The Constitutional Freedom of Speech

Fifty years before the Constitution was adopted, in November 1737, Benjamin Franklin wrote: “Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.” (The Pennsylvania Gazette). This statement would probably reflect the views of all of the Founding Fathers and the vast majority of the American colonists in the 18th century. As set forth in The Declaration of Independence, all men “are endowed by their Creator with certain unalienable Rights….” In the minds of the Founders these God-given, unalienable rights not only included “life, liberty, and the pursuit of happiness,” but also freedom of speech, including the right to express both civic and religious opinions, and to dissent or criticize the government. As with the others, this was considered as a natural or inherent right.

The history of free thought and free speech was grounded in both the Reformation and the Enlightenment. In 1644, John Milton wrote in Areopagitica, “The State shall be my governors, but not my critics….” In other words, government has a role to administer the duties and responsibilities of the State, but not to censor its citizens. Milton argued that there should be an open debate or encounter about political and religious matters and that is how truth can prevail: “Let her [Truth] and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter? Her confuting is the best and surest suppressing.” (Id. p. 13). In the Virginia Act for Establishing Religious Freedom (1785), Thomas Jefferson wrote: “truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error.” Later, in 1859, John Stuart Mill in “On Liberty” agreed with Jefferson and Milton, and similarly reflected:

 

But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

 

These significant views of the power of truth vs. error, would manifest themselves in the American founding period, as well as indirectly influencing Supreme Court decisions during the 20th century. The prevailing view has been that darkness (bad speech) should be allowed and exposed to light.

As the new nation was being established, the Constitution was adopted in 1787, with the promise of a Bill of Rights being fulfilled in 1789. James Madison’s version of the speech and press clauses, introduced in the House of Representatives provided that: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” (1 Annals of Congress 434, June 8, 1789). The final version of the Bill of Rights, Amendment I, (adopted December 15, 1791) states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” In theory and in practice, freedom of speech is integrally connected to the other first amendment rights, such as the free exercise of religion and the freedom of the press in particular.

As The Declaration of Independence also states, “that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” How can a self-governing people “consent” to a delegation of their natural rights to government without freedom of speech? The consent of the governed would naturally necessitate or require both reflection and choice on who to vote for, what laws and policies to support, as well as the right to disagree and to dissent. While we have a democratic republic, and the majority has great sway in governing, the rights of the minority have been guarded though constitutional forms, including separation of powers, checks and balances, but particularly in the First Amendment itself. As Justice Louis Brandeis wrote in his concurring opinion in Whitney v. California (1927), “recognizing the occasional tyrannies of governing majorities, they [the Founders] amended the Constitution so that free speech and assembly should be guaranteed.” (Joseph R. Fornieri, Free Speech: Core Court Cases, 2020, p. 24, cited as Fornieri). In this regard, Justice Brandeis also 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. (Id.)

It is also evident that a rational deliberation on policy should lead to best outcomes for individuals and society as a whole. In a related vein, societal progress can and is often spurred by a “marketplace of ideas” (see: Justice Oliver Wendell Holmes concurring opinion in Abrams v. United States (1919), Fornieri p. 12). As Justice Holmes notably argued:

 

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.” (Id.).

As our Founders believed in the connection between virtue and good government, they also believed that virtue was essential to happiness. As George Washington said, “there is no truth more thoroughly established, than that there exists … an indissoluble union between virtue and happiness.” (First Inaugural Address, 1789). In order for virtue to triumph over vice, individual character development, human flourishing, and the education of the mind must all have a wide-open door, and simply cannot occur and prosper without free inquiry and free speech. Freedom of speech and expression also manifests themselves in individual autonomy, will, self-determination, and in the arts and sciences – all keys to human progress.

While it can be viewed negatively, freedom of speech can also function as a “safety valve” – allowing radicals to vent and blow off steam. Again, in Whitney, Justice Brandeis writes, “fear breeds repression; … repression breeds hate;… hate menaces stable government; … the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and the fitting remedy for evil counsels is good ones.” (Fornieri, p. 24). In order to uphold and maintain freedom of speech we should always allow and even welcome contradictory and opposing views. The resulting contrasts in ideas and opinions are essential to our democratic republic and may even be redemptive.

Benjamin Franklin "On True Happiness"

Benjamin Franklin said, “virtue and happiness are mother and daughter” (Poor Richard's Almanac). He believed that real happiness was not just about pleasure and positivity but more about our character, conduct, and in doing good deeds. He wrote:

“The desire of happiness in general is so natural to us that all the world are in pursuit of it; all have this one end in view, though they take such different methods to attain it, and are so much divided in their notions of it.

Evil, as evil, can never be chosen; and though evil is often the effect of our own choice, yet we never desire it but under the appearance of an imaginary good.

Many things we indulge ourselves in may be considered by us as evils, and yet be desirable; but then they are only considered as evils in their effects and consequences, not as evils at present and attended with immediate misery.

Reason represents things to us not only as they are at present, but as they are in their whole nature and tendency; passion only regards them in their former light. When this governs us we are regardless of the future, and are only affected with the present. It is impossible ever to enjoy ourselves rightly if our conduct be not such as to preserve the harmony and order of our faculties and the original frame and constitution of our minds; all true happiness, as all that is truly beautiful, can only result from order.

Whilst there is a conflict betwixt the two principles of passion and reason, we must be miserable in proportion to the struggle, and when the victory is gained and reason so far subdued as seldom to trouble us with its remonstrances, the happiness we have then is not the happiness of our rational nature, but the happiness only of the inferior and sensual part of us, and consequently a very low and imperfect happiness to what the other would have afforded us.

If we reflect upon any one passion and disposition of mind abstract from virtue, we shall soon see the disconnection between that and true, solid happiness. It is of the very essence, for instance, of envy to be uneasy and disquieted. Pride meets with provocations and disturbances upon almost every occasion. Covetousness is ever attended with solicitude and anxiety. Ambition has its disappointments to sour us, but never the good fortune to satisfy us; its appetite grows the keener by indulgence, and all we can gratify it with at present serves but the more to inflame its insatiable desires.

The passions, by being too much conversant with earthly objects, can never fix in us a proper composure and acquiescence of mind. Nothing but an indifference to the things of this world, an entire submission to the will of Providence here, and a well-grounded expectation of happiness hereafter, can give us a true satisfactory enjoyment of ourselves. Virtue is the best guard against the many unavoidable evils incident to us; nothing better alleviates the weight of the afflictions or gives a truer relish of the blessings of human life.

What is without us has not the least connection with happiness only so far as the preservation of our lives and health depends upon it. Health of body, though so far necessary that we cannot be perfectly happy without it, is not sufficient to make us happy of itself. Happiness springs immediately from the mind; health is but to be considered as a condition or circumstance, without which this happiness cannot be tasted pure and unabated.

Virtue is the best preservative of health, as it prescribes temperance and such a regulation of our passions as is most conducive to the well-being of the animal economy, so that it is at the same time the only true happiness of the mind and the best means of preserving the health of the body.

If our desires are to the things of this world, they are never to be satisfied. If our great view is upon those of the next, the expectation of them is an infinitely higher satisfaction than the enjoyment of those of the present.

There is no happiness then but in a virtuous and self-approving conduct. Unless our actions will bear the test of our sober judgments and reflections upon them, they are not the actions and consequently not the happiness of a rational being.”

Pennsylvania Gazette (1785)