Our Emersonian First Amendment: An Essay by Nathan Goetting
January 13, 2022
By Nathan Goetting
Professor of Criminal Justice & Jurisprudence
OUR EMERSONIAN FIRST AMENDMENT
We’re in the midst of a free speech crisis. The First Amendment to the U.S. Constitution, as we’ve come to know it over the past century, is in trouble.
Our relationship with our own free speech principles has always been more aspirational than actualized. Over the past century the censorial periods like the McCarthy era, COINTELPRO during the Vietnam War, and the federal government's overreaction to 9/11 resulted in repressive legislation, surveillance, and censorship that challenged our resolve as a nation committed to freedom of conscience and expression. However, after each of these temporary panics, we eventually came to our senses and reverted back to our liberal ideals. Joseph McCarthy was censured by the U.S. Senate and died in disgrace. Vietnam draft dodgers were pardoned by President Jimmy Carter. Adversarial journalists won Pulitzer Prizes for reporting on the illegal surveillance networks put in place after the attacks of 2001. The changes were scary but not permanent.
Today’s free speech crisis might be different. Those of the past involved a failure to live up to our ideals. Lately we’ve begun to lose faith in them altogether.
The problems stem from two causes. The first has always been with us and, given human nature, always will be. The second is unprecedented and, like a political whirlwind, is beginning to wipe free speech from the landscape.
1) Free Speech is Unnatural and Counter-intuitive
The idea that every citizen should be allowed to think as he wishes, and speak what he thinks, is among the most revolutionary in history. As a political and legal principle, it’s downright bizarre. Even among the most liberal and permissive nations on earth, it's never really been tried. Freedom of Expression, as developed by the Supreme Court over the past century, ranks up there with “turn the other cheek” as a radical and difficult-to-follow moral and political ideal.
One of the core functions of government is to punish harmful conduct. Citizens expect that from the state and get anxious when that expectation isn’t met. For that reason, every western nation has a lengthy criminal code. In a well-functioning criminal justice system, the government is most determined to punish conduct that it’s most certain causes harm. Conduct whose harmfulness is in question, like marijuana possession or exploding certain types of firecrackers, might be punished reluctantly or not at all. The severity of a punishment usually exists in proportion to the amount of harm caused. The most serious crimes, murder, rape, kidnaping, and so on, are those that the government is certain will cause a lot of harm. Peoples expect their governments to zealously act to rid these behaviors from society. It’s an inclination derived from our most primitive and urgent instinct—self-preservation.
Those who argue that such fearful conduct should go unpunished, or perhaps even just treated a little more leniently, naturally arouse fear and invite suspicion. They're condemned as either being indifferent to the harm the conduct causes, more ominously, carrying a hidden desire to engage in it themselves. Imagine someone who strongly advocates for the decriminalization of dogfighting, for example. Or someone convinced that the laws punishing peeping toms are actually unfair, when you think about it. What instinctive reactions would most have when hearing those opinions, do you think?
These truisms apply to speech, as well. Western democracies may be permissive in countless other ways, but only the United States has anything like a First Amendment protecting the expression of harmful ideas. Canada, for example, has enacted a series of criminal laws proscribing "hate speech," the violation of which can be years in prison.
Danish human rights activist Jacob Mchangama has written with alarm that Germany’s online censorship regime—implemented under the Network Enforcement Act of 2017 and known as the “Digital Berlin Wall”—is finding eager imitators around the world, in democracies and autocracies alike. In every corner of the globe, it seems, states regard an unregulated internet, chock-full of offensive ideas and pictures, as an intolerable threat. (That any government, but especially the German government, is confident enough in its own omniscience and moral standing to punish “hate speech” and “misinformation” is an irony perhaps you’ll join me in savoring.) Because the Canadian and German governments are convinced that hate speech and misinformation cause harm, they do what comes naturally and intuitively—they punish it.
Our First Amendment stands foursquare against these impulses. It presumes, requires, actually, a shared national conviction that the short term harms concomitant with tolerating harmful speech—by liars, racists, perverts, terrorists, the entire parade of horribles—are ultimately redeemed by long term benefits that will make us a freer, happier, and more advanced society. To enjoy these benefits, we must constantly work to defeat our urge to silence ideas we hate. As Justice Oliver Wendell Holmes, Jr. once put it:
To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas…
This is a daunting task. The First Amendment flatters us with the presumption that our capacity for reason, resilience, and delayed self-gratification is strong enough to remove the coercive power of the state from our intellectual, social, and political disputes. No other nation on earth has dared give human beings so much credit.
