The First Amendment of the United States Constitution (U.S. Const. amend. I) states: “Congress shall make no law… abridging the freedom of speech, or of the press.” A group of people, for example Supreme Court Justice Hugo Black, believe(d) in a literal and absolute reading of the First Amendment, i.e. when it says “no law,” it means “NO law.” This is summed up by Justice Black in his opinion on the case Beauharnais v. Illinois (1952): “I think the First Amendment, with the Fourteenth, “absolutely” forbids such laws without any “ifs” or “buts” or “whereases.” Though Justice Black drew a distinction between speech (which was protected) and conduct (which could be regulated), for example Black dissented to Tinker v. Des Moines (1969) on the grounds that symbolic expression was unprotected conduct. However, there are many that object to First Amendment absolutism in any variety.
One of the most common objections is that expressed by Justice Oliver Wendell Holmes in Schenck v. United States (1919): “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” This presented the “clear and present danger” test for the freedom of speech. However, the very case from which the infamous quote has sprung is not only one of the most odious freedom of speech decisions in U.S. history but it was also effective overturned by Beauharnais v. Illinois. Furthermore, the “clear and present danger” test for what is and is not allowable speech is extremely dangerous in itself, because who decides what constitutes a “clear and present danger.” Another common objection to First Amendment absolutism is that some opinions are too dangerous to be allowed in society, this issue will be address later in this article. Turning now to why I am not a First Amendment absolutist; clearly, my reason is not the “fire in a crowded theatre” objection, nor is it, the latter (“some opinions are too dangerous”) object.
The reason I am not a First Amendment absolutist is simply because I am a free speech absolutist, this distinction is essential. There are two main reasons for this distinction: governments cannot give rights, they can only secure or deny rights; and being a First Amendment absolutist leaves one open to the attacks of Supreme Court decisions (such as Schenck v. United States). The first reason necessitates some explanation of the origins of rights. However, the scope of this article is limited to the freedom of speech, therefore, a complete exploration of the origins of rights cannot occur herein. Thus, in brief, it need only be said that governments do not grant rights to citizens, the citizens possess those rights by their nature of being humans; however, governments can (though not legitimately) deny rights to their citizens, in which cases, they may at a later time stop denying those rights. Therefore, the First Amendment is not the grant of the right of free speech; it is the protection of free speech. The second point should be clear; if one bases their defence of the freedom of speech purely on the First Amendment they open themselves up to having to defend their interpretation of the Constitution from other interpretations, especially those used in Supreme Court decisions. This moves the discussion from being about free speech to being about Constitutional interpretation. Therefore, I am a free speech absolutist not a First Amendment absolutist.
I understand that free speech absolutism is a minority opinion that suffers from many serious attacks. The most common and convincing of which is that some ideas, opinions, or other types of speech are too dangerous or harmful to be allowed in society. A common example is that of Nazis and Neo-Nazis. How can we allow Nazis and Neo-Nazis the right to spread their hateful, vile, and violent ideas in a civil society? The answer is that, to quote Justice Louis Brandeis: “sunlight is said to be the best of disinfectants.” By that I mean that by allowing Nazis and Neo-Nazis to spread their hateful and ignorant ideas it allows the world to see that these ideas are hateful and ignorant. For example, the extremist party called the British National Party was basically destroyed after their leader, Nick Griffin, was allowed on the BBC Question Time program. As a Hope Not Hate organiser said, “our greatest asset was Nick Griffin.” Essentially, people heard what the BNP was saying and saw it as incorrect, hateful, and ignorant. No anti-free speech law could have destroyed the BNP as effectively.
The answer to dangerous speech is more speech. One need not “no platform” a radical nut-job, one only has to allow this nut-job to say his bit and thereby prove that he is a nut-job to everyone else. This is the crux of the argument. Any limit to free speech is necessarily a small destruction of people’s abilities to argue and, therefore, their ability to think; as the eminent scholar Christina Hoff Sommers once said: “if you can’t argue; you can’t think.” However, even deeper than that any limit to free speech is necessarily a victory for precisely those people whose speech has been limited. If one bans the speech of a Neo-Nazi all that does is open the door for them to later say: “the authorities silenced me because they know that I am right!” Banning speech just adds to the later ammunition for counterattacks of those whose speech has been banned. Indeed, the best thing to do if one thinks an idea is dangerous, stupid, ignorant etc. is to let it be said and, if it truly is all those things, everyone will see that. However, many will remain unconvinced of this absolutism.
