Comments on: Free Speech and the American Way – Jewish Journal

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If the Ark of the Covenantthat is, our modern religious views of speechcommands morality in our speech and deference to religious authority and the sovereignty of God, the arc of western legal tradition defends our natural right to speak our mind as sovereign individuals.

Animportant early advocate for the right of publishers to print ideas without prepublication censorship was English poet and politician John Milton. In 1644, before he went blind and later wrote his most famous poems (e.g. Paradise Lost) Milton anonymously wrote a pamphlet entitledAreopagitica (a reference to the ancient Greek hill on which orators freely debated).

Milton asserted that the Roman Catholic Church should not have ecclesiastical veto over public discussion; that readers exposure to a variety of opinions (good and evil) would allow for our human consciences to develop moral virtue; that censorship of the printed word would not alone ensure public morality (as song, dance, and theatre also attracted interest); and that the flourishing of the human mind through reason and rational debate rather than acceptance of authorized ideas argued against state licensing of published thought. Milton promoted the notion that public debate among intelligent minds was best without a partial umpire enforcing consensus or political unity.

Thomas Paine, English-born author of Common Sense (1776), was a key figure in communicating widely to the American public the necessity for revolution to advance religious liberty and to enshrine in writing our human rights to freedom of thought and conscience.

In The Age of Reason Paine theorized inviting, not denying, opinions with which one disagrees. I have always strenuously supported the right of every man to his own opinion, however different that opinion might be to mine. He who denies to another this right, makes a slave of himself to his present opinion, because he precludes himself the right of changing it.

In The Age of Reason Paine theorized inviting, not denying, opinions with which one disagrees.

John Stuart Mill, born in greater London, was a leading politicalphilosopher, economist, and Member of Parliament. He was a powerful advocate for social liberty, believing the struggle against authority is the most conspicuous feature in the portions of history. He believed in the absolute authority of anindividual as sovereign over his own person, and that government may interfere with his life only to protect society. This formed the basis for his famousharm principle, which approved restrictions on speech only to avoid harm to another.

In his essay On Liberty,Mill declared that free discourse is a necessary condition to social progress. Even false opinions are productive and may be corrected through an open exchange of ideas.If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.

Mill assumed good faith and responsible intentions, claiming that unmeasured vituperation, employed on the side of prevailing opinion, really does deter people from expressing contrary opinions, and from listening to those who express them. Debate, not dogma, forces an examination of beliefs in the quest for truth.

Similarly, British writer Evelyn Beatrice Hall penned the oft-quoted principle of many free speech champions: I disapprove of what you say, but I will defend to the death your right to say it.

The First Amendment was subjectto sincere debate among theConstitutional framers.The American Revolution aroused many to promote robust political expression as foundational to democratic values, though several state constitutions formally excluded abusive speech and suggested a duty of morality and civility as the basis for protectedpolitical speech.

The debate over ratification of the U.S. Constitutionwithin the 13 American states wasfierce, and unanimity was secured only upon the passing of the Bill of Rights, the first of whose Constitutional Amendments proclaims: 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.

Nevertheless, malicious writings seen as threats to the Federal government wereprosecuted under the Alien & SeditionAct of 1789. The denial of Habeas Corpus in 1861 under President AbrahamLincoln during the Civil War also withstood constitutional challenge. During wartime, Americans tend to prioritize security even over cherished liberty.

With rare exceptions, however, the U.S. Supreme Court has moved over time to limit government prior restraint upon or control over the content of citizens speech.

In 1914, Supreme Court Justice Louis Brandeis acknowledged dismaying speech but wrote that sunlight is the best disinfectant. He believed that transparent airing of bankrupt or error filled views should not be hidden but exposed. In 1927, he noted that the remedy to falsehood and fallacies.is more speech, not enforced silence.

In 1919, Justice Oliver Wendell Holmes, Jr. affirmed the governments prosecution of a socialist leafleteer who opposed the World War I draft, based on the standard of a clear and present danger to the recruitment and enlistment of troops. The Supreme Court much later narrowed this test to require proof of an imminent lawless action such as a public riot. However, in a famous dissent that same year, Holmes also opined that an anti-war anarchist must be allowed to compete in thefree trade in ideas.

In 1937,Justice Benjamin Cardozopronounced that free speech wasthe matrix, the indispensable condition for nearly every other form of freedom.

At the height of the Cold War, Judge Learned Hand affirmed the prosecution of communist speech as presenting a clear and present danger to the Republic. Today, this ruling is unpopular as too restrictive of political ideas, though the governments banning of online terroristvideos promoting the overthrow of the U.S. government would likely rely on this reasoning.

In an important 5-4 opinion in Cohen v. California (1971), the Court overturned the conviction of a man who wore a T-shirt which read F-the-Draft. The Court limited the fighting words doctrine, rejected the application of obscenity laws to profane speech, re-asserted the protection of offensive speech, and declined the governments argument that it could ban words it deemed unpopular. Justice Harlan summarized: One mans vulgarity is another mans lyric.

This is not to say allspeech isabsolutely protected. The American legal systemhas created numerous categories of speech that can be restricted by time, place and manner, or as conduct, or as lower level or non-speech.

