The stability of this country is balancing on a wire. I’m really not being hyperbolic when I say that the deepest of American institutions is at stake: that of the competency of the average citizen to participate in the democratic process; in other words, Republicanism (the philosophy; not the political party) and Representative Democracy.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.

-First Amendment, US Constitution, 1791.

The First Amendment is the first item in the Bill of Rights because it’s more important than a well-regulated militia (2A), the historically pertinent issue of martial quartering (3A), and even due process of law (4A-8A) or Federalism (9A-10A). Why it’s an amendment rather than part of the constitution could be considered an oversight by Madison and Hamilton, but that notwithstanding, I would (and will) argue two things:

  1. The right to Free Speech assumes several things about the speakers.
  2. That right and corresponding assumptions are collectively an indispensable cornerstone of democracy.

Unfortunately, this sacrosanct ideal is facing bipartisan opposition right now. Liberal college students seem to be making a habit out of opposing conservative speakers who come on campus. Meanwhile, numerous conservative legislators are following President Trump’s lead and delegitimizing the media (i.e. free press) and supporting him when he suggests that political opponents should be repressed or that news channels that publish news not flattering to the political incumbent ought to be shut down for political reasons.

Again, I really don’t think I’m being hyperbolic here, and I hope I’m wrong. But neither party seems to remember what the words “Free Speech” really mean. This post is a collection of thoughts and musings about the importance of free speech, and how it is being undermined in the current political climate. I’ll tie most of it together at the end, but this post is intended to read like an essay on ethics. That is, it’s supposed to beg more questions than it answers, and it’s logically cohesive with itself, but introduces ethical conundrums for both the author and the reader.

Political Repression vs. Social Consequences

The first amendment and subsequent non-discrimination policy ensure that free speech is free from political repression. This is to say that you can’t legally be killed or thrown in prison for espousing ideas that [pick your boogeyman: politicians, the majority, The Man, Evangelicals, The MSM] don’t like. This is not, I repeat, bold, and italicize, not, the same as saying there are no consequences for voicing your views. Some views may win friends; other may influence people; and still other views/opinions/standpoints/ideas/etc. may utterly alienate you from society. As a prime example, former Google employee James Damore sent his coworkers a controversial memo about gender equality and why women are underrepresented in the tech workforce. Damore was not arrested, stripped of voting rights, or otherwise politically repressed. He was, however, fired from his job and written about enough that any future HR interviewer will find his name (or any applicant unfortunate enough to share a name with him) plastered all over the internet. He will likely find freelance work here and there, but his stable, upper-class, bay-area lifestyle is probably gone forever.

Challenging the Zeitgeist can be an extremely valuable activity for society that ought to be encouraged. On the other hand, challenging the Zeitgeist has historically been a capital offense (e.g. Socrates, numerous prominent figures in the French Revolution, Malcolm X). The beauty of Free Speech is that you are (generally) free to say things without being arrested or killed by the State. Free Speech does not mean that others are required to like what you say or that social isolation as a result of one’s free speech is illegal.

Speech is Public

A corollary of this is that for society to respond to your views, those views must be spoken out loud. That is, Free Speech, properly understood, is inherently public. Anonymous speech is generally referred to as “thought.” We allow free private thought by not having thought police. Regulating thought is (currently, and hopefully forever will be) an utter impossibility, so it need not be spelled out in the constitution. Furthermore, because it is not spelled out as a right, the 9th amendment protects thought.

Unfortunately, the (in)famous Citizens United case completely misses the point on what speech is by making it anonymous. Citizens United declares two things: first that money is tantamount to speech, and second that disclosing speech in the form of donors–that is, saying “speech” out loud–is an infringement of Free Speech (this is, of course, a gross over-simplification of this landmark case, but these are the two points that relate to my larger argument). The first point is controversial in its own right, but it’s also exceptionally complicated, so I’m simply going to say that the latter point depends on the former, and leave it there. The second point, declaring that speech can be anonymous, strikes me as extremely dangerous for democracy. Not because it imbues corporations, labor unions, and 501(c)(4) entities with undue influence (though that is an interesting debate as well), but because it undoes a fundamental ethical assumption that makes Republicanism possible.

The Ethical Underpinning of Free Speech.

Adam Smith, an intellectual giant of the Scottish Enlightenment, is best known for An Inquiry into the Nature and Causes of the Wealth of Nations (aka ‘Wealth of Nations’). However, in his own mind, he considered his other book, The Theory of Moral Sentiments, to be his magnum opus, and in fact he was revising both books simultaneously. Wealth of Nations made Adam Smith the Father of Modern Economics and Capitalism, but Theory of Moral Sentiments is a necessary, though often overlooked, prequel to Wealth of Nations, and the ideas discussed are undeniably necessary for capitalism to function as described in Wealth of Nations.

Implicit in Smith’s description of markets (Wealth of Nations) is an assumption about human behavior and morality (Theory of Moral Sentiments): “Man naturally desires not only to be loved, but to be lovely.” That is, people want others to regard them with esteem and they want to feel worthy of that esteem. This natural desire drives our social interactions with others around us and causes us to act in such a way that while acting in our own self interest we still respect the interests of others and have a keen moral inclination towards sympathy (harmony) with others. In the context of markets, this means that individuals are generally wont to behave in such a way that increases their social esteem, which is to say treat others fairly.