The journalist Richard Lyon (2015) raised two questions to “test” free speech absolutists:
Do you support the right of people to freely publish and view materials displaying child pornography?
Do you support the right of people to freely publish and view instructions for the construction of a nuclear device?
Obviously, these questions are powerful and designed to elicit strong opposition by the common reader. However, they are easily refuted on grounds that do absolutely no damage to the free speech absolutist case. On the issue of child pornography, the great defender of free speech absolutism and eminent journalist, Christopher Hitchens, wrote:
In a sense this is a red herring: Anybody involved in any way in using children for sex is already prosecutable for a multitude of extremely grave crimes. Free expression doesn’t really come into it. The censor is more likely to prosecute a book like Nabokov’s Lolita and yet have no power to challenge porn czars.
This argument is, I think, decisive. Free speech really does not enter into the issue of child pornography as to produce such disgusting and depraved material one would have to engage in terrible crimes that have nothing to do with speech. Lyon’s second question is a strange one. Surely, he is not implying that even with a full construction manual and plan for a nuclear device one would have the technical or material ability to actually construct the device. There is nothing stopping a budding nuclear terrorist from buying numerous books on the subject of nuclear physics and on general bomb construction; must these be banned? Remember, the original builders of the atomic bomb did not start with a blueprint for the bomb; they solely had the nuclear science and engineering knowledge to build it. Furthermore, the average person, and indeed average would-be terrorist, does not have the technical know-how to build a nuclear bomb or the access to the materials to build one. Moreover, the dedicated would-be terrorist would not be deterred by the inconsequential fact that the distribution of nuclear plans is prohibited. That is akin to an argument that we should ban speech that examples how to use drugs or how to craft the tools that are used to intake drugs, because this will stop the would-be drug addict.
In summation: I am not a First Amendment absolutist because rights are not granted by governments and the terminology of First Amendment absolutist moves the discussion from being about free speech to being about Constitutional interpretation. Therefore, I am a free speech absolutist. However, I recognise that there are some serious arguments against this position. I do not believe that “clear and present danger” is a good argument for limiting free speech because it leaves open the question of who decides what a “clear and present” danger is. The argument that some ideas are too dangerous or ignorant to be allowed (e.g. Nazis), is a bad argument against free speech because it allowing bad ideas to be expresses often leads to those bad ideas being rejected, but banning them gives a special power to the dissident group. Furthermore, the best response to dangerous, ignorant, or otherwise bad speech is not silence but more speech. Arguments such as those of Lyon (e.g. child pornography and nuclear plans) often rest on confused thinking. Child pornography is not really a speech issue but is, in fact, a grave legal issue on completely separate grounds. Nuclear bomb plans are no grantee that the possessors can actually build a bomb; moreover, banning them from distribution will not stop people that seriously wish to build bombs. In close, to quote Voltaire, “there is no opinion worth burning your neighbour for.”
Beauharnais v. Illinois, 343 U.S. 250 (1952)
Brandeis, L. (1914). Other People’s Money – And How the Bankers Use It. Retrieved from https://archive.org/details/otherpeoplesmone00bran
Foundation for Individual Right in Education & Sommers, C. H. (2013). Christina Hoff Sommers on The War Against Boys and One Nation Under Therapy [transcript]. Retrieved from https://www.thefire.org/interview-transcript-christina-hoff-sommers-on-the-war-against-boys-and-one-nation-under-therapy/
Lyon, R. (2015). “Free Speech Absolutist: Oh Really?” In Daily Kos. Retrieved from http://www.dailykos.com/story/2015/1/14/1357689/-Free-Speech-Absolutist-Oh-Really
Reader’s Digest Editors (2011). “Christopher Hitchens on Freedom of Speech.” In Reader’s Digest. Retrieved from http://www.rd.com/culture/christopher-hitchens-on-freedom-of-speech/
Schenck v. United States, 249 U.S. 47 (1919)
Timm, T. (2012). “It’s Time to Stop Using the ‘Fire in a Crowded Theater’ Quote” in The Atlantic. Retrieved from http://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/
Tokarev, S. (2011). Absolutism and Free Speech. Retrieved from http://uscivilliberties.org/themes/2977-absolutism-and-free-speech.html
U.S. Const. amend. I
Wigmore, T. (2014). “Nick Griffin Resigns: Why has the BNP collapsed?” In New Statesman. Retrieved from http://www.newstatesman.com/politics/2014/05/why-has-bnp-collapsed