February 27, 2012 – Essay #6 – Amendment I: Congress Shall make no law….abridging the freedom of speech – Guest Essayist: Andrew Langer, President of the Institute for Liberty
Congress shall make no law… abridging the freedom of speech.
In our free republic, fewer rights are more cherished, or more important, than those enumerated in the First Amendment. It is the hallmark of a free society that the people can speak their minds without fear of retribution from the government or other citizens. Fundamentally, there are always two questions that accompany any dissection of free speech rights: what is their seminal role in our society (ie, why do we have them?), and what are the limits to free speech?
People say things with which we might vehemently disagree. They may make us angry, they may make us outraged. And the feeling might very well be mutual. Yet both their speech, and your own, are equally protected under the US Constitution. For the United States, this creates a true marketplace of ideas. A marketplace that has the benefit of allowing ideas that are reasoned, thoughtful, and valid to take hold, while ideas that simply aren’t (reasoned, thoughtful, or valid) to wither and die.
It is the latter that is perhaps free speech’s greatest asset in our society. Justice Louis Brandeis wrote that, “sunshine is the best disinfectant,” and this is especially true when it comes to speech that, were it outlawed, would fester or become cancerous when kept behind closed doors. In fact, when you look at societies within which free speech was outlawed, when those societies ultimately moved towards freedom, the forces of hate simply exploded on the scene, because for so long there had been no open debate or airing of the stilted beliefs of extremists groups.
In the US, we want people with the most hateful, horrible ideas to be able to say them, loudly and publicly. That way, we can not only challenge them directly (if we want), but we know which people to avoid, if we want. It’s as though they’ve put on the brightest, most-garish sign around their neck, saying, “AVOID ME,” and we’d be wise to heed their warnings.
Just as important, however, are the limits to those free speech rights. It is one of the most basic hallmarks of our society that the exercise of rights is only justly limited by their direct and harmful impact on others. In other words, I may have the right to swing my hands around wildly, but that right ends at the point where my hands meet someone else’s nose.
Though the adage still prevails that “sticks and stones may break my bones, but names can never hurt me,” the truth is that words can and do hurt—and the law has made several important carve-outs for speech that is not protected by the 1st Amendment.
One of the most basic carve-outs is for speech that is considered defamatory—which, in laymen’s terms, is essentially knowingly spreading falsehoods about a person for the purposes of harming that person’s reputation—destroying a person’s personal life or ability to make a living. Other restrictions are placed on speech that works to incite violence, or immediate wanton lawlessness—the concept that someone can neither work to provoke people to an immediate riot, or, likewise to yell “fire” in a crowded theater. Commercial speech, and speech over the public airwaves, can also be regulated—generally under the concept that people cannot make false claims about the goods that they sell, and that because the government assigns space on the public airwaves, the government can prohibit certain kinds of content from being broadcast if it can be deemed offensive.
But by that same token, one of the most controversial debates over free speech today if found in the realm of whether or not corporate interests have free speech rights in the same manner that individuals do. The Supreme Court ruled in their well-known Citizens’ United decision that, in point of fact, corporations do have these rights—a decision that many progressives have decried, and are attempting to undo.
Should they succeed, it would create a very dangerous situation—not only because these corporations are taxed and regulated very similarly to individuals (and, in some cases, more stringently), and therefore ought to be able, as affected entities within a society, to speak out on their own behalf, but many corporate institutions serve valuable purposes within our civil society.
If we fail to extend free speech protections to corporations, what is there to prevent an angered government, upset with a news company’s coverage of their actions, from shutting down that news organization’s business? While some might argue that the government would be prevented from silencing the individual journalists within that organization, should the government succeed in closing down the corporation’s tools, the journalists will have been silenced.
Dissent is the hallmark of any free society—and whether that dissent comes from individuals or corporations, it is an essential element in civil discourse. As a people we require free speech to allow good ideas to prevail, and bad ideas to be defeated.