Lost”) Milton anonymously wrote a pamphlet entitled “Areopagitica” (a reference to the ancient Greek hill on which orators freely debated).

Milton asserted that the Roman Catholic Church should not have ecclesiastical veto over public discussion; that readers’ exposure to a variety of opinions (good and evil) would allow for our human consciences to develop moral virtue; that censorship of the printed word would not alone ensure public morality (as song, dance, and theatre also attracted interest); and that the flourishing of the human mind through reason and rational debate rather than acceptance of authorized ideas argued against state licensing of published thought. Milton promoted the notion that public debate among intelligent minds was best without a partial umpire enforcing consensus or political unity.

Thomas Paine, English-born author of “Common Sense” (1776), was a key figure in communicating widely to the American public the necessity for revolution to advance religious liberty and to enshrine in writing our human rights to freedom of thought and conscience.

In “The Age of Reason” Paine theorized inviting, not denying, opinions with which one disagrees. “I have always strenuously supported the right of every man to his own opinion, however different that opinion might be to mine. He who denies to another this right, makes a slave of himself to his present opinion, because he precludes himself the right of changing it.”  

In “The Age of Reason” Paine theorized inviting, not denying, opinions with which one disagrees.

John Stuart Mill, born in greater London, was a leading political philosopher, economist, and Member of Parliament. He was a powerful advocate for social liberty, believing “the struggle against authority is the most conspicuous feature in the portions of history.” He believed in the absolute authority of an individual as sovereign over his own person, and that government may interfere with his life only to protect society. This formed the basis for his famous “harm principle,” which approved restrictions on speech only to avoid harm to another.

In his essay “On Liberty,” Mill declared that free discourse is a necessary condition to social progress. Even false opinions are productive and may be corrected through an open exchange of ideas. “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”

Mill assumed good faith and responsible intentions, claiming that “unmeasured vituperation, employed on the side of prevailing opinion, really does deter people from expressing contrary opinions, and from listening to those who express them.” Debate, not dogma, forces an examination of beliefs in the quest for truth.

Similarly, British writer Evelyn Beatrice Hall penned the oft-quoted principle of many free speech champions: “I disapprove of what you say, but I will defend to the death your right to say it.”

AMERICAN LAW AND THE MARKETPLACE OF IDEAS

The First Amendment was subject to sincere debate among the Constitutional framers. The American Revolution aroused many to promote robust political expression as foundational to democratic values, though several state constitutions formally excluded “abusive” speech and suggested a duty of morality and civility as the basis for protected political speech.

The debate over ratification of the U.S. Constitution within the 13 American states was fierce, and unanimity was secured only upon the passing of the Bill of Rights, the first of whose Constitutional Amendments proclaims:  “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.”

Nevertheless, malicious writings seen as threats to the Federal government were prosecuted under the Alien & Sedition Act of 1789. The denial of Habeas Corpus in 1861 under President Abraham Lincoln during the Civil War also withstood constitutional challenge. During wartime, Americans tend to prioritize security even over cherished liberty.

With rare exceptions, however, the U.S. Supreme Court has moved over time to limit government “prior restraint” upon or control over the content of citizens’ speech.

In 1914, Supreme Court Justice Louis Brandeis acknowledged dismaying speech but wrote that “sunlight is the best disinfectant.” He believed that transparent airing of bankrupt or error filled views should not be hidden but exposed. In 1927, he noted that the remedy “to falsehood and fallacies….is more speech, not enforced silence.”

In 1919, Justice Oliver Wendell Holmes, Jr. affirmed the government’s prosecution of a socialist leafleteer who opposed the World War I draft, based on the standard of a “clear and present danger” to the recruitment and enlistment of troops. The Supreme Court much later narrowed this test to require proof of an “imminent lawless action” such as a public riot. However, in a famous dissent that same year, Holmes also opined that an anti-war anarchist must be allowed to compete in the “free trade in ideas.”

In 1937, Justice Benjamin Cardozo pronounced that free speech was “the matrix, the indispensable condition for nearly every other form of freedom.”

At the height of the Cold War, Judge Learned Hand affirmed the prosecution of communist speech as presenting a “clear and present danger” to the Republic. Today, this ruling is unpopular as too restrictive of political ideas, though the government’s banning of online terrorist videos promoting the overthrow of the U.S. government would likely rely on this reasoning.

In an important 5-4 opinion in Cohen v. California (1971), the Court overturned the conviction of a man who wore a T-shirt which read “F-the-Draft.” The Court limited the fighting words doctrine, rejected the application of obscenity laws to profane speech, re-asserted the protection of offensive speech, and declined the government’s argument that it could ban words it deemed unpopular. Justice Harlan summarized: “One man’s vulgarity is another man’s lyric.”

This is not to say all speech is absolutely protected. The American legal system has created numerous categories of speech that can be restricted by “time, place and manner,” or as “conduct,” or as “lower level” or “non”-speech.

Examples include restrictions on child pornography and obscenity; movie rating codes; defamatory libel and slander; incitement to imminent violence (i.e. taunting another toward suicide); true “fighting words”; threats to the President; criminal conspiracy; disruptions of courtroom, school, or library decorum; and the breach of neighborhood peace.