I obviously can’t do Smith justice in a couple paragraphs, so I highly recommend several other commentaries on Smith’s work:

My point in bringing up Smith (besides pedantic erudition) is to point out that there are certain moral underpinnings to our most sacrosanct political institutions, but those underpinnings are never made explicit in our constitution or other expositions of these institutions. In the minds of the authors of these institutions (e.g. Monroe, Smith, Mill, Friedman, Washington, etc.), these assumptions didn’t need to be made explicit in their writings; they were so obviously necessary that explicitly calling them out in writing at the time would have seemed trite. This is true of markets, and this is absolutely true of the constitution in general and the first amendment in specific.

Everyone is entitled to their own opinions, but not their own facts

Daniel Patrick Moynihan

Free speech encourages free debate, eccentric innovation, and constructive criticism of the zeitgeist, but it assumes a level of integrity. This assumption has actually been made explicit in jurisprudence, but I believe the corollaries of that decision have not been absorbed into the public psyche. Yelling “Fire!” in a crowded area, when no fire is present, is illegal. That is, lying to provoke panic that can cause measurable harm (lawyer-speak for ‘getting trampled to death’) is illegal. There are “limits” to Free Speech under the First Amendment. I use quotes there because these so-called restrictions just make explicit what was previously implicit: you are free to say anything you want, but we’re assuming you’re mature and virtuous enough to not be a puerile prick about it.

Summary of Costs of Free Speech

Under the prescience of the First Amendment, speech is “free,” but as I’ve noted above, that freedom only applies to freedom from State oppression. There are still social costs to speaking one’s mind, as there should be. A commitment to truth and integrity is not only implied in the granting of free speech, but it is truly necessary for a sustainable, functional Democracy. In the light of Citizens United this means putting your mouth where your money is. Further, it means listening to people who disagree with you–whether in the news, blogosphere, or on-campus talks. That’s all inherent in free speech. As it should be.

Speech is inherently a public and visible activity. If you’ve ever interacted with another human being, you know that words have meaning and power, and what you say is subject to the scrutiny of the recipient, and that the First Amendment cannot protect you from the consequences of their response–positive or negative.

These Costs are Worth It

If it’s not clear at this point that I love the First Amendment, then I’m clearly a failure as a writer. There are costs to speaking freely, but this is not in any way to diminish the obvious fact that the benefits of Free Speech exceed these costs by orders of magnitude. That said, the level of current public discourse suggests that we’ve forgotten the moral underpinnings of this right and the cost benefit analysis. What’s at stake if we forget these truths? Well, for starters, the Republic itself.

According to Aristotelian political theory, each form of government had its merits but inevitably devolved into its most oppressive incarnation until it was overthrown. Thus a monarchy would become a tyranny, only to be overthrown by an enlightened aristocracy, which slid into repressive oligarchy until popular democracy overwhelmed the oligarchs, opening the door for anarchy, and so back to the stabilizing hand of monarchy again.

Mike Duncan (taken only slightly out of context)

In fear of sounding like a right-wing platitude, we’ve lost the element of personal responsibility in our discourse. Absent personal responsibilities for the social consequences of our words, we devolve into either guarded bullshit, unwilling to address controversial topics (read: topics that are meaningful and worth discussing) or completely eschewing objective truth in favor of “alternative facts.”

The United States and the world at large are facing deep issues. As one of many examples, we have racial tensions ready to boil over in the US. How are we supposed to have a truth and reconciliation moment when we can’t agree what truth is? It’s politically incorrect to call a spade a spade: e.g. NYT columnist David Brooks calling inner city culture maladapted to modern society and dismissive of education. On any individual point, it’s tough to refute Demore’s assertions. A recent NYT article designed to humanize White Nationalists drew sharp criticism for pointing out the obvious: Nazis are people. I’m in no way defending Nazis or Fascism, both of which I find despicable, but they are people and deserve the same rights as you, Antifa, Donald Trump, and me. Recognizing that fact may humanize them, but it doesn’t normalize that behavior.

People with the aim to incite violence, social unrest, or just general disorder and fear based on false or twisted truths are despicable shells of how God intended us to be. That said, you can’t legislate that people not be dicks, and that’s just something we have to live with. Nevertheless, I would argue that such behavior is not protected under the First Amendment. Stirring up fears over bullshit allegations of terrorism, massacres, or the loss of American society, when all such fears are factually unfounded are morally deplorable. Still, because morality is such a difficult topic and Government cannot (and should not) decide what is or is not factually founded or objectively true, there exists an uneasy amount of ambiguity. But if we were to cede authority of ‘arbiter of truth’ to a semi-accountable body of politicians I can only believe that the result would be disastrous: self-interest turning to selfish ambition in the world of logrolling and realpolitik.

Ben Franklin allegedly quipped that this country is “A Republic, if you can keep it.” Absent a proper understanding of Free Speech, the most foundational of all rights, I’m beginning to wonder if we can keep it. When both sides only support free speech when the speaker agrees with them, we’re at risk of losing that Republic.