The Meaning of Free Speech

Richard Chen
Jun 13, 2018 · 8 min read
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.

The First Amendment, which protects the freedom of speech, is arguably the most famous part of our Constitution. Yet there are so many misconceptions about free speech, ranging from what its purpose is to what it actually protects.

In this piece we’ll explore the history of free speech before our Constitution, the philosophical principles for why free speech should exist, and how free speech is interpreted in practice.

History of Abuses

There is a long history of abuses to free speech in England prior to the American Revolution. These abuses generally fall into two main categories.

First, prior restraint. Since the invention of the printing press, English law required printers to register for licenses. Submissions for publications went through royal officials who wielded the power to withhold publications they disapproved of. As the English jurist Sir William Blackstone explained during the time, “To subject the press to the restrictive power of a licenser … is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.”

Even though prior restraint through licensing was abolished in England a century before the adoption of the American Bill of Rights, these abuses showed that without strong protections to free speech, those in power could easily influence public opinion and suppress dissident thoughts.

Second, seditious libel. Hundreds were prosecuted and convicted for seditious libel — “the intentional publication, without lawful excuse or justification, of written blame of any public man, or of the law, or of any institution established by law.” Since treason laws were too blunt and cumbersome to use, the Stuart monarchy instead used seditious libel to silence critics of the government.

Consequently, abuses to free speech were fresh on the minds of the Founding Fathers as they drafted the Constitution and the Bill of Rights.

Old White men.

The Values of Free Speech

Free speech serves four principal values:

  1. Advancing knowledge and truth in the “marketplace of ideas”
  2. Facilitating representative democracy and self-government
  3. Promoting individual autonomy, self-expression, and self-fulfillment
  4. Acknowledging the impossibility of a perfect arbiter

Truth

The first value, that speech is for the search of truth, is based on the philosophers John Milton and John Stuart Mill.

Mill’s central argument is that the suppression of opinion is wrong regardless of whether or not the opinion is true. If the opinion is true, then society is denied learning the truth. If the opinion is false, then society is denied the opportunity of reaching the truth when it comes in conflict with error.

The idea of free speech advancing knowledge and truth was later extended into the concept of a “marketplace of ideas.” First proposed by Justice Oliver Wendell Holmes in Abrams v. United States, “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Yet should we expect truth to emerge through the self-regulation operation of a free “marketplace of ideas?” Any more than we’d expect commercial marketplaces to always be efficient or fair?

The main objection to this notion of a “marketplace of ideas” is that markets aren’t always perfect. Speech can have negative externalities, some entity can have a monopoly power over speech, or the distribution of speech can be skewed by unequal speaking power. In these cases, regulation may be justified just like how regulation in economic markets is sometimes justified in the interest of efficiency or distribution. In the “marketplace of ideas,” true ideas ultimately drive out false ideas in the long run, but the problem is that the short run may be very long. [1]

Self-Government

The second value is that free speech is essential to a representative government. Public discourse is a political duty, and all viewpoints should be presented in order to arrive at wise public policy.

In addition to informing and improving public policy, free speech prevents the abuse of power by public officials and promotes political stability by providing a safety valve for dissent. Free speech provides a framework where the conflict necessary to the progress of society can take place without destroying the society.

Some claim that this argument for free speech doesn’t explain why we need speech protections for art, literature, entertainment, and the sciences. Philosopher Alexander Meiklejohn disagrees, stating that these disciplines “help voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express.”

Autonomy

The third value is that free speech upholds the virtues of individual liberty, autonomy, and self-fulfillment. Compared to the self-government argument, such emphasis on self-realization may be a better argument for why free speech protections should extend beyond the political realm to art, literature, entertainment, and the sciences.

Imperfect Arbiter

The fourth value focuses less on the intrinsic value of speech but rather reasons to distrust government in the realm of speech regulation. This is based largely on a distrust of the government to determine appropriate speech and the truth, an awareness of the fallibility of political leaders, and a deeper distrust of governmental power. [2]

Throughout history, the process of regulating speech has been marred with what we now consider to be obvious mistakes, including the banning of numerous great works of art because someone thought them to be obscene. Experience shows that governments are particularly bad at censorship.

