FREE SPEECH HAS BECOME A POLITICAL WEAPON

  

In our divided nation, no topic is more important and more misunderstood than free speech. This basic liberty is frequently abused when political actors of every persuasion only support free speech that aligns with their ideological views. These same actors reject acceptable speech that supports their political opponents.

In my experience, only the American Civil Liberties Union (ACLU) has been consistent in bringing legal action to ensure that Nazi hate groups and adult pornography receive the same free speech protection as theologians and members of Congress. The ACLU believes the First Amendment means what it says, "Congress shall make no law... abridging the freedom of speech."

Prior to Donald Trump’s ascendancy, the most vocal adherents of free speech were civil rights advocates. Today, groups underwriting everything from self-serving identity politics on college campuses to those supporting right-wing, white nationalism have weaponized free speech for their own purposes.  Quarrels over free speech have become nothing more than ideological fights “for control of the argument.”

This commentary will tackle two aspects of the complex, and misapplied basic right of free speech. First, I will borrow from a recently published treatise by the historian Fara Dabhoiwala, What is Free Speech? The History of a Dangerous Idea, to explain how our nation developed its version of free speech. Second, I will examine whether there is a path forward to reconcile the contradictory goals of (1) “absolute” free speech with (2) some degree of censorship for the common good.

Dabhoiwala begins his work by telling us, “The real history of free speech has the potential to illuminate our current predicaments in surprisingly direct ways.” He believes that the American version of free speech cannot be understood without studying early Congressional legislative debates and Supreme Court interpretations of both the Bill of Rights and the Fourteenth Amendment.

Alexander Hamilton and his followers rejected the definition of free speech “with guardrails” adopted during the French Revolution and later, most of Europe. These fledgling democracies decided that this new toleration of free speech should not extend to “opinions contrary to human society or to those moral rules which are necessary to the preservation of civil society.” In Europe and Great Britain this meant that laws were passed “against spreading false news” and which prohibited “infamy and absurdity.”

In America, however, Hamilton won the Congressional debate calling for an absolutist, uncensored definition of free speech. In this context, the Bill of Rights was designed to protect against overreach by the federal government, not the explicit guarantee of individual rights it has become.

While Ambassador to France, during the Bill of Rights debate, Thomas Jefferson, an admirer of the French Revolution, had sent to James Madison an alternative draft that carved out important exceptions to free speech. He suggested language that censored “false facts affecting injuriously the life, liberty, property, or reputation of others, or affecting the peace of the confederacy with foreign nations” from free speech. However, by the time Jefferson’s version arrived in America, the Bill of Rights was a done deal with no further debate.

The next unexpected turn was that as each of the new states crafted their own constitutions, most adopted the more limited European model and rejected the absolute wording in the Bill of Rights. In Pennsylvania, a much older Benjamin Franklin would write, “For my part, I shall cheerfully consent to exchange my liberty for abusing others for the privilege of not being abused myself.” American free speech followed two paths, one federal and one state mandated.

In 1925, the Supreme Court issued a landmark opinion, Gitlow v. New York, that applied the Fourteenth Amendment of 1868, to free speech. Individual states could no longer “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The First Amendment now applied just as rigorously to the states, based on the post-Civil War Fourteenth Amendment that arguably had nothing to do with free speech.

Today, neither our federal nor state governments actively censor viewpoints, however inflammatory. By contrast, the UK and European countries have not hesitated to criminalize hate speech, or to extend protections against speech that “hurts peoples’ feelings” or is judged to be “false” by some appointed official.

The ongoing question for Bill of Rights experts is whether absolute free speech should be tempered with reasonable censorship designed to protect the public good.

One stated aim of hate-speech laws is to promote social harmony. Research conducted by The Economist shows that in Great Britain they have done the opposite. Moreover, laws that give discretion to elected officials in limiting speech are an invitation for abuse. Illiberal governments use such tactics to expand their authoritarian regimes. In addition, laws that prohibit “giving offense” are difficult to enforce and stifle open democratic debate.

The Economist concludes that, “When nations have too much power over speech, sooner or later they will use it for the wrong reasons. Noisy disagreements are better than enforced silence. People must learn to tolerate each other’s views.”

This brings us back to the American absolute model of free speech, which appears to be more democratic.  Unfortunately, American free speech cannot stand when political actors weaponize it for their own purposes to win ideological arguments. It can only achieve its original purpose when we all defend speech we don’t like, a difficult ask in tribal America.