Free Speech: Just a Recent Fad?

Did you know that free speech wasn't really valued in the United States until the 1960s? Hopefully you didn't just say "yes" to that question. But if you did, I can understand why: Ever since the infamous "Innocence of Muslims" video surfaced on YouTube and was used as an excuse to kill Americans abroad, some academics have taken to making that very case on the Internet and in print.

This is a meme that needs to be stopped dead in its tracks. I've heard the "America only started loving free speech in the '60s" argument before from academic friends, and Stanley Fish delivered a version of it in a recent diatribe at an Intelligence Squared debate I attended in New York City. Here's the video. At the 1:25 mark, Fish calls our national appreciation of free speech "a product of the last 35 years" —— in other words, America's love for the First Amendment blossomed in 1977, just like our love for Star Wars and ABBA. Given that he then cited New York Times v. Sullivan (1964), and calls it a terrible decision (I guess he would prefer it if politicians could easily sue their critics?), I'll assume he means the '60s but had not updated his math since writing his 1994 polemic against free speech.

But University of Chicago law professor Eric Posner made this argument most explicitly last week in a column for Slate.

Posner writes:

The First Amendment earned its sacred status only in the 1960s, and then only among liberals and the left, who cheered when the courts ruled that government could not suppress the speech of dissenters, critics, scandalous artistic types, and even pornographers.

This is a bold statement. But in a piece that jumps back and forth between understanding that free speech and the First Amendment are not precisely the same thing and conflating the two, Posner strives to make a point that goes something like this: "Free speech is overvalued, which is stupid because the First Amendment wasn't even a big deal until recently."

In this, the second installment in my attempt to address the recent academic backlash against freedom of speech, I'd like to take on this strange little argument.

(My first piece, posted last week, pointed out that Posner's response to the "Innocence of Muslims" violence ignored the fact that all of us are guilty of "blasphemy" by someone's definition. The First Amendment's guarantee of freedom of speech, religion and conscience makes it at least possible for a genuinely diverse society to coexist peacefully, serving as an answer to the bloodshed of the religious wars that wracked Europe in the 16th and 17th centuries.)

First of all, it's important to get a sense of the history surrounding freedom of speech. Appreciation for freedom of expression —— and the struggle to attain it —— stretches back centuries, not decades. Advocating for anything resembling the freedom of speech we enjoy today has been a dicey proposition throughout most of world history, which has been dominated by dictatorships, oligarchies, monarchies, and theocracies, none of which were too keen on dissent.

Nevertheless, almost as soon as the argument for freedom of speech could be made to a mass audience, it was. Thinkers as esteemed as John Milton (of Paradise Lost fame) were making impassioned pleas for the value of freedom of speech (in this case, in the form of freedom of the press) going as far back as 1644 —— back when people had to risk losing a hand or their head for speaking out against the crown. Happily, Milton was not alone in making the case that a free press is essential to the basic rights and dignities of a civilized people.

And of course, freedom of inquiry was recognized as essential in scientific circles. As scientific innovation gathered steam, questioning established dogma went from something that could get you locked up (remember Galileo?) to a sacred right claimed by scientists as necessary to better understanding the nature of the universe.

This esteem for free and open discourse made possible the Enlightenment, a period that saw startling scientific and philosophical advances due in large part to the fact that thinkers did not have to worry (or at least did not have to worry as much) about arrest, torture, or death just for exploring new ideas.

All this happened before there even was a United States, a First Amendment, or, really, anything that remotely resembles the world we live in today.

Enter America.

America's founding fathers revered free speech so much they gave it protection within an amendment to one of its, yes, sacred documents, the Constitution of the United States of America. While it took a long time until many of the ideals promised in our founding documents came close to being realized, these were considered sacred ideals nonetheless. Also, keep in mind, that it was not until the passage of the 14th Amendment in 1868 that the First Amendment even applied to the states; it was only seen as binding the federal government before then. Even before then, however, the values embodied in the First Amendment held great moral and popular force.

Nobody explains this better than constitutional historian Michael Kent Curtis in his masterpiece "Free Speech, 'The People's Darling Privilege': Struggles for Freedom of Expression in American History." Curtis shows how in the early 19th century, free speech was often maintained in the United States through popular sentiment. Shameful incidents like John Adams' Alien and Sedition Acts were very quickly considered to be, well, shameful. And attempts to silence, for example, abolitionist speech in the North were pushed back not because of the legal strength of the First Amendment or the popularity of abolitionist causes, but because of a deeply—held belief in the importance of freedom of speech. While quotes from Thomas Jefferson and James Madison in support of free speech are well—known, a favorite quote of mine comes from Frederick Douglass:

"Liberty is meaningless where the right to utter one's thoughts and opinions has ceased to exist," said Douglass on December 10, 1860 inside Boston's Music Hall. "That, of all rights, is the dread of tyrants. It is the right which they first of all strike down. They know its power. Thrones, dominions, principalities, and powers, founded in injustice and wrong, are sure to tremble, if men are allowed to reason... There can be no right of speech where any man...[is] compelled to suppress his honest sentiments. Equally clear is the right to hear. To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker."