Examples include restrictions on child pornography and obscenity; movie rating codes; defamatory libel and slander; incitement to imminent violence (i.e. taunting another toward suicide); true fighting words;threats to the President; criminal conspiracy; disruptions of courtroom, school, or library decorum; and the breach of neighborhood peace.

The Federal CommunicationsCommission regulates the public airways, the Federal Election Commission regulates election speech, and the Securities and Exchange Commission regulates capital markets salesmanship. Various other aspects of commercial speech are also regulated to demand truth in advertising, including in the sale of food and drugs.

Some defenders of political speech have become more attracted in recent years to a perspective broadly held in Europe, which prioritizes a listeners dignity when harmful speech injures or humiliates. The U.S. tort of intentionalinfliction of emotional distress is a legal path for those who have been psychologically damaged by the weaponization of words meant not to inform, educate, or even advocate, but merely to assault.

Two famous quotes by President George Washington reflect the dual concerns Americans share. First, he was very clear that If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.

However, in his famous letter to the Hebrew Congregation of Newport, Rhode Island, our first President captured the promise ofAmerica to all of its citizens: Everyone will sit under their own vine and under their own fig tree, and no one will make them afraid.

Here Washington seems to hint at the theory that a certain kind of hate speech against a fearful minority violates the democratic nature of our nation.

However, the Supreme Court has to date tended not to favor this legal reasoning and instead has repeatedly ruled across ideological lines in favor of the free speech rights of neo-Nazis upsettingHolocaust survivors in Skokie, Illinois; the Westboro Baptist Church chanters disrupting a private funeral with gay-bashing slogans; desecraters of the American flag; cross burners in front of African-Americans; robe and hood-wearing KKK marchers; and, one suspects soon, Antifa demonstrators wearing black masks.

Sticks and stones may break my bones but words will never hurt me is not true for many citizens. Yes, some speech will hurt, intimidate and damage speech that is intended not to persuade but to attack.

Sticks and stones may break my bones but words will never hurt me is not true for many citizens.

Content moderators are busy censoring disturbing videos from appearing on your Facebook feed, such as cruelty to animals. Those who would regulate or punishupsetting speech argue that First Amendment protections are meant to apply only todecent or civil speech that expresses legitimate ideas.

The tension building in politically correct circles between a robust commitment to freedom of expression and the rising tide of left-wing political advocacy is best seen in the debates within the American Civil Liberties Union. Long advocative of the freespeech rights of the unpopular, the ACLU began to wobble under pressure to prioritize instead a socialjustice agenda. In 2018, the ACLU formally announced new guidelines to prioritize progressive values in evaluating its commitment to advocate for the constitutional rights of speakers who do not meet the political litmus test of its Board and membership.

The debate is therefore joined between the European model, which champions a subjective defense of a listeners right not to be emotionally harmed against the characteristically American idea of protecting speakers expressive rights to independence and individuality.

After the Danish publication of cartoons of the prophet Mohammed and the resultingwide-scaleviolence by Islamists, European governments essentially caved to the sensibilities of their growing minorities and initiatedhate speech criminal prosecutions of newspapers, writers, bloggers, churches, business owners, pubic figures and averagecitizens in a way that continues to shock many Americans.

Compare this to the ability ofAmerican religionists to poke fun attheir own dogma and culture yet remain loyal to their tradition.

The Church of Jesus Christ of Latter-day Saints earned deep admiration for its poise in responding to a decades-long mocking of their faith by putting advertisements in theBook of Mormon Broadway playbill. Youve seen the play, now come to one of our churches to see the difference!

Our American jurists have repeatedly sided with controversial speech, upsetting speech, and politically incorrect speech. In his famous address to the Authors Guild Council of New York in 1953, Justice William O. Douglas stated: Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.

As the Times Square ball drops each New Years eve, revelers follow up their midnight kiss,champagne toast, and signing of Auld Lang Syne (a Scottish poem meaning old times past) with a rousing rendition of My Waythe unofficial anthem of not only brash New Yorkers but also all Americans belting out hopes and determination to fulfill their dreams in the coming year

For what is a man, what has he got, if not himself, then he has not. To say the things he truly feels, and not the words of one who kneels. The record shows I took the blows and did it my way.

The English tradition and the American legal system have developed robust safeguards for individual expression. Political speech in particular is protected, even when it challenges cherished majoritarian ideas. While commercial speech and some other expressions can be regulated, theAmerican way has generally favored the speaker over the listener. In recent years, sensitivities have developed to the point that, at least on college campuses, some younger citizens are increasingly attracted to a European style protection againstharmful speech.

We must ponder whether Americans will continue to protect even deeply disturbing speech in the belief that while the cost can be very high, our freedom of expression is priceless.

Larry Greenfield is a Fellow of The Claremont Institute for the Study of Statesmanship & Political Philosophy.

The Speech Projectis an initiative of the Jewish Journal that brings together some of the most compelling voices from across the political spectrum to address the topic of free speech. In a cultural moment where civil liberties often seem to be under siege, we encourage freedom of expression, independent thinking, and personal choice. The articles, podcasts, books, and other resources youll find here all challenge the growing illiberalism of our time in their pursuit of balance and authenticity.

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