What is Free Speech?

I’m going to give you a moment to come up with a definition for Free Speech in your head. Don’t go on until you’ve defined it.

I’ll give you mine, now, but to be fair, I’m cheating. I’ve read a bunch about it before sitting down to write this article.

Free Speech is a right people have to say what they think or perform actions that contain meaning without fear of reprisal from the government, except in cases where that same speech would likely threaten imminent harm.

Looking back at that definition I already see a glaring problem. Part of it is very, very subjective. When is threatened harm imminent? When is the speech likely to cause it?

The problem with vague laws is that they require interpretation, both by the judicial system and by the public at large. If a law is subjective, we’re going to have trouble enforcing it, and we’re going to have trouble not enforcing it when such a situation is desirable.

Luckily, we don’t have to use my definition. Our primary legal understanding of Free Speech stems from the First Amendment to the Constitution, which states that: Congress shall make no law . . . abridging the freedom of speech.

Well, we might be in trouble. While the First Amendment nicely explains that Free Speech is protected, it fails to explain what Free Speech is. Perhaps most glaringly, it fails to note any exceptions but also fails to indicate that there can’t be any exceptions. Unfortunately, we’re going to have to interpret.

So, now we get to pretend to be a Supreme Court Justice. Since the Constitution is silent on what exactly Free Speech is, we’re going to have to develop a process for figuring that out for ourselves.

First, we’ll see what the framers of the Constitution talked about while writing the Bill of Rights, and while advocating for its passage.

If we don’t find anything there, we’ll see how framers, many of whom became early presidents or other important political figures, treated Free Speech while they were in office.

And, finally, if we still don’t have any evidence, we’ll start looking at case law, seeing what previous courts have determined about Free Speech.

One would think that the framers would have said something about Free Speech while trying to get the Bill of Rights passed. But, the Bill of Rights was nowhere near as contentious as the Constitution itself, and the promise of the Bill of Rights itself helped the Constitution get ratified.  And, while both documents were controversial, Free Speech was not one of the issues that anyone seemed to feel the need to attack or defend at the time.

So, how did the early presidents treat Free Speech?

Poorly, as it would turn out.

President Adams would sign the Alien and Sedition Acts into law, which were nominally meant to keep Americans from supporting the French during the Quasi War with France, but were actually politically motivated. Adams was a Federalist and his staunch rival Thomas Jefferson was a Democrat-Republican and had served as ambassador to France during the American Revolution. Democrat-Republicans were more likely to have softer feelings towards France, but also to criticize the American government for its behavior during the war. After these acts were passed, these actions would result in fines or imprisonment, or both.

When Jefferson was elected president, he repealed most of the acts. Later Supreme Courts would rule that those laws were unconstitutional and would have been overturned if they existed today.

So, once again, we’re left without a lot of guidance from the framers, which means we have to move on to what the various Supreme Courts have ruled on the subject. Free Speech was not a legal issue, for the most part, until the 20th Century. If the listing on Wikipedia is correct and comprehensive, there have been no less than 151 cases seen by the Supreme Court over various aspects of Free Speech.

These 151 cases have produced 9 principles used by the Supreme Court in evaluating speech and many of these rules have their own sub-rules.

It’s become a complicated, messy, interpretive matter.

But, I think it’s worthy of more consideration, especially as we enter into an era where more people are calling for hate speech laws, and college campuses are increasingly incorporating speech codes into their codes of conduct. It’s disappointing that some of the most open places in society are shifting to become more authoritarian and censuring. 1

Ultimately, even speech we don’t personally like is going to be protected by the Frist Amendment most of the time. When it comes to the consideration of hate speech, whose critics sometimes correctly and sometimes incorrectly try to claim that it is inciting violence, the courts apply a two-step process called the Brandenburg Test.

Speech may only be prohibited if

  1. The speech is “directed to inciting or producing imminent lawless action,” AND
  2. The speech is “likely to incite or produce such action.”2

The two key words here are “imminent” and “likely.” While both are subjective, their use suggests that the vast majority of what is considered to be hate speech would still be protected under the Constitution.

And while we may not like that, and while we may want to live in a kinder, gentler society, I want to make the case that suppression isn’t the right route here.

If you suppress an idea, you lend it a degree of legitimacy, because you fail to disprove it. The best way to get rid of racist ideas is to expose them in direct contrast to good ideas. If suppressed, hate speech will continue to thrive, because no one is making the case for why it is wrong.

Part of the reason that we should allow hate speech is so that people who might fall under its sway in the private forum might be convinced otherwise in the public forum, which can’t happen if hate speech is never allowed into the public forum in the first place.

It’s like a vaccination—you have to get a little bit of the virus now so that you don’t get a lot of it later.

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  1. To see more cases of free speech suppression on campus, click here.
  2. Source