I could go on like this for quite some time and touch upon the writings of some of history's greatest thinkers such as Voltaire or John Stuart Mill, but I think you get the idea. Anyone that tries to argue that reverence for freedom of speech is just some recent cultural prejudice we've developed either doesn't know the history very well or is trying to put one over on you.

But, OK. Let's take Posner's premise and make it as artificially narrow as I'm sure he would like.

Is it true that the First Amendment did not really become a powerful legal force in the United States until the 1960s? Not really. The First Amendment began its legal ascendancy in fits and starts out of the horrible abuses of the Espionage Act passed during World War I to root out radicals, pacifists, Bolsheviks, and anybody who could arguably be considered hostile to the government. It was around this time that famous jurists like Learned Hand and Supreme Court justices like Louis Brandeis began to establish the First Amendment's legal power.

It is true that the Supreme Court's pre—WWI decision in United States v. Cruikshank (1876) intentionally misinterpreted the 14th Amendment so as not to apply the First Amendment to the individual states. But in its 1925 decision in Gitlow v. New York, the Supreme Court "incorporated" the First Amendment into the protections of the 14th Amendment, meaning the First Amendment for the first time legally applied to the states.

Within a couple of decades, the Supreme Court protected the right of newspapers to be free from "prior restraint," even if they were publishing what could be considered hateful material; defended many of the rights of political radicals; and even went so far in the middle of World War II to say that the United States could not, because of the First Amendment, require students to pledge allegiance and salute the flag.

Indeed, if there was ever a claim that people (or courts) before the 1960s did not consider free speech to be sacred, read the Court's 1943 opinion in West Virginia Board of Education v. Barnette. In his stirring majority opinion, Justice Robert Jackson reminds us that "freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

In yet another, more recent opinion piece, a different academic pointed out that in the 1950s the Supreme Court allowed for the prosecution of members of the Communist Party and a law that banned racially offensive "group libel." This is true. But what the op—ed doesn't mention was the fact that this is also the same decade in which the Court decided that on college campuses, students and faculty enjoy especially robust academic freedom and, most notably, that the First Amendment forbids the government from banning blasphemy.

The way I was taught constitutional law, the 1950s were seen as a period that included some First Amendment backsliding in the shadow of the Red Scare, but that the move toward more protection for speech had begun long before then and resumed soon after. Yes, many of the great free speech decisions were handed down in the 1960s, but to say that they were only popular among liberals, and to treat the principles that underlie these decisions as a recent fad, is to wish away an awful lot of both world and American history.

The attempt to treat the history of freedom of speech in this country dismissively is a bizarre one at best and a dangerous one at worst. It seems as though these critics look back at some of the darkest days in American history with some sense of nostalgia. Does anybody really wish that the government had power to determine who the political radicals are and round them up? How do you think Occupy Wall Street would fare under those rules? Likewise, does anybody really think that people should face jail time for swearing, as they did at the turn of the 20th century? Or for sharing information about birth control, or, for that matter, for harshly criticizing the government or individual politicians? Do people think, for example, that their brother's secret stash of Playboy should, if discovered, land him in jail, get him sued, or otherwise put him at the mercy of the state?

In some academic circles, there exists a kind of tiresome derision for the idea that we've ever made progress on almost anything. But I will say this: America's welcoming of freedom of speech as a popular right, and the eventual incorporation of this welcoming into law so that free speech is the rule and not the exception, is real progress.

To conclude, let's answer this false narrative of free speech being a relatively recent and somewhat shallow fad by replacing it with a real one:

Freedom of speech has always been considered of value in any society that relies on the people to elect their leaders. And there have always been those, like me, who see freedom of speech as a universal human right. We understand that freedom of speech offers progress, peace, and the potential to resolve disputes with words rather than bullets, bars, or chains, and we accept that if the cost is occasional offense, well, that's a small price to pay.

At the same time, however, there are always people on the other side who believe free speech is a nuisance and impediment to their conception of an ordered society, a moral society, or to the good that raw government power can achieve. These critics often come in two types: first, those who are either in favor with, beholden to, or part of those holding the reins of power; and second, those who believe that moral, spiritual, and philosophical issues can fairly be resolved by some special class of people, be it of judges, government officials, or, yes, academics.

Given that "those who think they know better" often have greater hostility to freedom of speech than the masses they wish to save from themselves, it should not come as a particular surprise that some of these voices against free speech arise out of higher education. Yet the great irony in this is that our colleges and universities should be places where people live the reality of the creative, artistic, and scientific potential that is unleashed by free and open expression. 

At the very least, academics should have the common sense to realize that if the government were to suddenly abandon not just freedom of speech but also the Establishment and Free Exercise clauses of the Constitution — as passage of the kind of blasphemy law that would allow the punishment of religiously disrespectful speech would require — such a law would quickly be turned upon them. And then, of course, you would find within the academy a sudden, dramatic rediscovery of the sacred value of free speech.