What Did the Founders Think about Freedom of Speech?

The natural right of an individual to speak freely has been under assault by the Left for decades. With the election of Donald Trump, the pace and ferocity of the Left’s attacks on the freedom of speech have only accelerated.

The urge among progressives to codify into law “hate speech” exceptions to the First Amendment—and even to repeal the freedom of speech altogether—is no longer the stuff of hushed fantasy on the Left. It is open and proudly spoken in the salons of D.C. and Berkeley. Members of the Orwellian-named Antifa movement attack anyone—from neo-Nazis to your run-of-the mill harmless conservative—who disagrees with the Left’s destructive ideology of identity politics.

Yet some speech is still considered more equal than others. Consider the media’s self-serving elevation of their right to speak over and against all other Americans. This has become hard to miss. Pompous news anchors with furrowed brows tell us in tones fraught with “concern” that President Trump’s refusal to be the media’s punching bag is something akin to third world authoritarianism. It is the stuff of a tyrant who wants to crush the press under his heel.

The typical conservative response to these attacks has been less than helpful. In some cases, they even abet the Left.

William J. Haun, a lawyer based in Washington, D.C., has penned an important essay at the Library of Law and Liberty blog that delves into these details. In the piece, he traces the feckless conservative response to the progressive rejection of free speech and attempts to shed light on the American founders’ understanding of free speech.

Haun notes that instead of arguing from a basis steeped in the American political tradition, conservatives have adopted an “absolutist” view of the freedom of speech that is fearful of “drawing principled distinctions.” “The Right…seems to find it an alluring posture given dominant cultural forces’ militant hostility to conservative views,” Haun argues.

Afraid of voicing any fundamental concerns regarding the consensus morality of the ruling class, conservatives resign themselves to make dubious utilitarian arguments that cannot possibly meet the challenge the Left has put forward. Nearly every contributor at National Review who writes on free speech, for example, regularly conflates speech that is obscene or vile with speech that is not harmful to the rights of others.

Underlying this “absolutist” rhetoric is the notion that “dissent from the dominant political and cultural orthodoxies (read: conservative views) would be protected” if “drawing content-based restrictions” was prohibited. But this is a fool’s errand. Lines will be drawn always. The real question is where such restrictions are—not if there should be any restrictions in the first place.

As Haun contends, the conservative “absolutist” position can easily descend into a deep moral relativism:

The absolutist position is akin to a compass without a magnet: Without any extrinsic source of objective value—right reason and objective truth—to allow political communities to assign worth to any speech, speech’s worth is determined only by individual perceptions, and these perceptions are informed by one’s passions. When those passions are aggregated, as has happened with Progressive dominance on college campuses, the ‘marketplace of ideas’ lacks any strength to stop a mob silencing views that do not accord with those of the dominant consumers.

Countering the Left’s view of justice requires putting forward an alternative view of justice that is grounded in transcendent principles of natural rights and natural law—the principles of the American Founding.

“A morally confident society—one possessing faith in its first principles,” Haun maintains, “can see a principled distinction between restricting the expression of armed neo-Nazis looking for violence, on the one hand, and truth-seeking, on the other.”

Haun is incorrect, however, in his conclusions regarding the American Founders’ “truth-seeking” principled approach to free speech.

He claims here and in previous essays that the founders’ view of free speech was to “facilitate truth-seeking on matters of public concern for the benefit of self-government.” But the founders’ understanding of free speech was in truth far more expansive than that. As Thomas G. West of Hillsdale College has noted, they held that individuals have “a fundamental right of noninjurious speech”—meaning speech that is not harmful to reputation, public morality, or the preservation of republican government.

In his Lectures on Law, James Wilson argued forthrightly for this position, which he called “a great and important political maxim”:

Every wanton, or causeless, or unnecessary act of authority, exerted, or authorized, or encouraged by the legislature over the citizens, is wrong, and unjustifiable, and tyrannical: for every citizen is, of right, entitled to liberty, personal as well as mental, in the highest possible degree, which can consist with the safety and welfare of the state.

The founders viewed the freedom of speech as a natural right that is, to quote West, “part of the overall natural right to liberty, which it is the main job of government to secure.”

An implication of this understanding is that freedom of speech is not simply confined to protecting political speech. West points out that neither in many state constitutions nor in the Bill of Rights of the U.S. Constitution is the freedom of speech limited to politics. Instead, as the letter the Continental Congress sent to Quebec in 1774 makes clear:

The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

This letter also explicates the second principle that West argues undergirds the Founders’ conception of the freedom of speech. In addition to being a natural right, free speech was often considered to be useful as a means to secure liberty. As the Massachusetts Declaration of Rights of 1780 states succinctly, “The liberty of the press is essential to the security of freedom in a state: it ought not, therefore to be restrained in this commonwealth.”

The founders maintained a sharp distinction between noninjurious speech, which government was not to interfere with by way of imposing prior restraint, and injurious forms of speech that government is “obliged” to punish. These latter forms of speech include personal libel (speech injuring an individual), seditious libel (speech injuring government), speech injurious to public health or morals (e.g., blasphemy, obscenity, public indecency, pornography, etc.) and speech “promoting injurious conduct” (e.g., speech used in the process of committing a crime). “The founders protected liberty but not licentiousness,” West concludes.

Donald Trump’s talk ofopening up” libel laws during the 2016 campaign, for instance, is consistent with the founders’ approach of taking injuries done to reputation seriously. The speech regime that has been established since New York Times v. Sullivan (1964) has undermined the freedom of speech rightly understood because it allows libelous speech concerning public officials to go unpunished. If the main duty of government is to protect persons and their property from violence and harm from others, as the Equal Protection Clause suggests, then the government’s abdication of the duty to enforce such laws is a threat to the stability of government itself.  

Recovering the founders’ understanding of free speech does not mean that we must graft their network of laws onto our statute books. Prudence is required in an age where the gulf that separates today’s morality from that of previous generations is larger than ever before. An education in the founders’ free speech principles and electing representatives who act on such principles would be a good start towards recovering a comprehensive understanding of free speech that is consistent with republican principles.

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