Why we have free speech in America – Part II

June 18, 2009 by Don Watkins

In my last post, I pointed out how today’s opponents of free speech would do well to consider the arguments made by the greatest champions of that freedom: America’s Founding Fathers. There I discussed their arguments against restricting “blatantly false” ideas. Today I want to look at how the Founders addressed the second restriction on free speech advocated by citisven at the Daily Kos: the suppression of ideas that supposedly “incite violence.”

The Founders argued that although it’s true the government can stop people from “inciting violence,” ideas per se cannot incite violence. To be charged with inciting violence, one had to commit what they called an overt act.

There is a crucial distinction, the Founders held, between ideas and force. There is a difference between goading people into opening fire on Holocaust museum visitors, and claiming that the Jews are evil or the Holocaust is a myth. The former is an overt act the government can rightfully prohibit. The latter, as false and disgusting as it is, is the communication of an idea, which the government must not proscribe. “The Thought,” wrote Montesquieu, whose writings influenced the Founders on this point, “must be joined with some sort of action.”

This was a revolutionary idea. Prior to the distinction between acts and ideas, the common view had been that any communication having a “tendency” to lead to violence could be suppressed. But the Founders saw that this, in the end, enabled the government to suppress any idea. Take the murder of abortion doctor George Tiller. There have been tireless references in the media to his killer’s “anti-government” ideas. It doesn’t take too much imagination to project a left-wing politician like Barney Frank concluding that “anti-government” ideas have a “tendency” to lead to violence, and calling for the suppression of critics of his tireless efforts to expand government power.

The Reverend Robert Hall put it this way in 1793:

[W]hen the example has been introduced of suppressing opinions on account of their imagined ill tendency, it has seldom been confined within any safe or reasonable bounds. . . . The law hath amply provided against overt acts of sedition and disorder, and to suppress mere opinions by any other method than reason and argument, is the height of tyranny.

There were people at the time of the Founding who believed the government should suppress views that had a “tendency” to lead to violence: they were the supporters of the Sedition Act of 1798, which put 10 people in jail for speech critical of the government. (See the Majority Report on the Sedition Act debates.)

I’ll remind citisven and anyone else who advocates censoring ideas based on their “tendency” to lead to violence of the words of Thomas Jefferson:

[T]hat to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them.

Notice in both issues–both with “blatant falsehoods” and ideas that supposedly “incite violence”–the Founding Fathers defended free speech on principle because they recognized that any exceptions would establish the opposite principle: government control of the mind. This is the basic issue that modern opponents of free speech like citisven are blind to. They casually suggest that America limit free speech, which they justify by invoking arguments demolished by the heroes who established that right centuries ago. We listen to them at our own peril.