More old White men.

First Amendment Jurisprudence

Given the four main principles of free speech, we need to consider how free speech should be interpreted in the law.

Special protection for speech

Should speech have a preferred position to other liberties in the Constitution and thus receive greater protection from regulation than other activities?

In practice, the U.S. is one of the most libertarian countries in the world in its interpretation of free speech. While the Supreme Court has declined to interpret the Fourteenth Amendment to mandate laissez-faire in economic markets, it has interpreted the First Amendment to require a considerable amount of laissez-faire in the “marketplace of ideas.”

Why the double standard? One answer lies buried in the footnote of Justice Harlan F. Stone’s majority opinion in United States v. Carolene Products Co. According to Stone, the First Amendment is very specific in its protection of free speech and thus courts have generally allowed minimal regulation of speech. In contrast, applying the Equal Protection Clause in the Fourteenth Amendment to govern markets, in addition to civil rights cases, would lead to an unconstitutionally vague interpretation of the Fourteenth Amendment.

Absolute versus Balancing

Should First Amendment rights be absolute, or should they be subject to the balancing of competing interests? [3]

The most notable argument in favor of an absolute interpretation of First Amendment rights comes from Justice Hugo Black’s dissent in Konigsberg v. State Bar of California. “The men who drafted our Bill of Rights did all the ‘balancing’ that was to be done. … The creation of ‘tests’ by which speech is left unprotected under certain circumstances is a standing invitation to abridge it.” Legal scholar Laurent Frantz concurs, arguing that balancing would inevitably be too deferential to government judgments or to the prejudices of the predominant political culture and would provide inadequate guidance to decision makers.

Yet Justice Felix Frankfurter rejects this absolute interpretation in favor of a balancing rule in his concurrence in Dennis v. United States. “Absolute rules would inevitably lead to absolute exceptions, and such exceptions would eventually corrode the rules. The demands of free speech in a democratic society as well as [countervailing governmental interests] are better served by candid and informed weighing of the competing interests, within the confines of the judicial process, than by announcing dogmas too inflexible for the … problems to be solved.”

Categorization versus Balancing

If we were to make exceptions to free speech protection, should these exceptions be made through categorization of permissible types of speech, or should we balance competing interests on a case-by-case basis?

Categorization aims to set bright-line rules. Categorization has the benefit of clarity and provides guidance to judges and other government officials. Categorization also curtails the potential manipulative uses of balancing and yields more uniform outcomes across cases.

In contrast, balancing means that the outcome can vary depending on the particular facts and interests of the case. Balancing avoids the risk that categorization could eliminate First Amendment protection for entire types of speech without adequate examination of the bases for such conclusion.

Further Resources

First Amendment law is incredibly interesting and is personally one of my favorites. If you’re interested in learning more, here are my suggested readings:

[1] We can examine this “marketplace of ideas” even further and look at the spectrum from a monopoly to an oligopoly to perfect competition.

On one end, a monopoly on mass media controls all content that’s disseminated to the general public. As philosopher Herbert Marcuse explains, “Under the rule of monopolistic media … a mentality is created for which right and wrong, true and false are predefined wherever they affect the vital interests of the society.”

Somewhere in the middle, an oligopoly means that a few major publications control the source of news. This was certainly true during the 1960s and 1970s when millions of Americans would tune into the voice of Walter Cronkite, the anchorman of CBS Evening News, and a few others every night. Given his power over public opinion, he was often cited as “the most trusted man in America.”

And at other end, fragmentation of media means that every Twitter account can become a source of news. Without a systematic way of fact checking, this can lead into a “post-truth” society such as when Russian bots spread misinformation during the 2016 election.

[2] It’s interesting to note that public trust of the government varies across different countries. In the E.U., people generally trust the government more than corporations; in the U.S. by contrast, people generally trust corporations more than the government. Likewise, European national broadcasting services, such as the BBC, would never appear in the U.S. since public distrust of government media is too high across the entire political spectrum.

[3] This can also be framed under the classic deontological (“absolute”) versus utilitarian (“balancing”) philosophical debate.

Richard Chen

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Partner at 1confirmation

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