This radically libertarian interpretation of the First Amendment didn’t fully emerge until, in the midst of patriotic war fever, congress passed laws punishing anti-war speech so severely that two Supreme Court justices, the aforementioned Holmes and Louis Brandeis, began to worry that their enforcement was changing our identity as a nation. The Espionage Act of 1917 and the Sedition Act of 1918 put anti-war speakers around the nation in prison, many, including presidential candidate Eugene V. Debs, with sentences of ten or more years. After originally voting to uphold them, these two Harvard intellectuals eventually realized that what valued most about America—our democratic governance, individual liberties, the bustling exchange of ideas—seemed to be put in jeopardy by these laws. For many years they wrote mostly in dissent, but ultimately Holmes and Brandeis would convince the Court, and ultimately the public, that tolerating political dissent was a principle of “Those who won our independence” and at the core of America's greatness. They urged us to take pride in having the courage to embrace "freedom for the thought that we hate."
The Supreme Court overturned the criminal conviction of a political radical for the first time on free speech grounds in 1927. Since then free speech, even for the most hated among us, has become a distinguishing feature of our national self-definition. In the 1989 case of Texas v. Johnson, for instance the Supreme Court ruled that a protesting anarchist in Texas, tailor-made for a 20-year prison sentence in 1919, had a First Amendment right to publicly burn an American flag in opposition to the government. In his opinion for the Court, Justice William J. Brennan, Jr. wrote that the majority of Americans who are offended by the sight of an intentionally burned American flag have a remedy: they are free to wave their own. This is America, after all.
The Court continues to protect these speakers, even though the rage and psychic harm they cause can be substantial. For instance, in 1992 the Court overturned the conviction of a Ku Klux Klan leader who had burned a cross in view of motorists and other onlookers along a public highway during a gathering. The sight of the fiery cross understandably bothered one of the witnesses in the case. Historically burning crosses have presaged horrific acts of violence and this type of symbolic expression could create a reasonable fear of bodily harm. However, the Court ruled in Virginia v. Black that the state law presuming that crossburning conveys an intent to intimidate violated the First Amendment and struck it down, overturning the Klansman’s conviction.
A more recent case involved an energized gaggle of cultists known as the Westboro Baptist Church. To maximize publicity for their church, members protested outside the funeral of a marine killed in action by carrying signs with insulting, provocative messages on them intentionally designed to shock and cause emotional distress. “God Hates You” and “Thank God for Dead Soldiers” were among the tamest. The dead marine’s father successfully sued them and won a large amount in damages. The United States Court of Appeals for the Fourth Circuit reversed the judgement and the Supreme Court upheld the reversal. Quoting Justice Brennan’s opinion in another case, Chief Justice John Roberts reminded us that “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’" And for that reason “What Westboro said, in the whole context of how and where it chose to say it, is entitled to "special protection" under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.”
For the past few generations our case law has been replete with such cases. It’s extraordinary. In case after case the Court has made it clear that even ideas that cause great pain and attack the values we hold dearest—ideas that the vast majority would have silenced--must be tolerated.
Our faith in this unique “experiment” in freedom of expression, as Justice Holmes called it in a dissent attacking the Sedition Act of 1918, may have reached its zenith, however, in 1969 when the Court unanimously overturned the conviction of another Klansman, Clarence Brandenburg. Amid a torrent of racist nonsense, Brandenburg threatened to take his band of masked and armed would-be marauders to Washington D.C. and take “revengence” against the federal government that, he claimed, had become hostile to whites like himself. Brandenburg v. Ohio overturned the last of the repressive World War I-era precedents and implemented a new rule, largely derived from the opinions of Holmes and Brandeis, that made it nearly impossible for the government to punish politically subversive speech.
A year after the Court’s ruling in Brandenburg, a Yale professor named Thomas I. Emerson published a massive tome titled The System of Freedom of Expression. In it he interprets and synthesizes countless judicial opinions as part of an effort to explain how and why, for the first time in world history, a great nation had become committed to this great experiment in freedom of conscience and expression. Emerson explains, with grand vision and in granular detail, the benefits of tolerance, how the harms created by dangerous speakers can be minimized without censorship, and crucial role the Supreme Court plays as a check against the natural inclinations toward censorship that exist throughout the rest of society.
Free speech provides four types of benefits. Emerson call them “premises.” For reasons of clarity and brevity, I’m going to describe them with titles he never used but I hope he wouldn’t have minded.
1. The Socratic Benefit: Freedom of expression is “an essential process for advancing and discovering truth,” Emerson writes. It is indispensable to intellectual advancement. To distinguish truth from falsity one must be able to consider every claim and interrogate, wherever facts and reason dictate, until even the most curious minds are satisfied. Even false or pernicious claims can often be instructive by compelling reexamination and reinforcing old beliefs with new confidence. (Ridiculous ones can simply be ignored.)
