Speech Has Never Been Free, and That’s Good

Censorship always exists. The question is to what end.

Illustration: Daniel Zender

TThe one thing speech isn’t is free. There are costs to those who produce it and costs to those who are subjected to it. Of course, the term “free speech” does have a clear meaning under the Constitution: If you want to say something, you don’t have to ask the government’s permission, and you won’t be punished by the government for saying it. But even this freedom from state interference with your speech has its limits, and it does not protect you in private life, where speaking out carries with it the risk of censorship and penalty.

Supreme Court First Amendment decisions have told us that flag burning is speech and that saying to a policeman, “You’re a fascist,” isn’t. If speech can be categorized as “symbolic action” (because it has an effect the state finds distressing) and action can be categorized as speech (because it sends a message the state wants to protect), isn’t the distinction infinitely manipulable? How do you draw the line, and who should be authorized to draw it?

Suppose we could answer those questions and come up with a generally accepted definition of what is speech and what isn’t. With that definition in place, is a citizen free to engage in speech without fear of repercussions? Not really, for there are “time, manner, and place” restrictions that limit your free-speech rights by telling you, for example, that you can’t deliver your message from a truck with a loudspeaker while driving through a residential neighborhood at two in the morning. Neither, if you are a nurse, can you lobby for higher wages and better working conditions in the middle of an operation. How many of these restrictions are there, and is there a point when their cumulative weight is so great that free-speech rights, at least in some circumstances, have been reduced almost to nothing?

Let’s assume (as a hypothesis, not a fact) that those questions, too, have been answered, and we have identified the scope of free-speech rights and a rough sense of the situations in which they can be invoked. Are we home free? Not quite, because inevitably someone will cite competing interests — the moral fabric of society or the mental health of individuals — and argue that they should outweigh the First Amendment in some contexts. In response, the strong First Amendment proponent will reaffirm the abstract principle and say that it should trump every time. But how do we think about those occasions when allowing speech to flow freely, no matter what its effects, causes harm to others? Is that harm just collateral damage, the necessary cost of doing First Amendment business? Is the First Amendment so basic a value that it must be upheld even when it appears to facilitate evil?

The First Amendment is a participant in the partisan battle, a prize in the political wars, and not an apolitical oasis of principle.

Those who believe it is echo a remark incorrectly attributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” In other words, however loathsome and reprehensible an idea or proposition may be, the core democratic principle of freedom of speech requires us to air it and forbids us to repress it. Sounds good, but think about it. The argument that the more despicable the speech, the more it merits protection makes sense only if we can be confident that when abhorrent views are given a place in the conversation, they will be exposed for what they are and rejected in favor of better views.

Far from being a concept that stands to the side of the fray, free speech is right in the middle of the fray, where it is wielded as a sword by all parties to a controversy: “You say you’re for free speech, but the truth is that we are, so take that!” The party that succeeds in claiming the free-speech label for its side is more than halfway to victory. “It chills free speech” is almost always a winner, but free speech is not what wins, because free speech is not an independent value.

Many U.S. citizens reflexively affirm the value of free expression and don’t require that it be justified by reference to some other value. Strong free-speech advocates don’t ask, “What is the First Amendment for?” Merely to pose that question would be to imply that the rationale for the amendment is to be located in a goal prior to it. Freedom of speech, on the strong view, is a freestanding value. Yet any celebration of that value typically includes a list of the benefits free speech provides. It facilitates the search for truth, or it provides the free flow of information necessary to an informed citizenry, or it opens a space for dissent and thereby provides a counterweight to the pronouncements of entrenched authority.

But if these are the goals the First Amendment helps us to realize, there must be some forms of speech that impede rather than aid their realization — speech that blocks or undermines the search for truth, speech that corrupts rather than informs the minds of citizens, speech that shuts down the democratic conversation rather than keeping it open. It follows that regulating such speech, rather than violating the First Amendment, is an act of fidelity to it.

If you have any answer at all to the question “what is the First Amendment for?” you are logically committed to censorship somewhere down the line, because your understanding of the amendment’s purpose will lead you to regulate or suppress speech that serves to undermine that purpose. We see once again that censorship is not a violation of the First Amendment but the necessary vehicle of its implementation. The choice is never between free speech or censorship but between different paths of censorship.

Free-speech doctrine is a grab bag of analogies, invented-for-the-occasion arguments, rhetorical slogans, shaky distinctions, and ad hoc exceptions to those distinctions, all combining to make it an artifact of the very politics it supposedly transcends. That’s a mouthful, but what it means is that the First Amendment is a participant in the partisan battle, a prize in the political wars, and not an apolitical oasis of principle. That’s my first thesis. My second thesis is that there is nothing wrong with that.

A First Amendment whose content and operations are through and through political is fully capable of doing the work we need it to do. Indeed, it may be more capable, because, freed from the stringent demand of principle — the demand that freedom of speech be the rule without exception and no matter what the circumstance — the amendment can display the flexibility required to make useful sense of the many situations in which debates about speech emerge.

Copyright © 2019 by Stanley Fish. From the forthcoming book The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump by Stanley Fish, to be published by One Signal Publishers, a Division of Simon & Schuster, Inc. Printed by permission.

Davidson-Kahn Distinguished University Professor of Humanities and Law at Florida International University and a visiting professor of law at Cardozo University

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