What is free speech?

 

The first amendment is the cornerstone of free speech in the US. Here we’re going to see how. We’re flying in.

Today, I want to speak to you about the first amendment and freedom of speech.

It’s well known the importance of this amendment due to the rights it protects. Here, I want to focus on how it protects free speech and the political circumstances that involved its incorporation into the US constitution.

So, I’m going to start by addressing the amendment to analyze it and put it in its historical background. That will allow us to see other legal benchmarks that influenced the draft of this amendment. Afterward, I’ll discuss how it works and its main political implications. That will lead me to make some reflections about freedom of expression nowadays at the end of this video.

 

History of the US constitution

 

The draft of the first amendment took place in a difficult political situation for the US after the ratification of the constitution. There was great opposition to it because many people feared the expanded powers of the federal government, something that could lead to the formation of a Leviathan.

During the constitutional convention, many complaints arose about this, and especially regarding the absence of a Bill of Rights. The Federalist faction was eager to form a new government with more powers, able to overcome the political problems they had experienced with the Confederation. For this reason, they rejected any attempt to incorporate a Bill of Rights in the draft of the constitution. They argued that the new government wouldn’t exercise any power not provided by the constitution. Hence, it was unnecessary to draft a list of rights retained by the people.

However, a significant number of delegates at the convention didn’t sign the constitution, and they showed their disagreement with the final draft. Even Benjamin Franklin, who signed the text, was dubious about the convenience of it. That made the ratification difficult in the States’ legislatures, and it was possible thanks to the promise of drafting a Bill of Rights.

Naturally, a Bill of Rights wasn’t new in the Anglo-Saxon political experience. Some antecedents worked as benchmarks for the constitutional reform. I refer to the English Bill of Rights, but also the Magna Carta.

Nevertheless, James Madison, who initially opposed the inclusion of a Bill of Rights, ended up changing his mind on this issue. He realized it would be politically convenient to address the Anti-Federalists’ objections, and by doing so, avoid a new constitutional convention that could undo the federal government. It’s still debatable the real reasons for this change in Madison’s view. But it seems the political convenience led him to change his opinion.

 

What the first amendment protects

 

What does the first amendment protect? It protects several rights, such as the free exercise of religion, the freedom of speech, the freedom of the press, the right to assemble peaceably, and the right to petition the government for a redress of grievances. They all are important, but here I want to pay special attention to free speech.

The amendment says Congress shall make no law abridging the freedom of speech, or of the press. It’s obvious the purpose of this provision, to limit the federal government by preventing it from passing a bill that harms freedom of speech or of the press.

I’m not going into the meaning of free speech here because I addressed it on another occasion.

Before the approval of this amendment and during the war of independence, Virginia’s legislature passed a Declaration of Rights that included the sentence, “The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.” I think it’s important to mention this because it shows the reasons that inspired its inclusion in the US constitution.

We can’t overlook the profound political implications of this amendment if we consider both the American and English experience. Regarding the English case, the seventeenth century was enlightening about the perils of a despotic government. They went through the successive attempts of Stuart’s royal house to impose an absolute monarchy. And they witnessed how it had damaged freedom of speech insofar as it is linked with consent, the pillar of representative government.

Absolute kings used to punish those who dissented by fining or arresting them. It was the way they stifled critics and any disagreement with their policies. That happened with MP’s who rejected the crown’s political measures and criticized them outright.

For this reason, the first amendment is, at the same time, a provision to limit the powers of the US government by forbidding any attempt to constrain the freedom of speech. Drafters were aware of the threat of curtailing this right because it would have altered the American constitutional system.

We can imagine what would happen if a majority in Congress decided to restrict free speech. It would affect those who disagree with that political faction because they would find difficulties in expressing their political opinions. In sum, it would lead to a new form of government, despotic in itself, in which consent would be unnecessary, and anyone who dissented would end up behind bars.

So, the clause of freedom of speech constrains the government and blocks any attempt to overpower the public sphere and rule without consent. In this way, the government itself is under the law, and the limit imposed by the first amendment individual autonomy to express dissent without fear of being prosecuted and punished.

