December 16, 2018

‘Freedom to think as you will and to speak as you think’

The most eloquent defense of freedom of speech that I have ever read was authored by Justice Louis Brandeis. In Whitney v. California in 1927, Justice Brandeis wrote:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.

This short passage reflects that Louis Brandeis was one of the very best writers ever to serve on the Supreme Court. It also explains a philosophy of freedom of speech that has guided the court to this day. Freedom of expression is integral to democracy and to the search for truth. The best remedy for the speech we don’t like is not suppression, but more speech. Brandeis thus expresses the view that the First Amendment protects a marketplace of ideas from which we all benefit.

The passage also reveals Brandeis’ faith in reasoned discourse and the political system. There always is a danger that noxious ideas will triumph over noble ones. History shows that sometimes horrible ideas gain widespread belief, at least for a period of time. But Brandeis sees the First Amendment as embodying the belief that discussion will lead to protection from evil ideas. His is not a naïve faith. He recognizes the dangers of freedom of speech, but sees greater dangers in the alternative: letting government decide its view of the truth and suppress all other ideas.

During Justice Brandeis’ tenure on the Supreme Court, there were many cases of individuals convicted for criticizing the draft and World War I, or for advocating the overthrow of the United States government. The high court upheld these convictions, giving little protection to speech, often over Justice Brandeis’ dissent.

Issues of freedom of speech are somewhat different today, but no less controversial. Is hateful speech, especially on college campuses, protected by the First Amendment? Is there First Amendment protection for speech that supports terrorist organizations or assists terrorists? For these, like so many constitutional issues, Justice Brandeis’ wisdom is as apt today as when it was written. Every generation wants to suppress the speech it perceives as undesirable, but “the fitting remedy for evil counsels is good ones” and not censorship. 

Erwin Chemerinsky is dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.