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Free Speech and Delicate Flowers

With last week’s tragedy in France, it is important to pause and reflect on the importance of that most inimical of liberties, free speech.  It is with fortune that America is not a regular witness to physical retaliation when dissident and unorthodox ideas are communicated.  However, our national cultural and legal respect for free speech slowly dwindles. Its demise is not difficult to trace.

The notion that speech should be limited based on what others feel or how audiences might react has invaded serious First Amendment thinking.  Its most extreme example is found in the current happenings where cartoons are published that depict the Islamic prophet Mohammed.  Since it is considered by some to be blasphemous to depict the prophet of Islam, efforts to restrict this speech have been considerable.  But other variants of this approach are common.

Today, college campuses are a frequent source of speech restrictions based on the supposedly thin skin of students.  For example, the University of Iowa used to define sexual harassment as occurring “when somebody says or does something sexually related that you don’t want them to say.”  Texas A&M University’s code protected students’ “respect for personal feelings” and freedom from “indignity.”  Delicate flowers indeed.

Campaign finance law, that maze of red tape that attempts to regulate political speech, proves no better.  Most versions of campaign finance law try to delve into the intent of a speaker to determine if what someone is communicating is really an attempt to “influence an election.”  Speech that is proven capable of such influence is heavily regulated, sometimes so regulated that ordinary citizens often cannot afford accountants and lawyers to meet compliance demands.  And when citizens make their best guess about the law, as they recently did in Colorado, they sometimes fail and face penalties.  In the Colorado example, that amounted to $8,500 in fines per group that failed to properly register to speak under the law. 

Both these examples demonstrate another ideal gaining ground that weakens the First Amendment.  This is the concept that we simply cannot trust people with unregulated ideas.  They might be too influential, too harmful, or just too different.  What a cowardly and self-defeating premise. 

America is a nation where all ideas, good, awful, and zany, are welcome.  We need not regulate political power brokers of the day because they might communicate effectively.  We trust people with their own moral and intellectual agency to evaluate the persuasiveness of arguments.  We needn’t sterilize campus discussion because of the perceived sensitivities of students.  After all, universities should be the last bastions of open, wild, and radical ideas in conflict with one another.  Remove robust exchanges of conflicting ideas and you tear down the very ability of the individual to process these arguments in the first place.

The tragedy in France is a stark reminder about just how precious our First Amendment is in America.  Constant vigilance must protect it against notions that some groups and some people must be protected from ideas.  As Judge Learned Hand explained, the First Amendment “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all.”

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Wednesday, 23 August 2017
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