Freedom of Speech

The freedom of speech is one of the most important rights a human being can have. It is also one of the most misunderstood. Since the Bill of Rights was passed, the First Amendment has protected Americans’ right to free speech. Yet those protections are constantly evolving. Despite its claims that “Congress shall make no law… abridging the freedom of speech,” the First Amendment has never and will never protect all speech. We have other rights and values that often come into conflict with our freedom of speech, and these interests need to be balanced. Therefore the speech the amendment has protected and not protected has changed significantly over the history of the United States. There is no doubt these protections will continue to evolve in the future. 

As we struggle with the role that free speech plays in our society, it is important to remember why it is such a cherished right, and why, for those very same reasons, limits must be placed upon that right. The reason any society gives its citizens rights is not because rights are good in and of themselves, but because those rights provide a benefit to society. In the case of the freedom of speech, those benefits are apparent. Freedom of speech is necessary in humanity’s pursuit of truth. It’s necessary for any group of people to effectively govern themselves.

While this is ground that is well trod over, it bears repeating because it also illuminates some of free speech’s limits. We have free speech so that we can find the truth; therefore lying and deliberate misrepresentation are not protected speech. This is why perjury and fraud are crimes, and defamation can result in civil lawsuits. 

Of course, truth is in the eye of the beholder, and there is a very fine line between libel and legitimate criticism. If you are not, you should become familiar with the New York Times v. Sullivan case, the most important First Amendment case in the country’s history. No other case illustrates just how much of a two-edged sword the freedom of speech really is. On its surface, it’s a victory for those who would choose to criticize the government. The case established that public figures would have to prove “actual malice” in libel suits, “that is, with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” It protects the ordinary citizen from government retaliation for expressing their views.

However, it can also be argued that the Sullivan case is also responsible for tabloid journalism and, now, fake news. Clearly there are other factors, such as the rise of the internet, but I believe that it’s worth pointing out that just over fifty years ago, that kind of irresponsible or false journalism would face many more lawsuits than it does now.

This illustrates how the freedom of speech can come into conflict with itself, but we also have other values and rights that need to be protected. If there is any right that is more important than speech, it would have to be our right to life itself. That is why inciting speech, or “fighting words,” is also not protected. Death threats, bomb threats, and direct incitements to violence are examples of speech that are crimes because they endanger or threaten to endanger the public.

But, here again, we enter a gray area. Thus far (and unfortunately in my opinion), the nation's courts have taken a very narrow view of what is considered incitement. And that’s why much of what we would consider hate speech is technically protected.

However, this is only half the story. The first amendment only protects our speech from government interference. Society’s role in regulating speech is as, if not more, significant than the government’s. There are those who believe that the freedom to express their opinion means they should also be free from societal consequences. This is not, has never been, and never will be true.

In many ways, the government and the law are blunt instruments. In principle (even if it rarely works out that way), the law applies equally to all citizens. This makes it ill-equipped for dealing with more nuanced situations. For example (in a microcosm), a jury in a trial has the right to ignore the law (whether for good or ill) in a way a judge cannot. In the same way, the public can pass moral judgements that the government cannot. If enough people believe that a certain viewpoint is harmful to society, they can exert many kinds of pressure on those who hold those views.

To express the view that society should not use its power in this way is akin to saying that society should not evolve, or adapt to a changing world. But that would be societal suicide. The government does not have the power to say that an idea is wrong. This is not because no ideas are wrong. It is because society has evolved to the point where we realize that is a decision best left in our own hands. When we come across ideas that we believe are clearly harmful to society, we have a duty to suppress them in any (legal) way we can. 

I say legal because if we believe violence is harmful to society, proposing violence as a way of silencing those who advocate its use is both hypocritical and counterproductive. We cannot make a safer, less violent society by turning to violence ourselves. But, once again, there is a fine line between violence and self-defense. However, when in doubt, don’t throw the first punch. I believe we’ll better off in the long run. Use your voice to drown them out and let their ideas suffocate. But all I’m really trying to say is:

Fuck Nazis.