The Federal Communications Commission regulates the public airways, the Federal Election Commission regulates election speech, and the Securities and Exchange Commission regulates capital markets salesmanship. Various other aspects of commercial speech are also regulated to demand truth in advertising, including in the sale of food and drugs.

Some defenders of political speech have become more attracted in recent years to a perspective broadly held in Europe, which prioritizes a listener’s dignity when “harmful” speech injures or humiliates. The U.S. tort of “intentional infliction of emotional distress” is a legal path for those who have been psychologically damaged by the weaponization of words meant not to inform, educate, or even advocate, but merely to assault.

Two famous quotes by President George Washington reflect the dual concerns Americans share. First, he was very clear that “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”

However, in his famous letter to the Hebrew Congregation of Newport, Rhode Island, our first President captured the promise of America to all of its citizens: “Everyone will sit under their own vine and under their own fig tree, and no one will make them afraid.”

Here Washington seems to hint at the theory that a certain kind of hate speech against a fearful minority violates the democratic nature of our nation.

However, the Supreme Court has to date tended not to favor this legal reasoning and instead has repeatedly ruled across ideological lines in favor of the free speech rights of neo-Nazis upsetting Holocaust survivors in Skokie, Illinois; the Westboro Baptist Church chanters disrupting a private funeral with gay-bashing slogans; desecraters of the American flag; cross burners in front of African-Americans; robe and hood-wearing KKK marchers; and, one suspects soon, Antifa demonstrators wearing black masks.

“Sticks and stones may break my bones but words will never hurt me” is not true for many citizens. Yes, some speech will hurt, intimidate and damage — speech that is intended not to persuade but to attack.  

“Sticks and stones may break my bones but words will never hurt me” is not true for many citizens.

Content moderators are busy censoring disturbing videos from appearing on your Facebook feed, such as cruelty to animals. Those who would regulate or punish “upsetting” speech argue that First Amendment protections are meant to apply only to “decent” or “civil” speech that expresses legitimate ideas.

The tension building in politically correct circles between a robust commitment to freedom of expression and the rising tide of left-wing political advocacy is best seen in the debates within the American Civil Liberties Union. Long advocative of the free speech rights of the unpopular, the ACLU began to wobble under pressure to prioritize instead a social justice agenda. In 2018, the ACLU formally announced new guidelines to prioritize progressive values in evaluating its commitment to advocate for the constitutional rights of speakers who do not meet the political litmus test of its Board and membership.

The debate is therefore joined between the European model, which champions a subjective defense of a listener’s right not to be emotionally harmed against the characteristically American idea of protecting speakers’ expressive rights to independence and individuality.

After the Danish publication of cartoons of the prophet Mohammed and the resulting wide-scale violence by Islamists, European governments essentially caved to the sensibilities of their growing minorities and initiated “hate speech” criminal prosecutions of newspapers, writers, bloggers, churches, business owners, pubic figures and average citizens in a way that continues to shock many Americans.

Compare this to the ability of American religionists to poke fun at their own dogma and culture yet remain loyal to their tradition.

The Church of Jesus Christ of Latter-day Saints earned deep admiration for its poise in responding to a decades-long mocking of their faith by putting advertisements in the “Book of Mormon” Broadway playbill. “You’ve seen the play, now come to one of our churches to see the difference!”

Our American jurists have repeatedly sided with controversial speech, upsetting speech, and politically incorrect speech. In his famous address to the Author’s Guild Council of New York in 1953, Justice William O. Douglas stated: “Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.”

As the Times Square ball drops each New Year’s eve, revelers follow up their midnight kiss, champagne toast, and signing of “Auld Lang Syne” (a Scottish poem meaning old times past) with a rousing rendition of “My Way”—the unofficial anthem of not only brash New Yorkers but also all Americans belting out hopes and determination to fulfill their dreams in the coming year

“For what is a man, what has he got, if not himself, then he has not. To say the things he truly feels, and not the words of one who kneels. The record shows I took the blows and did it my way.”

The English tradition and the American legal system have developed robust safeguards for individual expression. Political speech in particular is protected, even when it challenges cherished majoritarian ideas. While commercial speech and some other expressions can be regulated, the American way has generally favored the speaker over the listener. In recent years, sensitivities have developed to the point that, at least on college campuses, some younger citizens are increasingly attracted to a European style protection against “harmful” speech.

We must ponder whether Americans will continue to protect even deeply disturbing speech in the belief that while the cost can be very high, our freedom of expression is priceless.

Larry Greenfield is a Fellow of The Claremont Institute for the Study of Statesmanship & Political Philosophy.

The Speech Project is an initiative of the Jewish Journal that brings together some of the most compelling voices from across the political spectrum to address the topic of free speech. In a cultural moment where civil liberties often seem to be under siege, we encourage freedom of expression, independent thinking, and personal choice. The articles, podcasts, books, and other resources you’ll find here all challenge the growing illiberalism of our time in their pursuit of balance and authenticity.