WHAT SHOULD BE SAID

This posting will be relatively short. I basically want to review the evolving thinking concerning the rights contained within the First Amendment concerning free speech. I have, in previous postings, used this right and our view of it to demonstrate one of the points I have emphasized in this blog: we have moved in our constitutional thinking from one of obligation and duty to one of self-serving utility. That is, our original ideal view of our governmental system was the formulation of a federated union in which we all had equal standing, but the union called on us to be part of a dynamic collective formed to attain a certain list of goals. Summarily, the goals were to achieve a more perfect union – see Preamble of the agreement.

Michael J. Sandel¹ identifies a set of quotes that capture the original sense and the more modern view as expressed by constitutional experts. The more traditional quotes are:

• “[T]ime has upset many fighting faiths … [and] the best of truth is the power of the thought to get itself accepted in the competition of the market.” Oliver Wendell Holmes
• “[The founders believed that in] government the deliberative forces should prevail over the arbitrary … 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.” Louis D. Brandeis
• “[The First Amendment] is to give to every voting member of the body politic the fullest possible participation in the understanding of those problems with which the citizens of a self-governing society must deal.” Alexander Meiklejohn

As opposed to the following:

• The more modern focus emphasizes “the source of the speech in the self, and make[s] the choice of the speech by the self the crucial factor in justifying protection.” C. Edwin Baker
• “[N]o other approach would comport with the premise of individual dignity and choice upon which our political system rests.” John Marshall Harlan
• “[I]t is nevertheless often true one man's vulgarity is another's lyric … .” John Marshall Harlan (Part of the opinion that found the conviction of a person wearing a tee shirt brandishing the term, “F**K THE DRAFT” – without the asterisks – unconstitutional.)
• “[The purpose of the First Amendment is] to assure self-fulfillment for each individual … .” Police of the City of Chicago v. Mosley, 408 U. S. 96.
• “[Freedom of speech is] intrinsic to individual dignity … [I]n a democracy like our own, in which the autonomy of each individual is accorded equal and incommensurate respect [freedom of speech needs to be protected].” William J. Brennan
• [I]deas which are not a product of individual choice are entitled to less First Amendment protection.” Byron R. White

The shift between these two sets of quotes reflects a profound change in how freedom of speech is seen – how it is defended and how it is seen to function in our political dealings. The older view, captured in the first set of quotes, sees free speech from the perspective that speech and communication need to be free in order to protect and advance the integrity of a political system based on participation. Speech is not only a chosen course of action; it is an obligation and duty each citizen has. In contrast, the second, more modern view, not only softens the sense of obligation, but also attributes this freedom as a reflection of our right to be the individual we have chosen to be. We even get the sense, from White's quote above, that we have an obligation to be reflective in our efforts to formulate the person we are to be.

Students of civics should consider these opposing views. This issue concerning speech and our collective ideals, by which we define the constitutional protection that is extended to speech, serves to represent the whole question: is freedom a matter of one being free to do what one should do or is it a matter of being free to do what one wants to do? Is freedom of speech the right and obligation to participate in the political controversies that confront the polity at a given time or is it the right to express ourselves in whatever way we want or to consume whatever anyone else wants to express? This includes any salacious, hateful, or seditious materials. Of course, these positions are not mutually exclusive in all cases. At times, one can see that wanting to consume certain expressive materials does not interfere with one's obligation to be a participating citizen. But there are cases when these ideals can work at cross purposes. And it is in those cases that students can determine where their positions lie. For example, take the case of the offensive tee shirt cited above. A classroom study of the censorship policies associated with World War I could hypothetically juxtapose a case in which an anti-war advocate wears such a shirt or carries the message on a placard in a demonstration. Students can write a story in which they work out a scenario as to what would happen to such a person. The story would have to depict accurately the laws, the dispositions of the courts, and public opinion of that time. All of this could be followed by a discussion about what the person wanted to say and what the person should have said. Perhaps some students would conclude they are both the same and some other students might conclude that the message would be different and should be different.

1Sandel, M. J. (1996). Democracy's discontent: America in search of a public philosophy. Cambridge, MA: The Belknap Press of Harvard University Press.