Free Speech as a Safety Valve for Society

Free Speech as a Safety Valve for Society

Our precious First Amendment

America's first amendment had its roots in the torturous struggles in English history to acquire basic privileges and immunities for non-conformists and dissenting churches, for minorities and separatists -- either as individuals or congregates. America was thus a trail blazer in the realm of these basic rights for its people. Even today, few indeed are the countries that have the essential protections of freedom of conscience. Not even old Europe, by and large, have guarantees built in to their constitutions for the protection of religious freedom. Ireland is an exception.

Freedom of Speech
The Romans of old knew that telling truth to those not ready to hear it will not make you popular. In fact, telling unpopular truth quite often results in retribution being dished out to your hurt. Playing the whistleblower or prophet can make you a target for attack, for loss of position, for imprisonment, for execution even, in some times and places.

veritas odium paret. Truth engenders hatred.

The case of Whitney v. California was a landmark in the realm of free speech. It is perhaps best noted for Justice Louis Brandeis' concurrence, which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court. Justice Brandeis wrote:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law--the argument of force in its worst form.

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women.
[One thinks of Mother Shipton.]

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.

Thus one of the reasons for not suppressing speech is that free speech is a safety valve. Just as the ancient Romans eventually learned that executing Christians did not suppress Christianity, we today should learn that forbidding people to talk about certain topics does not encourage stability. It only creates martyrs. Punishing people for speech does not discourage the speech; it only drives it underground, and encourages conspiracy. In the battle for public order, free speech is the ally, not the enemy.

Consider the contrast between the histories of our country and that of Czarist Russia. The participation in World War I by Czarist Russia resulted in a rampant anti-war movement, which was suppressed with extreme harshness and brutality by the authoritarian regime. The aftermath of that repression was the Bolshevik Revolution. The United States, by contrast, has witnessed anti-war movements of some degree in virtually every war we have endured, and most have also seen some degree of authoritarian suppression of those movements by government. But nonetheless, the freedom to express dissent and opposition, the opportunity to, however clumsily, "tell truth to power" operated as a functional safety valve of sorts, a release valve for public discontent, and (in effect) as the ally, not the enemy, of public order.

Even supposedly "wrong" ideas can be helpful to us, if only in the provocation and stimulus they provide, as John Milton pointed out in his Areopagitica. Any dead fish can flow downstream. Opposition tests us. Challenges force us to flow upstream, to prove our liveliness, our fitness.

Indeed, sometimes, one's "enemies" can, in reality, turn out to be one's best friends. A doctor who gives you the "bad news" that you must reform your lifestyle, amend your ways, may seem like an enemy. But if the advice he gives turns out to save your life, what better friend could such an "enemy" be? Why did the ancients aver that whom the Lord loveth, he chasteneth? We are told, quem enim diligit Dominus castigat flagellat autem omnem filium quem recipit. Isn't there a positive value in a coach who stimulates, or a parent who inspires? A challenge can goad us to aspire for more, or make us discontent with the stifling inertia of a status quo, or act as a catalyst for positive change.

This function of opposition is part of what Walter Lippmann referred to in his famous essay on how indispensable opposition is to a free society. "The opposition is indispensable. A good statesman, like any other sensible human being, always learns more from his opponents than from his fervent supporters." The Indispensable Opposition

Salmon Rushdie wrote: "Free societies...are societies in motion, and with motion comes tension, dissent, friction. Free people strike sparks, and those sparks are the best evidence of freedom's existence." See these reflections on the dangers of censorship. Free speech is the life's blood of a healthy society. If government and authority are necessary because citizens stumble at learning needed lessons, or balk at "governing themselves," information, freely disseminated to listening ears, is surely the way to lessen the need for authoritarian "solutions." In the long run, only self-government can save us. See Democracy in America, by Toqueville, in which he says that American democracy showed authoritarian Europe how the people themselves, could rule.

The danger of censorship lies in the ignorance it fosters. Authoritarian societies are proverbial for their fear of a literate and enlightened populace, yet that popular literacy is precisely what America, with its innovative origins in New England "middle class" democracy, has been all about. [See Democracy in America, by Tocqueville.] It may be human nature to plug our ears to inconvenient truth. Deborah Tannen has written that "the biggest mistake is believing there is one right way to listen, to talk, to have a conversation -- or a relationship." Patience, politeness, and persistence are almost always helpful guidelines to communicating. Genuine communication is a two way street, which is why Tannen talks about trust-building, getting inside the other person's point of view.

But a socalled negative message need not be negative at all, though it seems like it, initially. A physician's unsettling advice, even when we need to heed it, is sometimes "too much information" for us to handle, at first. In the same vein, the press has a function akin to the 'Voice Crying in the Wilderness' (the prophetic role) that Dr. Martin Luther King spoke of. Truly such a role, even when it provokes, is often needed.

