James Madison, prime drafter of the Bill of Rights, would be appalled to find marauding mobs curbing speakers, but not surprised. This and much more that illuminates today’s struggle over freedom of speech is the subject of a compact volume, The Soul of the First Amendment, by legendary First Amendment constitutional scholar Floyd Abrams.
Abrams traces the two-century history of the First Amendment, from its creation in the Bill of Rights, ratified in 1791, three years after ratification of the Constitution (which took nearly a year after its publication by the Framers of Philadelphia), The Framers were disinclined to adopt a Bill of Rights, whose protections they regarded as implicit in the text of the Constitution. Framer Roger Sherman of Connecticut said of bills of rights: “No bill of rights ever yet bound the supreme power longer than longer than the honey moon [sic] of a newly married couple.” Fortunately, Mr. Madison prevailed over such skepticism.
Abrams cites the mid-century historian Clinton Rossiter, who described the 1787 Constitution as “plain to the point of severity, frugal to the point of austerity, laconic to the point of aphorism.” Madison stated that the “great object” of bills of rights is “to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode.” Madison believed courts would act as an “impenetrable barrier” to infringement of speech. But speech is now under a sustained assault not seen since the 1798 Sedition Act saw more than 20 newspaper editors jailed by President John Adams.
Because Abrams covers only the First Amendment, he ignores the Court’s seminal Bill of Rights case prior to 1925, the year the Supreme Court began to selectively incorporate clauses, thus applying them to the States. Until then the case that defined its ambit was Barron v. Baltimore (1833), in which Chief Justice John Marshall, our most influential Justice, authored the Court’s opinion holding that the Bill of Rights limited only the powers of the federal government. Indeed, it was not until 1939 (NOT a misprint) that the final trio of the original 13 colonies — Massachusetts (Mar. 2), Georgia (Mar. 18) and Connecticut (Apr. 19) — ratified the document many consider our true fundamental charter. This view is widely held because the Constitution’s text focuses on definition and distribution of powers, many arcane to non-lawyers; the first ten amendments collectively called the Bill of Rights is a charter that mostly defines substantive constitutional rights, to many our secular Ten Commandments.
Abrams offers six chapters: (1) the history of free speech and the First Amendment over the past 226 years; (2) comparison of free speech protection between America and the other Western democracies; (3) how English free speech law was explicitly rejected by the Supreme Court in a landmark decision; (4) comparison of relative protection of a right to be forgotten; (5) comparison of regulation of spending in political campaigns; (6) free speech issues that evade legislative and jurisprudential solution.
Abrams notes two emerging, divergent views on free speech protections. Justice Stephen Breyer wrote in his dissent as to free speech protection in the landmark 2010 Citizens United decision: “The First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving democratic order in which collective speech matters.” (Italics in original.) As rebuttal, Abrams cited Chief Justice Roberts in a later election free speech case, that “… the will of the majority… plainly can include laws that restrict free speech. The whole point of the First Amendment is to afford individuals protection against such infringements.” The case for new curbs on speech was carried further by former Harvard Law School Dean Kathleen Sullivan, who identified opposing visions of free speech: one protects only such speech as is perceived to advance political equality by protecting designated rights holders; the other is negative, and bars the government from restricting speech, with a few very narrow exceptions. Sullivan supports the former, while Abrams supports the latter. Abrams follows the Framers; Sullivan, postmodern jurisprudential values.
The dominant limitation of speech from the founding into the 1920s was censorship. Only with the jurisprudence of Justices Oliver Wendell Holmes and Louis D. Brandeis did protection of free speech, however unpopular, came to the fore. It was only in 1925 that the Frist Amendment was applied to the states; and not until 1965 — NOT a misprint — did the Supreme Court rely upon the First Amendment to strike down a federal statute.
Abrams is very effective in contrasting the great degree to which speech remains protected in America, versus its creeping strangulation in Europe. Prime culprits are rulings by national courts and administrative tribunals, plus pan-European international bodies. He cites several recent decisions that would not have been made on our side of the Pond. Speakers have been convicted for such offenses as calling for an end to Muslim immigration (Britain, Belgium); for putting one’s country first (Britain and Belgium again); and attacking Christianity (Poland). But it is criticism of Islam that is most ferociously punished today. Dutch parliamentarian and unsuccessful candidate for prime minister Geert Wilders was convicted for giving speeches calling for an end to Islamicization in Holland. This is the steep price of multicultural political correctness.
Another landmark protection for American speakers and writers came with passage of laws preventing enforcement against Americans of libel judgments issued by European courts; militant Islamist plaintiffs had targeted authors whose works sold only a few copies overseas, suing in England rather than in the U.S., to take advantage of European speech laws. Abrams counts 23 nations in the European Union that have criminal libel laws, with 20 of them including imprisonment penalties; several have laws calling for greater punishment for libeling public officials.
In one major area even a free speech libertarian like Abrams draws at least a partial line: national security. He recounts that during the 1971 Pentagon Papers case (in which a massive archive of Vietnam war decision-making was published by the New York Times and the Washington Post) the Times withheld certain classified details. Earlier, in the 1950s the Times learned that the CIA was conducting secret reconnaissance overflights of the Soviet Union, and elected not to publish. Rampant disclosure of sensitive classified information is now close to a journalistic norm. While such may prevent abuses, which undeniably exist, they can also damage national security — “sources and methods” regarding intelligence collection, for example.
Perhaps most dangerous of all is the growing trend towards suppressing speech by resort to mass violence. Violence is contagious, if unchecked. Democrats were silent when Madonna said on Inauguration Day that she imagined the White House exploding; when a rapper posted a video imagining President Trump being assassinated; and some even defended the profanation of a Julius Caesar Shakespeare in the Park production in which Caesar dressed as Trump was stabbed to death. Such attitudes spawn violence not only against the right. California Democrats, much to their surprise, have received death threats from members of their hardcore leftist base, warning them not to cede to President Trump on health care.
Many remember vividly the tragic and terrifying events leading up to November 22, 1963, when President Kennedy was gunned down. For at least a year before that ghastly Friday of November 22, right-wing extremists had openly preached violence against the president. The contagion had spread, but a radical leftist was the assassin. Violent and hateful rhetoric, far from being tamped down, escalated though the massively destructive race riots of 1964-1968. The wave crested with the spring 1968 murders of Martin Luther King by a white racist, and of Senator Robert Kennedy by a Palestinian terrorist.
In what Abrams terms “an historical irony” the protections of the Bill of Rights have most often been invoked on behalf of leftist dissenters, yet it is the hardcore left that today aggressively moves to curtail such protections for speakers on the right. It was said of the French Revolution that in the end it, like the Roman deity Saturn, ultimately “devoured its own children.” Today’s myriad leftist practitioners — and the few of their ilk on the right — of intellectual thuggee might do well to ponder this.
The death of free speech would mark the demise of the American republic, tossing the Constitution into history’s ash heap. It would be a terrifying triumph for totalitarians everywhere. Either we let speech run free, or we let the sensitivities of listeners (and readers) delimit what we may lawfully say. To prefer the latter is to empower most those who will most vociferously impose their sensitivities to silence others. They will always be the most extreme among us. And then we will have the least freedom of speech when we need most the broadest freedom to speak.