“The matrix, the indispensable condition, of nearly every other freedom”— that’s how Justice Benjamin Cardozo referred to freedom of speech.
This eminent Justice is far from alone in his assessment of the lofty perch that free speech holds in the United States of America. Others have called it our blueprint for personal liberty and the cornerstone of a free society. Without freedom of speech, individuals could not criticize government officials, test their theories against those of others, counter negative expression with a different viewpoint, or express their individuality and autonomy.
The First Amendment of the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” This freedom represents the essence of personal freedom and individual liberty. It remains vitally important, because freedom of speech is inextricably intertwined with freedom of thought.
“First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end,” warned Justice Anthony Kennedy in Ashcroft v. Free Speech Coalition (2002). “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”
There are numerous reasons why the First Amendment has a preferred position in our pantheon of constitutional values. Here are six.
Self-governance and a check against governmental abuse
Free speech theorists and scholars have advanced a number of reasons why freedom of speech is important. Philosopher Alexander Meiklejohn famously offered that freedom of speech is essential for individuals to freely engage in debate so that they can make informed choices about self-government. Justice Louis Brandeis expressed this sentiment in his concurring opinion in Whitney v. California (1927): “[F]reedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”
In other words, freedom of speech is important for the proper functioning of a constitutional democracy. Meiklejohn advocated these ideas in his seminal 1948 work, “Free Speech and Its Relation to Self-Government.” Closely related to this is the idea that freedom of speech serves as a check against abuse by government officials. Professor Vincent Blasi referred to this as “the checking value” of free speech.
Liberty and self-fulfillment
The self-governance rationale is only one of many reasons why freedom of speech is considered so important. Another reason is that freedom of speech is key to individual fulfillment. Some refer to this as the “liberty theory” of the First Amendment.
Free-speech theorist C. Edwin Baker writes that “speech or other self-expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual.” Justice Thurgood Marshall eloquently advanced the individual fulfillment theory of freedom of speech in his concurring opinion in the prisoner rights case Procunier v. Martinez (1974) when he wrote: “The First Amendment serves not only the needs of the polity, but also those of the human spirit—a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity.”
The search for truth and the ‘marketplace of ideas’ metaphor
Still another reason for elevating freedom of speech to a prominent place in our constitutional values is that it ensures a search for truth.
Justice Oliver Wendell Holmes expressed this idea in his “Great Dissent” in Abrams v. United States (1919) when he wrote that “the ultimate good desired is better reached by free trade of ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This language from Holmes led to one of the most pervasive metaphors in First Amendment jurisprudence—that of the “marketplace of ideas.”
Mill warned that truth sometimes doesn’t triumph over “persecution.”
This concept did not originate with Holmes, as John Milton in the 17th century and John Stuart Mill in the 19th century advanced the idea that speech is essential in the search for truth in their respective works, “Areopagitica” (1644) and “On Liberty” (1859). Milton famously wrote: “Let [Truth] and Falsehood grapple, whoever knew Truth put to the worse, in a free and open encounter?” For his part, Mill warned of the “peculiar evil of silencing the expression of an opinion” explaining that “[i]f the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
The marketplace metaphor is helpful but incomplete. Critics point out that over the course of history, truth may not always prevail over false ideas. For example, Mill warned that truth sometimes doesn’t triumph over “persecution.” Furthermore, more powerful individuals may have greater access to the marketplace and devalue the contributions of others. Another critique comes from those who advocate the informational theory of free speech.
“If finding objective truth were the only value of freedom of expression, there would be little value to studying history,” explains Greg Lukianoff of FIRE. “Most of human thought in history has been mistaken about its assumptions and beliefs about the world and each other; nevertheless, understanding things like superstitions, folk medicine, and apocryphal family histories has significance and value.”
Under this theory, there is great value in learning and appreciating what people believe and how they process information. Lukianoff calls the metaphor for the informational theory of free speech “the lab in the looking glass.” The ultimate goal is “to know as much about us and our world as we can,” because it is vitally “important to know what people really believe, especially when the belief is perplexing or troubling.”
Safety valve theory
Another reason why freedom of speech is important relates to what has been termed the “safety valve” theory. This perspective advances the idea that it is good to allow individuals to express themselves fully and blow off steam.
If individuals are deprived of the ability to express themselves, they may undertake violent means as a way to draw attention to their causes or protests. Justice Brandeis advanced the safety valve theory of free speech in his concurring opinion in Whitney v. California (1927) when he wrote:
Those who won our independence believed . . . 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.
Free speech has also been construed to promote the virtue of tolerance: If we tolerate a wide range of speech and ideas, this will promote greater acceptance, self-restraint, and a diversity of ideas.
Freedom of speech is closely connected to freedom of thought, an essential tool for democratic self-governance.
Lee Bollinger advanced this theory in his 1986 work “The Tolerant Society.” This theory helps explain why we should tolerate even extremist speech. As Justice Holmes wrote in his dissent in United States v. Schwimmer (1929), freedom of speech means “freedom for the thought that we hate.” This means that we often must tolerate extremist speech. As Chief Justice John G. Roberts, Jr. wrote in Snyder v. Phelps (2011), we don’t punish the extremist speaker; instead “we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Freedom of speech holds a special place in American law and society for many good reasons.
As Rodney Smolla writes in “Free Speech in an Open Society,” “[t]here is no logical reason . . . why the preferred position of freedom of speech might not be buttressed by multiple rationales.” Freedom of speech is closely connected to freedom of thought, an essential tool for democratic self-governance; it leads to a search for truth; it helps people express their individuality; and it promotes a tolerant society open to different viewpoints.
In sum, it captures the essence of a free and open society.