Monday, January 8, 2018

"Freedom for the Thought That We Hate" -- Or What Freedom of Speech Really Means

The First Amendment Protects All Speech and Not Just What is Popular


It seems everywhere we turn these days there is anger and frustration being expressed against individuals or groups that are espousing words and ideas deemed by others somehow to be wrong, disrespectful, or hurtful. In other cases a mere failure to agree with a popular belief becomes the object of scorn. It is happening at football games when players take a knee during the Star Spangled Banner, on college campuses when speakers are shouted down or physically attacked, and in numerous other settings. 

The concept of freedom of speech in the United States has both normative and legal aspects. The normative aspect postulates that free speech is a critical tool for self-governance, as well as a way to promote individual liberty and freedom -- all concepts enshrined in our founding documents and given true meaning over the last several decades. The legal aspect, which developed relatively slowly in our history, is that courts will limit government efforts (of its own accord or to aid other citizens) to ban or suppress the content of speech or otherwise burden or punish expression, which includes the right not to speak.

My goal in writing this post is not to take sides on any specific issues but rather to share some thoughts about a framework for appreciating and understanding what I see as the true meaning of freedom of speech, its essential role in maintaining a free and open society, and why each of us needs to be concerned about the current assault on free speech -- regardless of which side you take on any given issue. 

As you read on, keep in mind the following questions. If the First Amendment was adopted only to protect views on which a majority of people agree, then why do we even need it? And, borrowing from Noam Chomsky, if you don't believe in freedom of speech for people and ideas you despise, do you really believe in it at all?


Free Speech is Broadly Protected Against Government Action

The First Amendment to the Constitution states as follows:
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. 
While the key text I focus on here is "abridging the freedom of speech," the press, assembly, and petition clauses all address free speech rights as well, and the free exercise and establishment clauses, while explicitly pertaining to religion, are closely related to freedom of speech, expression, and conscience as well. Thus the whole of the First Amendment protects freedom of expression quite broadly from government action. While many consider the First Amendment a cornerstone of freedom and individual liberty, it was "First" only by accident and not by design, as the first two proposed amendments in the Bill of Rights were not adopted.  So the First Amendment was actually the third proposed amendment.

The Development of Free Speech Protections

As written, the First Amendment literally is a command only to Congress to "make no law," but the First Amendment restricts government action well beyond statutes on the federal, state and local levels. Indeed, as originally contemplated, and certainly as written, the Bill of Rights itself (comprising the first ten amendments) was considered a set of restraints against only the federal government, as the Supreme Court ruled in 1833. So what changed? The addition to the Constitution of the Due Process Clause of the Fourteenth Amendment, passed just after the Civil War. That text provides that States may not "deprive any person of life, liberty, or property, without due process of law[.]" Over time, the Supreme Court has "incorporated" many provisions of the Bill of Rights through the Due Process Clause (including freedom of speech) by finding them to be implicit in the concept of "ordered liberty" with which the States may not interfere.

The Current Scope of Free Speech Protection

What is Protected?

While some First Amendment purists -- know as absolutists -- view any government regulation of speech as impermissible, that view has not prevailed. Here are some examples of protected speech:
  • The right to make political statements, speeches, march, protest and support political campaigns
  • The right not to speak -- including the right to not recite the Pledge of Allegiance
  • The right to use words that some find offensive -- such as wearing a jacket that says "F*ck the Draft" in a courthouse
  • The right to advertise lawful products
  • The right to burn a flag you own
Importantly, restrictions on the time, place and manner of speech are permissible, but only so long as the restriction is "content neutral" -- meaning that it is not directed to the content of the speech or the viewpoint of the speaker. So a ban on late night protest marches when people typically are sleeping -- assuming it applies to all such types of marches and not just some -- would be allowed.

What is not protected?

  • Incitement of imminent lawless action, where in fact it is likely to occur
  • "Fighting words"
  • Libel and slander (although the press gets special protection here)
  • Obscenity, as judged by local community standards
  • Speech that is criminal in and of itself - e.g., extortion and conspiracy
Why Should We Even Protect Unpopular, Distasteful, False or Hateful Speech?

One tendency of governments -- and of many individuals as well -- is a desire to suppress speech that is unpopular, distasteful, hateful, or perceived as false or harmful to society by banning it or punishing the speaker. We have a very long history of doing that in America dating back to the early years of the Republic. One early and terrible example is the Sedition Act of 1798, which made it a a crime to criticize "the government of the United States, or either house of the Congress of the United States, or the President of the United States." Expressly and intentionally omitted was the Vice President -- because Thomas Jefferson was Vice President as the loser of the Presidential election (the original way we filled the role), and he was not a member of the Federalist party of President John Adams. This blot on free speech expired in 1801 and newly elected President Jefferson pardoned those who had been convicted, paid fines, and been sent to prison.  Although never tested in the Supreme Court, the Court noted in a famous 1964 case that "the attack upon its validity has carried the day in the court of history." In other words, we came to see the value in allowing speech breathing room and letting the battle of competing philosophies sort itself out in debate.

The "Marketplace of Ideas"

As noted above, our current conceptions of and protections for free speech have evolved dramatically, and it was less than 100 years ago that we started to think about actually protecting freedom of speech. Justice Oliver Wendell Holmes, Jr. offered a path in a famous dissent in a 1919 decision concerning criminal prosecution for anti-war leafleting during World War I. He understood why government officials want to suppress speech -- because it is human nature:
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. . . . 
This eventually became the modern approach to protecting free speech. To my way of thinking it remains the most viable model for doing so, especially in the information age in which we live with virtually unlimited channels of communication broadly available across society.

