How Did Free Speech Get Here?

It was a good day for our public discourse when, on the popular public talk show Firing Line, conservative intellectual William F. Buckley had a conversation with avant-guard Beat poet Allen Ginsburg. On 17^th May 1968, they argued about free speech in a way that at first glance appears familiar to us. Ginsburg argued for the expansion of “political speech” to include some types of poetry, and mocked the notion that certain writers, like Henry Miller, were subversive (Miller was banned in America until the 1960s, and Ginsburg’s own poem “Howl” was initially deemed obscene, and thereby beyond first amendment protection). What is interesting about this conversation is not merely that it was someone on the left who argued for greater speech rights, but that there was a time when such an argument actually had legal and political stakes.

Despite what stories on many college campuses may indicate, in America today no effectual political disagreement about free speech is possible. During a century of broad interpretations and highly liberal—and I mean classical liberal—decisions on free speech, the Supreme Court has created a near free speech absolutism, which is alien to the Anglo-American tradition. This process, through which expansive judicial decisions have given the first amendment a scope unprecedented in our common law tradition, bears some responsibility for our contemporary political confusion, in which conservatives have become quasi-classical liberals in regard to speech, and liberals have become supporters of censorship through means outside the law.

By classical liberal, here I understand those who, directly or indirectly take their philosophy of the state, human nature and free speech from John Stuart Mill’s On Liberty. That is, they believe the state should not infringe on the individual when the individual is not causing anyone direct harm, that intellectual censorship is harmful, and that an open intellectual society benefits us. I regard the classical liberal position on the freedom of speech today as one that accepts the legal limitations on free speech, such as libel or the advocacy of violence, but believes viewpoints should not be censored, that hate speech prohibitions are highly questionable if not flatly wrong, and which, ethically speaking, thinks these freedoms are both good in themselves (for freedom is an end unto itself) and a means for producing a more tolerant and reasonable society in the long run. It also regards attempts to determine boundaries of acceptable and hateful speech as inherently suspect and almost guaranteed to produce more harm than good.

The classical liberal, then, should feel right at home today in America. While there are some small restrictions on speech today—you can’t produce child pornography, libel someone, directly promote an act of violence—you can say virtually anything you want, no matter how hateful. In principle, across America you can make any argument, endorse any position and state whatever you believe. If this seems unsurprising, it should not: this is a recent development of expansive decisions and courtroom classical liberalism.

English common law did not allow such broad freedoms. As the eighteenth-century jurist Sir Blackstone writes in his Commentaries on the Laws of England, while “the liberty of the press is indeed essential to the nature of a free state … this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” The English government did not recognize the individual freedom to make any argument or say anything as long as it was not obscene or likely to cause violence. Indeed, “To punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order of government and religion, the only solid foundations of civil liberty.” According to Blackstone, one could be punished merely for expressing dangerous or offensive views. On this basis, Donald Trump could have easily been jailed. Atheists too, who express views that could hurt religion, would have been at risk of punishment. Similarly, Marxists, anarchists, neo-Nazis any anyone else with truly radical views would be endangered.

For most of US history, the Supreme Court did not uphold our contemporary understanding of free speech. Originally, the first amendment was only a check on Congress and did not apply to the state governments. It was only made applicable to the states during the twentieth century when the fourteenth amendment was interpreted to make the first amendment restrict states as well as congress. But the post-Civil War Supreme Court did not initially interpret the fourteenth amendment this way. In the Slaughter House Cases of 1873, an early fourteenth amendment case, the Court rejected a more expansive reading of the fourteenth amendment, which could have allowed the first amendment to apply to the states. As late as 1907, the Supreme Court in Patterson v. Colorado left it undecided whether the freedom of speech was “protected from abridgments on the part not only of the of the United States, but also of the states.”

It was only in the twentieth century that the Supreme Court slowly made the first amendment the powerful and nationally pervasive freedom we assume today. And when it did so, it could not draw upon a history of English common law or a history of national precedent for the first amendment—for neither existed. In one of the original first amendment cases in 1919, the Court upheld a conviction because speech was “intended to provoke and to encourage resistance to the United States in the war.” But the later holding Brandenberg v. Ohio (1969) required that there actually be a likely event of violence in the here and now. The contemporary doctrine, seen in the recent Supreme Court case Reed v. Town of Gilbert (2015), that prohibits laws from targeting speech because of the content itself, is the consummation of classical liberalism in law. Speech can now never be prohibited based merely upon the message or idea expressed. Today’s first amendment jurisprudent is so classically liberal that some of the Court’s most famous phrases—such as “one man’s vulgarity is another man’s lyric” in Cohen v. California (1971)—sound as if they had come straight out of John Stuart Mill.

Classical liberals who believe that free speech is the vehicle of human progress did not win the political battle by convincing other people of their views. They won because the Supreme Court engaged in decades of undemocratic expansive interpretations. The result is that in America today the only legally acceptable philosophy of speech is the ultra-Millean.

To give one indication of how poorly this historical development is appreciated: classical liberal free speech advocate Jordan B. Peterson likes to say that compelled speech is unprecedented in the history of our legal system. To his chagrin, the sentence in first amendment jurisprudence that made compelled expression all but illegal in the US—“No official high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein”—was a reversal of earlier precedent established in Minersville School District v. Gobitis (1940).

As a result of twentieth-century first amendment jurisprudence, no experiments in speech policy are possible because now all public entities must conform to a classical liberal orthodoxy on the first amendment. This prevents any serious non-academic debate about the ethics of free speech. Perhaps John Stuart Mill is wrong about human beings and about speech. Perhaps, in some localities at least, there should indeed be some restrictions on radical or racist ideologies, which could harm us in the long run and from which we, perhaps, need the State’s protection. The Court prohibits such a viewpoint from becoming politically actionable. No county or state can experiment with more restrictive policies for the apparent benefit of young people, to fight racism, or in defense of religious views. Everyone must act in accord with the classical liberal theory that more speech is good.

And so, conservatives, who are generally philosophically inclined to preserve precedent, must now unnaturally advocate a liberal attitude towards speech. Progressives, in order to promote anti-racism, anti-sexism and tolerance of any kind must resort to de-platforming, shaming, political correctness and other non-legal means. It is possible that if first amendment law had not developed so liberally, conservatives would have developed a more liberal attitude towards speech and progressives would still promote non-legal means of silencing dissent. But the uncompromising nature of our Constitutional law forecloses all legal experiments, thus giving today’s conservatives and progressives no other options.

To be clear – I personally believe that, at least in this era of Western society, expansive free speech can make us better. But if this theory is anything more than ideology, it ought to be tested against contrary theories in historical experiment. It would be useful to see the results of somewhat more restrictive policies on free speech. Unfortunately, the Court, apparently in service of a doctrine that promotes different viewpoints, has outlawed the political consequences of every philosophy of free speech other than the one I happen to hold.

The answer certainly is not for the Court to equally undemocratically begin to limit the freedom of speech based upon untested philosophical presuppositions. But we should caution the Supreme Court against continuing to expand first amendment rights, irrespective of precedent. Unfortunately, I do not believe the Court, even the conservative court, will be constrained on this point. The Janus decision demonstrated that the conservative majority is willing to disregard clear and long-standing precedent for policy ends—to engage in blatant first amendment judicial activism. If this continues, conservatives will increasingly adopt an unconservative view of speech, and progressives will increasingly resort to political correctness to achieve ends that the classical liberal law has foreclosed.