Freedom Of Speech Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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U.S. Supreme Court Justice Benjamin Cardozo in Palko v. Louisiana (1937) described freedom of speech as “the matrix, the indispensable condition, of nearly every other form of freedom.” Without the capacity to identify and protest injustice, people would neither know what their rights are nor be able to challenge deprivations of those rights. Near universal agreement on the merits of speech rights in the abstract, however, has not entailed any general agreement on what speech constitutions and laws must permit. Legal scholars, elected officials, and judges dispute the central purposes of free speech, what constitutes speech, and the values that might justify some limits on speech. These disputes have gone international. The United States protects far more speech than any other constitutional democracy.

Proponents of expression rights insist that what Thomas Emerson (1970) described as a “system of free expression” serves at least four values. First, speech rights are central to the discovery of truth. “Let her and Falsehood grapple; who ever knew Truth put the worse, in a free and open encounter,” John Milton famously declared in his Areopagitica in 1644. Second, speech rights are a necessary condition for democracy. Popular sovereignty exists, democratic theorists recognize, only when citizens are free to debate the merits of rival policies and candidates. Third, speech rights are vital for self-expression. An open society values diverse individuals who express and establish their identities through various communicative acts. Finally, expression rights may be a means by which political opposition is cabined. People who are free to express their contempt for the status quo with words are less likely to express their contempt with violence. John Stuart Mill in On Liberty (1859) combined several of these principles when he observed, “Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action.”

Regulating Free Speech

These different values determine what counts as speech. Some proponents of the truth function of expression believe that government should protect only rational arguments. Insults, obscenity, advertising, and political buttons might not count as speech under this rationale. Many democratic theorists insist that government should protect only political speech. Alexander Meiklejohn, the most influential American free speech theorist during the 1960s, insisted that while government could never regulate speech on political affairs, radio and television were forms of entertainment that could be regulated, as is any other business enterprise. Great literature could not be regulated, in his view, only insofar as such works as Hamlet and Anna Karenina could be said to influence voting and other political choices. Those who champion self-expression believe government must protect a wider range of speech. Great literature and even mediocre literature and obscenity merit the same degree of protection as political speech because an open society allows people to choose what communications to make and receive. During the past half century, commercial advertising has increasingly enjoyed free speech protection as a form of economic communication.

The conditions under which speech should be regulated are as controversial as what counts as speech. At one extreme is the view that communication that meets the conditions for speech can never be regulated, no matter what the possible harm. U.S. Supreme Court Justice Hugo Black advanced this position when he declared that the words “no law” in the First Amendment mean “no law.” Once Black found that a person had engaged in constitutionally defined speech, he rejected claims that any contrary value could justify regulation. At the other extreme is the bad tendency test, a test that enables government to regulate any speech that has some tendency to cause some harm. Under this view government can regulate pamphlets because they have some tendency to cause litter as well as speech critical of the government, no matter how tame, because such speech might have some tendency to cause crime. Actual practice in most nations, not surprisingly, takes a position in between these two poles. Speech may be regulated, but only when the harm is serious and a very likely consequence of the speech.

Free Speech In The United States And Other Democracies

Free speech in the United States has been subject to increased protection and expanded scope for the past century. At the turn of the twentieth century, both elected officials and justices insisted that only political speech was subject to any protection. Many insisted that persons could be imprisoned for opposing government policy even when they did not explicitly advocate unlawful conduct. After admitting that the petitioners in Schenck v. United States (1919) “confined” themselves to advocating “peaceful measures such as a petition for the repeal of the [draft],” Supreme Court Justice Oliver Wendell Holmes nevertheless maintained, “We do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out.” Contemporary U.S. constitutional law excludes speech from protection only when speakers incite illegal conduct and that incitement is likely to cause such conduct in the immediate future. The Supreme Court has further insisted that persons have a constitutional right to criticize public officials as long as they do not intentionally or recklessly utter falsehoods and that government can place a prior restraint on speech only if officials can demonstrate a harm equivalent to imperiling a ship at sea. In the contemporary American free speech law, obscenity, commercial advertising, and campaign finance are given (almost) the same protection as political expression. Racial insults are given the highest degree of political protection, because they are considered a form of political speech.

Other democracies do not tend to provide as great a degree of protection. Great Britain, other European nations, and new democracies in both Asia and Africa are willing to limit speech on a lesser showing of harm. In particular, most other nations regulate hate speech and campaign finance far more than the United States. The right to free speech in Canada and other countries does not include the right to deny the humanity of other citizens or spend unlimited sums of money in efforts to gain political office. Studies indicate that the Japanese and Germans, in particular, are far more concerned with the potential harms to reputation than the free market of ideas.

Americans who are aware of practice in other democracies tend to see foreign speech regulations as proof that other nations are still not quite as free as the United States. Many civil libertarians are convinced that any regulation of speech will provide precedents creating a slippery slope that will eventually threaten basic democratic rights. Citizens in other nations charge the United States with being more concerned with the forms than substance of democracy. Basic democratic rights, in this view, require active governmental intervention to ensure equal access to the marketplace of ideas.

Bibliography:

Emerson,Thomas Irwin. The System of Freedom of Expression. New York: Random House, 1970.
Graber, Mark A. Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism. Berkeley: University of California Press, 1991.
Krotoszynski, Ronald J., Jr. The First Amendment in Cross-cultural Perspective: A Comparative Analysis of the Freedom of Speech. New York: New York University Press, 2006.
Mill, John Stuart. On Liberty. New York: P.F. Collier & Son, Harvard Classics, Volume 25, 1909.
Milton, John. Areopagitica. London: MacMillan and Co. Limited, 1915.
Stone, Geoffrey R. Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism. New York: Norton, 2004.