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.

Andrew Langer is President of the Institute for Liberty, and host of The Broadside, a weekly internet radio show, which can be heard on the Institute for Liberty website.

February 27, 2012 

Essay #6 

7 replies
  1. Barbara Rejon
    Barbara Rejon says:

    If only this were true – any of it. After having been sued my the school district in which I live I have come to the sad conclusion that you only have the rights that you can pay for. If you don’t have the money it doesn’t matter what is written in the constitution or even on the law books. If you’re a celebrity and you speak up for your rights you’re applauded but if you’re just a parent trying to speak up for your own rights you are villified and sued. To have a school district try to remove my first amendment rights was and is a terrible ordeal to have to go through. To be hated by pretty much the whole town now is still tough and the cherry on the cake is this town’s name is Congress!

  2. Ron
    Ron says:

    “In the US, we want people with the most hateful, horrible ideas to be able to say them, loudly and publicly.” This is what I love about Fox News. Both sides are debated vigorously and listeners can decide which of those ideas presented are not “reasoned, thoughtful, valid.” Before FNC, we heard only one side of the argument.

  3. Lawrence N. Derby
    Lawrence N. Derby says:

    The Constitution does not prohibit being offensive. It is against the Law to slander, or damage another’s character, or reputation, with untruths.

  4. Marc W. Stauffer
    Marc W. Stauffer says:

    As a society, we seem to have regressed in the regard of free speech. Civil discourse is no longer the hallmark of our ability to express ourselves. Instead, it has been replaced with defamatory remarks about anyone that does not agree with our opinion. Whether we agree with someone’s opinion or not, that individual is guaranteed the right to express it….and that includes officials of government…..after all, they are citizens too and entitled to the same right of free speech we are.
    I believe if we continue down the road of “quieting” those opinions we disagree with, we will find ourselves faced with what the author of this essay believes might happen, that the forces of hate will simply explode onto the scene; “because for so long there had been no open debate or airing of the stilted beliefs of extremists groups.” Something to ponder before you engage in your next debate.

  5. Evelyn Swart
    Evelyn Swart says:

    Here is another problem. We assume that we understand others’ thoughts. Without asking for clarification, we decide what the other person or group is thinking, take a few words out of context, then demonize that person or group. We should learn how to converse with others in order to clarify, not to explore new ways to confuse ourselves and others.

  6. Dan Farfan
    Dan Farfan says:

    “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.”

    If one accepts this “without fear” tenet of as a requirement for a “free society,” then let’s be clear on the consequence, America is a not a free society… and never has been.

    First of all the Amendment has nothing to do with preventing fear, that would be silly. The Amendments detail the contract between the Federal govt and the citizens & States by establishing boundaries. “No law shall be passed” is an explicit curb on the legislative branch(es), but it’s far from the broad “without fear of retribution.” Retribution can come in many cloaks from every level of govt, and it does. For example: tax audit, building permits, inspection fines levied or not to friendlies or not, $500 million dollar green loans or not. Insult (using no profanity or loud volume) the next police officer who pulls you over and measure the retribution compared to your last ticket. This list could go on and on, thus, this characterization has no merit whatsoever.

    The “or other citizens” phrase misses the mark by even a wider margin. If I, as a citizen, chose to exclude from the dinner parties I hold on my private property people who speak or write about the U.S. Constitution in an unlearned fashion, you are out. Banished. Punished. Retribution delivered. Sorry. No offense, of course. Just an example. Citizen to citizen.

    There is perhaps a single phrase that could qualify your premise. Something regarding the “force of law.” My retributions for your written speech lacks the force of law (which is fine because I as a citizen I may invite to or exclude from my private residence anyone I chose for any reason) as must any retribution from any elected officials or members of any govt at any level (NOW there is a fabulous topic for a different scholarly, visionary article. 🙂

    One last thought in this comment. In my amateur opinion, the word missing from this article foreshadows the absence of the critical topic which seems too often missing from discussions about the Constitution, consequence. The “without fear” phrase attempts to limit the consequences of free speech in a way that’s simply not accurate, appropriate or even desired.

    I’m sure Andrew has worthwhile insights. I suspect the rest of the article is not hampered by the first paragraph. I look forward to reading it.

    Author – “The Next 10 Amendments”

  7. Andrew Langer
    Andrew Langer says:

    Dan, you seem to have totally misinterpreted the opening paragraph of my essay on the 1st Amendment’s Free Speech clause. Whether it was an affirmative misinterpretation as a way of generating interest in your own writings, I do not know. What I do know is that your interpretation, especially of that sentence you quote, couldn’t be further from the mark.

    In that sentence, I am attempting to lay the groundwork for a discussion of the subject matter–the context in which we are going to have our discussion. That is the nature of this 90-day excursion into the intricacies of the Amendments, to, among other things, set the context of these amendments–so that people not only understand what they are, but WHY they are important.

    First, you seem to misread the subject of the sentence itself, which isn’t the first amendment, but is (plainly) the “hallmark of a free society” – while the subject of the essay IS the 1st Amendment, it is important to lay the broader context so that people can understand their importance.

    Then, building on your misinterpretation, you read-into my sentence that I somehow say that “freedom from fear” is guaranteed by the 1st Amendment. I don’t. This would be akin to saying that the Constitution guarantees “happiness” – whereas it merely underscores that each have an unalienable right to “pursue” happiness.

    The concept of being free from fear of retribution is an aspirational one–we aspire, as a nation, towards civil society (as that concept was envisioned by Locke). Are there people who are afraid of speaking out? Of course. Do we strive as a society to prevent instances where there is a “chilling effect” on free speech? Absolutely – both legally and culturally.

    Then you expand your misinterpretation to suggest that I am encompassing within the 1st Amendment’s legal prohibitions the ability of individuals to restrict the speech of other individuals. I say no such thing – “Congress shall make no law” is abundantly clear.

    On the other hand, you seem to forget that the 1st Amendment’s guarantees DO apply to the intersections of speech between individuals – ie, I have the right to say that you’re a jerk, but I do not have the right to say that you’re a jerk who has committed murder or robbery or some other crime, and legislatures can make laws to restrict my speech in that regard.

    As to the issue of “consequence,” please read the rest of the article.


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