Freedom of Speech in the Public Square

Posted by Keith Tidman

Free to read the New York Times forever, in Times Square

What should be the policy of free society toward the public expression of opinion? The First Amendment of the U.S. Constitution required few words to make its point:

‘Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.’

It reveals much about the republic, and the philosophical primacy of freedom of speech, that this was the first of the ten constitutional amendments collectively referred to as the Bill of Rights.

As much as we like to convince ourselves, however, that the public square in the United States is always a bastion of unbridled free speech, lamentably sometimes it’s not. Although we (rightly) find solace in our free-speech rights, at times and in every forum we are too eager to restrict someone else’s privilege, particularly where monopolistic and individualistic thinking may collide. Hot-button issues have flared time and again to test forbearance and deny common ground.

And it is not only liberal ideas but also conservative ones that have come under assault in recent years. When it comes to an absence of tolerance of opinion, there’s ample responsibility to share, across the ideological continuum. Our reaction to an opinion often is swayed by whose philosophical ox is being gored rather than by the rigor of argument. The Enlightenment thinker Voltaire purportedly pushed back against this parochial attitude, coining this famous declaration:

‘I don’t agree with what you have to say, but I’ll defend to the death your right to say it.’

Yet still, the avalanche of majority opinion, and overwrought claims to ‘unique wisdom’, poses a hazard to the fundamental protection of minority and individual points of view — including beliefs that others might find specious, or even disagreeable.

To be clear, these observations about intolerance in the public square are not intended to advance moral relativism or equivalency. There may indeed be, for want of a better term, ‘absolute truths’ that stand above others, even in the everyday affairs of political, academic, and social policymaking. This reality should not fall prey to pressure from the more clamorous claims of free speech: that the loudest, angriest voices are somehow the truest, as if decibel count and snarling expressions mattered to the urgency and legitimacy of one’s ideas.

Thomas Jefferson like-mindedly referred to ‘the safety with which error of opinion may be tolerated where reason is left free to combat it’. The key is not to fear others’ ideas, as blinkered censorship concedes defeat: that one’s own facts, logic, and ideas are not up to the task of effectively put others’ opinions to the test, without resort to vitriol or violence.

The risk to society of capriciously shutting down the free flow of ideas was powerfully warned against some one hundred fifty years ago by that Father of Liberalism, the English philosopher John Stuart Mill:

‘Strange it is that men should admit the validity of the arguments for free speech but object to their being “pushed to an extreme”, not seeing that unless the reasons are good for an extreme case, they are not good for any case.’

Mill’s observation is still germane to today’s society: from the halls of government to university campuses to self-appointed bully pulpits to city streets, and venues in-between.

Indeed, as recently as the summer of 2017, the U.S. Supreme Court underscored Mill’s point, setting a high bar in affirming bedrock constitutional protections of even offensive speech. Justice Anthony Kennedy, considered a moderate, wrote:

‘A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. . . . The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.’

It is worth noting that the high court opinion was unanimous: both liberal and conservative justices concurred. The long and short of it is that even the shards of hate speech are protected.

As to this issue of forbearance, the 20th-century philosopher Karl Popper introduced his paradox of tolerance: ‘Unlimited tolerance must lead to the disappearance of tolerance’. Popper goes on to assert, with some ambiguity,

‘I do not imply . . . that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise. But we should claim the right to suppress them if necessary even by force’.

The philosopher John Rawls agreed, asserting that a just society must tolerate the intolerant, to avoid itself becoming guilty of intolerance and appearing unjust. However, Rawls evoked reasonable limits ‘when the tolerant sincerely and with reason believe that their own security and that of the institutions of liberty are in danger’. Precisely where that line would be drawn is unclear — left to Supreme Court justices to dissect and delineate, case by case.

Open-mindedness — honoring ideas of all vintages — is a cornerstone of an enlightened society. It allows for the intellectual challenge of contrarian thinking. Contrarians might at times represent a large cohort of society; at other times they simply remain minority (yet influential) iconoclasts. Either way, the power of contrarians’ nonconformance is in serving as a catalyst for transformational thinking in deciding society’s path leading into the future.

That’s intellectually healthier than the sides of debates getting caught up in their respective bubbles, with tired ideas ricocheting around without discernible purpose or prediction.

Rather than cynicism and finger pointing across the philosophical divide, the unfettered churn of diverse ideas enriches citizens’ minds, informs dialogue, nourishes curiosity, and makes democracy more enlightened and sustainable. In the face of simplistic patriarchal, authoritarian alternatives, free speech releases and channels the flow of ideas. Hyperbole that shuts off the spigot of ideas dampens inventiveness; no one’s ideas are infallible, so no one should have a hand at the ready to close that spigot. As Benjamin Franklin, one of America’s Founding Fathers, prophetically and plainly pronounced in the Pennsylvania Gazette, 17 November 1737:

‘Freedom of speech is a principal pillar of a free government.’

Adding that ‘... when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins’. Franklin’s point is that the erosion or denial of unfettered speech threatens the foundation of a constitutional, free nation that holds government accountable.

With determination, the unencumbered flow of ideas, leavened by tolerance, can again prevail as the standard of every public square — unshackling discourse, allowing dissent, sowing enlightenment, and delivering a foundational example and legacy of what’s possible by way of public discourse.