That’s one of the most significant differences between a constitutional regime, in which no one is above the law and those dictatorial regimes in which the government rules without restrictions because it’s unnecessary the consent of the governed. In these despotic regimes, anyone who disagrees with the government might end up in prison. Therefore, your political opinion may be a crime if it doesn’t fit into the establishment ideological frame.

 

How the first amendment works today

 

The question here is, how does freedom of speech work today? The first amendment is still in force, so there is something to say about it.

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Most countries with the representative government have constitutional provisions like the first amendment to grant freedom of expression. This principle is widely accepted, and in some way, reflects the influence of the American experience.

But what matters here is that any individual can claim this right in courts. Then, the liberty of the individual to express their opinions and share information and ideas is under the protection of this constitutional provision. That grants society the possibility to create its own press to foster different views and beliefs. At the same time, it keeps the government away from any intervention in this realm.

However, there are some limitations to this right, and I discussed some of them on another occasion.

For now, I’ll mention some of them, and I’ll add one more that will deserve more attention.

Before enumerating some of these limitations, it’s important to stress that framers didn’t consider the freedom of speech as an absolute right. They knew there are some necessary constraints insofar as there are other rights that deserve protection and are also relevant. But also because this right doesn’t protect misconduct.

Among these limitations, we find libel, slander, intellectual property, sedition, incitement, the right to privacy, public security, perjury, and so on. Although freedom of speech is the bedrock principle of the constitutional system in the US, it’s not an absolute value or right. In this way, it’s relative insofar as it’s part of a broader network of rights and values. However, these constraints don’t allow the government to legislate against free speech. Otherwise, it would be a dead letter in the constitution.

 

Final thoughts

 

Nowadays, we are witnessing how free speech is being restricted in some western countries. The backdoor used by legislators to do so is the idea of hate speech. They resort to such categorization based on their criteria to determine what a hate speech is. In general, any speech that expresses hate or encourages violence against an individual or social group due to their race, religion, sex, or sexual orientation, is considered hate speech.

Naturally, they have their ideological perspective to categorize these speeches as hate speeches. In this way, they decide what’s acceptable and what isn’t. That is a glaring curtailment of free speech because these people consider they have moral superiority to do so. It’s, all in all, a way to impose a specific ideology because they claim it’s better in moral terms than any other.

That is nothing new insofar as every ideology vindicates its moral superiority over the rest ideologies. However, this ideology has adopted the form of political correctness, and it introduces itself as the only good, honest, and acceptable political stance. It allows their advocates to exclude other speeches. And this attitude is damaging free speech in various countries by passing laws and implementing public policies that reflect this particular view, and forbid the expression of certain points of view. That’s the case of Canada, the UK, Spain, France, and so on. Not the US, for now.

The future of free speech is uncertain, but something is sure, governments in western countries are shaking this principle with hate speech laws. By doing so, they’re not only banning ideas, speeches, opinions and so on, but also promoting, in a subtle way, the imposition of an official ideology. And what is worse, they’re proscribing dissent and opening the way to despotism. It’s up to us if we want to walk that path.

 

Question of the day

 

Question of the day! What do you think you can do to preserve or promote free speech in society? Post your opinion in the comments section below, and I’ll check it out.

 

Bibliography used:

Pincus, Steve, 1688: The First Modern Revolution

Brookhiser, Richard, James Madison

Stephen L. Schechter (ed.), Roots of the Republic: American Founding Documents Interpreted

Beeman, Richard, Plain Honest Men: The Making of the American Constitution

Rakove, Jack N., Original Meanings. Politics and Ideas in the Making of the Constitution

Stewart, David O., The Summer of 1787. The Men Who Invented the Constitution

Storing, Herbert J. (ed.), The Complete Anti-Federalist

Maier, Pauline, Ratification: The People Debate the Constitution, 1787–1788

Labunski, Richard E., James Madison and the struggle for the Bill of Rights

Locke, John, Two Treatises of Government

Morgan, Edmund, The Birth of the Republic

Sabine, George, A History of Political Theory

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