Thinking It Through: Defending the nation of free speech (part II) – VVdailypress.com

By Richard Reeb| For the Victorville Daily Press

Last week, I cited an article in the National Review by Charles C.W. Cooke lamenting the continuing liberal attack on freedom of speech, while I argued that speech has a purpose and therefore limits. Cooke identifies himself as a libertarian and, in so doing, deplores censorship, and, in other writings, cautions against government restrictions on the ostensibly private Big Tech oligopoly that also censors speech.

My quarrel with Cooke is not his argument for free speech but his undeserved tribute to the unprincipled liberalism that gave rise to the idea of unlimited free speech. Blessing (not merely tolerating or enduring) the speech of our countrys enemies is neither wise nor good. When liberals successfully argued for such anti-American speech, they effectively licensed it and, thus, legitimized the now central ideas of the political party that wants to change America from a land of constitutional government and individual rights to an overweening government that treats citizens like children in need of constant care.

For all of that, I share Cookes concern for freedom of speech, which, as he rightly demonstrates, is under serious and widespread suppression. Limiting speech is a perilous enterprise, for the same legal limits placed on alleged miscreants can return to plague the inventor, to use an old and wise saying. That is, the same law that shuts down critics may well, following a losing election, be used against those who made the law. In short, genuine impartiality is, to understate the challenge, very difficult to achieve.

The prime example is the nations first attempt at suppressing allegedly seditious speech in 1798. Passed by a Federalist-dominated Congress and signed by Federalist President John Adams, the law literally proscribed so-called hateful speech intended to bring federal government officials into disrepute.

Sound familiar? It should, as that is precisely what cancel culture is at college campuses, corporate offices, media outlets and now government agencies in an untethered crusade against hate speech, meaning speech that allegedly righteous liberals and progressives find offensive. That can go both ways.

No one was more critical of the old Sedition Law than James Madison, known as the Father of the Constitution, in his Report on the 1799 Virginia Resolutions against the law. Unlike his long-time friend, Thomas Jefferson, who condemned that law simply because the First Amendment denied Congress the right to abridge freedom of speech and press (leaving such matters with the states), Madison more fundamentally argued that it threatens that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.

Madison also noted that no persons or presses are in the habit of more unrestrained animadversions on the proceeding and functionaries of the state governments than the persons and presses most zealous in vindicating the act of Congress for punishing similar animadversions on the government of the United States. Madisons lofty speech is clear enough, I trust, that the Federalists were essentially arguing for, to use todays lingo, freedom of speech and press for me but not for thee.

The one saving grace of the Sedition Act, if there was one, was its provision that truth was a valid defense for the accused, as Alexander Hamilton pointed out. But that hardly mattered as the only journalists charged or convicted were Republicans. What happened next is revealing.

The Republicans swept the elections of 1800 and the new President Jefferson pardoned all the offenders. That was necessary, he believed, even though the Act expired when he took office. No sooner did the change in party control occur than one Harry Croswell was charged under New York state law with defaming President Jefferson! He was easily convicted because, under the states law, originally passed in colonial times, truth was no defense at all.

But the final twist came when Hamilton joined Croswells defense team and explicitly argued that truth should be a defense. I never did think that the truth was a crime, he said. Then, at the very next session of the New York state legislature, a bill was enacted to ensure that truth was a defense against accusations of libel or slander. That changed with New York Times v. Sullivan, a subject for a future column.

One final note: The original Constitution did not, of course, include the Bill of Rights, as Madison argued that it would be mere parchment and Hamilton that the state of public opinion was a more powerful force in this respect. The constitutional guarantee did not prevent Congress from passing the Sedition Act, which was discredited not by a judicial decision, but by the results of the next election.

Richard Reeb taught political science, philosophy and journalism at Barstow College from 1970 to 2003. He is the author of Taking Journalism Seriously: Objectivity as a Partisan Cause (University Press of America, 1999). He can be contacted at rhreeb@verizon.net.

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Thinking It Through: Defending the nation of free speech (part II) - VVdailypress.com