Should all of our fellow Americans enjoy the right to free speech?
Tomorrow, we as a nation will have 242 years under our belt, and I’m happy to report that after nearly a quarter of a millennium, most of us continue to answer “yes" to this important question. But this outcome was hardly inevitable. For much of the last century, political forces in our nation, most of them on the political right, fought to make sure they didn’t.
They repeatedly lost. Could Americans be forced to salute the flag? Kept from joining the Communist Party? Prohibited from protesting the Vietnam war in school? Denied the ability to use swear words, or to look at “indecent” publications? No, no, no, and no.
Yet despite this record of losses, an increasing number of thought leaders on today’s political left now appear to be talking themselves into launching their own long war against the very First Amendment principles that enabled them to argue for the societal changes they so value.
For example, a front-page article in Sunday’s New York Times was titled “How Conservatives Weaponized the First Amendment.” The story quotes a number of left-leaning figures, including feminist scholar Catharine MacKinnon and consumer advocate Ralph Nader, who signal their frustration with recent court cases protecting conservative speech.
Another academic cited in the article, Georgetown Law professor Louis Seidman, recently made waves in legal circles with a forthcoming law review article whose title asks, “Can free speech be progressive?” He asserts, “The answer is no,” lamenting that progressives “just can’t shake their mindless attraction to the bright flame of our free speech tradition.”
Mindless? The modern era of First Amendment jurisprudence turns 100 this year. Regardless of your political persuasion, it’s awfully hard to argue that the United States of 2018 is less progressive than it was in 1918—a year in which universal women’s suffrage, for instance, was still two years away.
Those on the left who argue that it’s time to jettison our nation’s uniquely liberal conception of free speech are making a grievous mistake, but not a new one. British philosopher John Stuart Mill identified this error in his famous 1859 tract On Liberty, and his observation is as accurate now as it was the day he wrote it.
“All silencing of discussion is an assumption of infallibility,” wrote Mill. “[W]hile every one well knows himself to be fallible, few think it necessary to take any precautions against their own fallibility, or admit the supposition that any opinion of which they feel very certain, may be one of the examples of the error to which they acknowledge themselves to be liable.”
The underlying assumption of the new First Amendment critics is that it is self-evident that progressive positions (whatever those may be) are correct. Therefore, if the application of free speech principles makes accomplishing their aims more difficult, it’s freedom of speech that is the problem. There can be little doubt that Anthony Comstock, Joseph McCarthy, and the myriad other right-leaning censors of the past felt the very same way when the ideals of free speech got in the way of their own plans to “improve” American society.
Censors of all stripes worry that without proper guidance and regulation, our society might make the “wrong” choices, as determined by, well, them. But policies adopted under conditions where all sides have a right to be heard carry the legitimacy they do precisely because free discussion and debate increase people’s confidence in the conclusions that are ultimately reached. As Mill also wrote, “Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action.”
Whether in science, in a criminal trial, or in society at large, there is no reason to trust a conclusion that was reached without access to and consideration of all of the relevant information—the very information that censors wish to suppress.
Furthermore, the idea that freedom of speech has ceased to be of use to those on the political left simply doesn’t comport with reality. Within just the last year, the Foundation for Individual Rights in Education used the First Amendment to successfully vindicate the rights of college students in Iowa to advocate for marijuana legalization, and in Illinois, to pass out flyers attacking capitalism. Was this not helpful to progressive causes?
Sometimes those seeking recourse through the First Amendment are not discernibly members of either the right or the left; sometimes, the expression at issue isn’t political at all. For example, in the past few years, the Supreme Court has struck down laws that restricted the kinds of signs that could be placed in public areas and that provided for the punishment of people who pretend to be decorated veterans for their own personal gain.
What’s more, the fact that the logic of freedom of speech can be used by both sides, or that your side can’t win them all, is hardly a new discovery. The principles are viewpoint-neutral. They can be utilized by all of us, regardless of our ideological bent. In the campus context, for example, FIRE uses the same legal arguments to defend a student’s right to pass out flyers about animal abuse as we do when defending a libertarian student group trying to hand out copies of the Constitution.
Especially in today’s hyper-polarized politics, labeling an idea or proposition as merely a weapon for, or a conspiracy by, the other side is akin to giving partisans a permission slip to turn off their brains. It’s an easy, expedient measure that gives your “team” one less thing to think about in a world deluged with news and information. It’s much harder to step back and consider that what you see as a “sword” in the hands of your opposition—a metaphor sometimes used by the left-leaning thinkers discussed above—might look a whole lot more like a shield to the other side.
Trying to see the argument from the other side is hard work. But then, governing a heterogeneous nation of more than 300,000,000 is hard work, and in our political system, we all share in that responsibility. When asked on the last day of the Constitutional Convention what kind of government the Framers had produced, Benjamin Franklin famously replied, “A republic, if you can keep it.” The First Amendment, and the culture of free speech for which it serves as a touchstone, is a key part of what makes our great experiment work.
If we intend to keep our nation going into its 243rd year and beyond, we had better continue to avoid the temptation to forcibly silence our opponents rather than persuade them to our side. On this Independence Day, FIRE pledges to continue its work to ensure that the promise of free speech for all continues to be a reality—regardless of our political disagreements.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...