Why we have free speech in America – Part I — VOICES for REASON

A few weeks back, I had the pleasure of visiting Montpelier, the former home of James Madison. There were conspicuously few visitors–and none of the others appeared to be under 70 years of age. It was emblematic, I think, of how little awareness there is of the Founding Fathers today. Sure, we still invoke them regularly, but how many Americans actually study their writings?

Contrary to conservatives, the primary value of studying the Founders is not to learn about our “great traditions.” It’s to discover great minds wrestling with important ideas. And if you think their arguments aren’t relevant to today, think again.

In the wake of the recent series of apparently ideologically-motivated shootings, a growing number of voices are warning us that we are seeing the perils of free speech. The most open statement I found was on the Daily Kos blog; its author was someone who posts as “citisven.” The post was titled, “Why we don’t have ‘free speech’ in Germany.” (You’ll have to ask citisven why he put free speech in scare quotes.)

In Germany, where I’m from, we collectively decided after what happened in the 1930′s and 40′s that there are limits to free speech. Yes, you can have reasonable disagreements, but you cannot incite violence nor can you say things that are blatantly and patently false. Thus it is illegal to display swastikas or say that the holocaust never happened. . . . In light of the recent murders at the Holocaust Museum and the Wichita church it seems to be a fair question whether freedom of speech is an absolute right or whether it should be limited in certain circumstances.

You can read the entire thing for his defense of Germany’s restrictions. But the basic idea is that free speech goes too far. Sure, people should be able to have “reasonable” disagreements–but they shouldn’t be able to advocate any idea. Ideas that “incite violence” or are “blatantly and patently false” should be taken off the table.

Given how crucial the right to free speech is to the maintenance of a free society–and given how many martyrs to that freedom fill the pages of history–you might think that advocates of restricting speech would take great care to understand and grapple with the ideas of the Founding Fathers. But you would be wrong.

Notice, first of all, how citisven blends together two fundamentally different things: “blatant and patently false” speech, and “incitement to violence.” The Founders recognized that these were two essentially different issues that had to be addressed separately.

First, take the notion that the government should ban speech that is “blatantly and patently false.”

According to this view, we gain nothing from “blatant” falsehoods, and we risk much harm by failing to squelch them. We gain nothing by allowing people to deny the Holocaust–and we risk another one if those who hold this position are free to advocate it.

Before the Founders, virtually everyone took it for granted that the government should ban the communication of so-called “false facts.” But leading American thinkers identified that such a doctrine threatened all speech.

In his dazzling 1799 defense of free speech, George Hay (a member of the Virginia House of Delegates at the time) warned that, should the government start restricting “false” speech:

The officers of the government would have a right to invade this fortification, and to make prisoners of the garrison, whenever they thought there was a failure in the duty of publishing only the truth, of which failure persons chosen by the government are to judge. This is too absurd even for ridicule.

Hay was saying that allowing the government to suppress falsehoods would make the government the judge of truth–and that that would mean the end of free thought. He went on to argue that there is nothing to fear from falsehoods under a regime of free speech, that “truth was always equal to the task of combating falsehood without the aid of government; because in most instances it has defeated falsehood, backed by all the power of government. . . . [T]ruth cannot be impressed upon the human mind by power, with which therefore, it disdains an alliance, but by reason and evidence only.”

And Hay wasn’t alone. A popular 1801 tract by John Thomson took up the issue of censoring falsehoods and concluded that, “Let not the Government interfere,” even in the communication of blatant untruths. “In no case whatever use coercive measures. . . . Coercion may silence, but it can never convince.”

In his Notes on the Virginia Resolutions, a tour de force in defense of free speech, James Madison argued that trying to limit censorship to false facts and opinions was hopeless. In order to protect the discovery and communication of true ideas, Madison argued that the Founders had made sure to erect an unqualified, unrestricted principle barring the government from restricting speech: “[I]t would seem scarcely possible to doubt that no power whatever over the press was supposed to be delegated by the Constitution as it originally stood; and that the amendment was intended as a positive and absolute reservation of it.”

In my next post, I will discuss the Founders discussion of the second kind of case: ideas that should supposedly be suppressed on the grounds that they “incite violence.”