What's right with America is the willingness to discuss what's wrong with America.. [Harry C. Bauer]

There is always hope when people are forced to listen to both sides. [John Stuart Mill]

We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still. [John Stuart Mill]

Censorship reflects a society's lack of confidence in itself. [Potter Stewart]
Whenever they burn books, they will, in the end, burn human beings. [Heinrich Heine]

Liberty is always dangerous, but it is the safest thing we have. [the theologian Harry Emerson Fosdick]

An enemy who tells the truth we need to hear [and are able to hear] contributes infinitely more to our improvement than a friend who deludes us, or flatters. [Louis-N Fortin]

It is better to debate a question without settling it, than to settle a question without debating it. [Joseph Joubert]

The last taboo of mankind, avoiding forbidden and dangerous thoughts, must be removed. There are no illegitimate thoughts. [Theodore Reik]

I like the noise of democracy. [James Buchanan]

The spirit of liberty is the spirit which is not too sure that it is right. [Judge Learned Hand]

In the end it is worse to suppress dissent than to run the risk of heresy. [Judge Learned Hand]

Also see Father John Courtney Murray, "We hold these truths"

A Nation of LAWS

not arbitrary tyrants, bosses, and bullies

Dueprocess

rights and protections routinely provided

Religious freedom and the family. The very first Clause, of the very First Amendment, is a guarantee of religious freedom. This placement was no accident. The Baptist Preacher John Leland (a liberal), and the Deist Lawyer James Madison (a moderate), both Virginians, deserve primary credit for it. Subsequent jurisprudence has, if anything, strengthened this guarantee. The Supreme Court has affirmed, "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Pierce v. Society of Sisters, supra. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter."

The First Amendment Freedoms, containing those splendid privileges and immunities that form the bedrock of our Constitutional Fortress, is far more than 'majestic generalities.' The Supreme Court has proclaimed, "[The] freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally govern this case."

The Bill of Rights in effect tells government, "Hitherto shalt thou come AND NO FURTHER." [Job 38 : 11, AV] see. Government throughout the History of Civilization has been a story of the expansion and the aggrandizement of state power and arrogance to Imperial and often totalitarian dimensions. See the Spinoza factor. The unique innovations of the modern era, and in particular the Anglo-American constituional tradition, has been the curtailment of overweening government power and intrusion. Caselaw has ruled, -- "It is imperative that, when the effective exercise of these rights is claimed to be abridged, the courts should 'weigh the circumstances' and 'appraise the substantiality of the reasons advanced' in support of the challenged regulations. -- The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. [310 U.S. 88, 98]

Only the most exceptional instances can justify government violation of the basic safeguards embodied in the Bill of Rights. Again, -- "Moreover, the likelihood, however great that a substantive evil will result cannot alone justify a restriction upon freedom of speech or the press. The evil itself must be 'substantial', Brandeis, J., concurring in Whitney v. California, supra, 274 U.S. at page 374, 47 S.Ct. at page 647; it must be 'serious', Id., 274 U.S. at page 376, 47 S.Ct. at page 648, 71 L.ed. 1095. And [314 U.S. 252, 263] even the expression of 'legislative preferences or beliefs' cannot transform minor matters of public inconvenience or annoyance into substantive evils of sufficient weight to warrant the curtailment of liberty of expression. Schneider v. State, 308 U.S. 147, 161 , 60 S.Ct. 146, 151.

Tocqueville himself felt caught between two worlds, the hierarhical, Aristocratic world of old Europe, and the future he foresaw, of increasing education and widespread literacy for common people. In the 1830s, old Europe was still deeply entrenched in almost feudal dichotomies between a small upper class, and a vast, ignorant and illiterate lower class. In America he found democracy. He was pleasantly surprised to see this industrious, ambitious, middle class society with their tempered puritanism, their mildly anti-authoritarian disposition, and the widespread literacy. "This," he predicted, is the hope of the future. All America will one day be like New England, and all the world will one day be like America.

Needed: Fearless Voices of Honesty

The Indispensable Opposition
The democratic system cannot be operated without effective opposition. For, in making the great experiment of governing the people by consent rather than coercion, it is not sufficient that the party in power should have a majority. It is just necessary that the party in power should never outrage the minority. That means that it must listen to the minority and be moved by the criticisms of the minority. That means that its measures must take account of the minority's objections, and that in administering measures it must remember that the minority may become the majority.

The opposition is indispensable. A good statesman, like any other sensible human being, always learns more from his opponent than from his fervent supporters. For his supporters will push him to disaster unless his opponents show him where the dangers are. So if he is wise he will often pray to be delivered from his friends, because they will ruin him. But, though it hurts, he ought also to pray never to be left without opponents; for they keep him on the path of reason and good sense.

The national unity of a free people depends upon a sufficiently even balance of political power to make it impracticable for the administration to be arbitrary and for the opposition to be revolutionary and irreconcilable. Where that balance no longer exists, democracy perishes. For unless all the citizens of a state are forced by circumstances to compromise, unless they feel that they can affect policy but that no one can wholly dominate it, unless by habit and necessity they have to give and take, freedom cannot be maintained.

[Walter Lippmann, 1939]