President Obama echoed these sentiments in a very thoughtful way -- especially in light of the dissension in current American society -- in his 2016 Howard University commencement speech:

So don’t try to shut folks out, don’t try to shut them down, no matter how much you might disagree with them. There's been a trend around the country of trying to get colleges to disinvite speakers with a different point of view, or disrupt a politician’s rally. Don’t do that -- no matter how ridiculous or offensive you might find the things that come out of their mouths. . . . Let them talk. If you don’t, you just make them a victim, and then they can avoid accountability. That doesn’t mean you shouldn’t challenge them. Have the confidence to challenge them, the confidence in the rightness of your position. There will be times when you shouldn’t compromise your core values, your integrity, and you will have the responsibility to speak up in the face of injustice. But listen. Engage. If the other side has a point, learn from them. If they’re wrong, rebut them. Teach them. Beat them on the battlefield of ideas. 
There Are No False Ideas Under the First Amendment

As the Supreme Court stated in a leading defamation case, '[u]nder the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas." Simply put, you have the right to be wrong in the eyes of others. This is not a new concept. Having been elected President after the bitterly contested election of 1800 by the House of Representatives on the 36th ballot, Jefferson had this to say at his inauguration -- after first noting that "[w]e are all republicans: we are all federalists":

If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it.
Thus, under our system of freedom of speech, the answer is more speech, not less.

"Freedom for the Thought That We Hate"

A key aspect of our evolved concept of freedom of speech is the protection of the expression of unpopular ideas and, frankly, ideas that promote contempt of the current order. It is self-evident that the First Amendment was not drafted to protect favored speech, but rather to ensure the viability of disfavored speech; indeed, it is bewildering to me that we spent much of our history ignoring that very concept. 

Eric Blair (who published Animal Farm and Nineteen Eighty-Four as George Orwell) captured perfectly why we protect speech that many of us dislike, when he wrote the following powerful words: "If liberty means anything at all, it means the right to tell people what they do not want to hear." Justice Holmes addressed this idea in the 1919 decision noted above:
I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. 
In a later case, Justice Holmes crystalized his expansive view of the First Amendment by indicating that disagreeable views should be exalted:
[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate.
What Justice Holmes had to say in these cases about the very essence of free speech constitutes the doctrinal basis for our current approach. It is not that we should only permit and protect speech that is popular and embraced by the majority. Were that the test we would not need the First Amendment, for we would have a simple majority wins rule. The point is that the First Amendment (as it does with religion, too) protects all points of view, and most especially the dissenting and minority views. That is the theory underlying our freedoms. To borrow from Orwell's Nineteen Eighty-Four, in the United States there simply is no Ministry of Truth. The Supreme Court stated this clearly in a 2000 decision:
The First Amendment protects expression, be it of the popular variety or not. . . . And the fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.
This is not an easy ask of people -- that they should understand the benefit of protecting views they dislike. But it is what our system requires.

A Case Study: The Pledge of Allegiance Debate Is Not New

As noted above, the decision of athletes and others to kneel at sporting events really bothers people, and it is directly related to not standing for the Star Spangled Banner and placing your hand over your heart at a sporting event. In fact, the real object of this ceremony is saluting the flag -- which is what the song is about. But did you know that this is not a new issue? Quite to the contrary. It was a raging debate during World War II and produced two Supreme Court decisions in the short span of only three years. After first deciding in 1940 by an 8-1 margin that Jehovah's Witnesses could be compelled to salute the flag, the Supreme Court reversed itself only three years later. 


The Jehovah's Witnesses argued that being forced to salute the flag violated their religion. What made the Supreme Court change its mind? No doubt it was in part World War II. Justice Stone, the lone dissenter in the 1940 case, captured the issue just right when he stated in dissent as follows:

The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them. . . . The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say. . . .
The 1943 decision picks up at this point. The majority opinion by Justice Jackson is as stirring an explanation about the need to protect those who hold a minority view as has ever been written.
The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
He then went on to state the rule that is still applied today to protect those among us who would dare to follow their conscience and march to the beat of their own drum:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
I challenge anyone who believes in freedom and liberty to explain why that should not forever be the guiding light of free speech protection.  

*      *      *      *      *

About now, maybe you are saying that while this is all very interesting, what happens when I know I am right and someone still disagrees with me? Why should I have to put up with that? Well, as Don Draper would say, “[i]f you don’t like what’s being said, change the conversation.” You can always tune out; stop watching the 24 hour talking heads and panels on the various cable news networks; stop reading the newspapers that are causing your frustration; and stop discussing such topics with people you view as misguided. Perhaps, instead, open your mind to the notion that reasonable people can disagree. Yes, we can have a discussion and leave it accepting that there are competing views. You might even learn something, or change your mind, although I am not suggesting you have to change your view or compromise your position. All I am saying is practice tolerance of other ideas. And if you really and truly believe in your heart that you are right then so be it. You can be right without silencing others -- who also think they are right. That is the essence of our system of freedom of expression, and we need to preserve it.


And finally, if you really and truly cannot appreciate the need to allow other people to be "wrong" and hold and express opinions you dislike, even intensely, then read Orwell's Nineteen Eighty-Four. It shows you what a desire for uniformity of thought can do. Tell me if you want to live in a society that has a Ministry of Truth and stifles dissent and coerces conformity. By the way, if Orwell does not convince you such a place is to be avoided at all costs, then, by George, nothing will. . . . But I will defend your right to have that view and express it peacefully!

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