It’s this premise that animates Justice Oliver Wendell Holmes’s storied “marketplace of ideas” theory of the First Amendment. “[T]he best test of truth,” Holmes tells us, isn’t adoption or approval by the state but “the power of the thought to get itself accepted in the competition of the market…That at any rate is the theory of our Constitution.” The First Amendment prioritizes truth-seeking above other social interests, however important, by prohibiting the government from interfering with the free exchange of ideas. “This is the method of the Socratic dialogue employed on a universal scale,” Emerson wrote in an article foreshadowing his great treatise.
Emerson has a simple answer to the current trend toward censoring online “misinformation”—regarding elections, vaccines, or anything else. “Discussion must be kept open no matter how certainly true an accepted opinion may seem to be.” In 1610 the Italian Astronomer Galileo Galilei invented the telescope. Shortly thereafter he published a paper that literally turned the solar system inside-out. By showing that the earth orbited the sun rather than vice-versa, he contradicted centuries of orthodox teaching supported by church and state. For spreading this dangerous “misinformation” Galileo spent the rest of life under house arrest. Our Emersonian First Amendment removes all constraints from attempts to answer life’s important most questions.
2. The Aristotlean Benefit: The First Amendment recognizes the natural capacity for creative greatness in human beings by protecting artistic and expressive talents. Aristotle thought of human beings as rational animals who, as they develop their talents, move from a state of potential to actual happiness. Sharing our honest thoughts and feelings with one another, in every medium but especially through works of artistic expression, is a necessary condition for individual flourishing. Free speech is a natural human right and censorship is an “affront to the dignity” of the individuals being silenced, Emerson writes. Silencing poets, musicians, filmmakers or anyone else expressing himself blocks the personal development of the speaker—and the listener—from realizing his potential for happiness. “For the achievement of this self-realization the mind must be free.”
3. The Jeffersonian Benefit: The boldest philosophical claim in Thomas Jefferson’s Declaration of Independence is that governments “derive their just powers from the consent of the governed” and that any government that doesn’t deserves to be overthrown. By adopting the Declaration, the Continental Congress insisted on a redefinition—an inversion—of the traditional understanding of state authority. Instead of British subjects, accountable to a king, Americans had decided that they would be American citizens, whose government would be accountable to them. The essence of democracy—even an indirect and often limited one, as would be created a few years later by our Constitution—is self-governance.
Meaningful citizenship—educated voting, reviewing policy, scrutinizing public officials—requires free and ready access to information and the ability to freely discuss politics with fellow citizens. According to Justice Brennan’s landmark opinion for the Court on this topic and quoted by Chief Justice Roberts in Snyder v. Phelps, “debate on public issues should be uninhibited, robust, and wide-open…” so that the truth-seeking function benefit of the First Amendment can aid the democratic process. Self-governance requires that the state be transparent and that discussion about its activity be unimpeded.
4. The Emma Goldman (“Safety Valve”) Benefit: The federal government hated early twentieth century anarchist Emma Goldman. J. Edgar Hoover reportedly called her “the most dangerous woman in America.” Law enforcement chased, harassed, jailed, and ultimately deported her. She was a fanatic for the cause of individual rights, particularly for workers, immigrants, women and other oppressed classes. No matter what the state did—and it did a lot over the years—she refused to be stopped.
She was a tireless public speaker. She travelled the nation for decades, captivating audiences and angering authorities by proselytizing her anti-government (and pro-free speech) beliefs. With the passage of the Espionage and Sedition Acts, described above, which made her anarchist and anti-war views officially criminal, she raged harder against the government that, she was convinced, was now expressly persecuting her and her comrades. For Goldman, the choice between complying with censorship laws and becoming a criminal was no choice at all. She was promptly arrested, imprisoned, convicted and deported to her native Russia. As the government continued to limit legal opportunities for anarchists like Goldman to express themselves, they made themselves heard through lawless conduct. While Goldman’s resistance seems to have been limited to speech, many on the militant fringe of the movement, now part of a criminal underground, resorted to bombings and other acts of terrorism.
This is the common psychology of members of radical political groups. While censorship may cause the less fervid to conform, this isn’t usually the case with the more zealous. Instead, it tends to reinforce their sense of unjust persecution. The transition from activist to terrorist, words to violence, can be swift.
The First Amendment promotes peace and stability by giving those with unpopular political views the opportunity to non-violently blow off steam. “[P]eople are more ready to accept decisions that go against them if they have a part in the decision-making process,” Emerson explains.
However, while the potential for violence diminishes, the psychic harm caused by protecting these speakers can be particularly severe, as with the Westboro Baptist Church, flag burning, and Klansmen cases described above. Moreover, if unchecked, these speakers might spread convince recruits and metastasize their message. To prevent the spread of bad ideas, the First Amendment allows for two remedies
First, while expression must always be tolerated, harmful conduct needn’t ever be. The government is always free—duty bound, even—to punish those who attempt to advance their dangerous ideas with criminal activity. For instance, tweeting that protesters should resist arresting police officers might be protected speech, but protesters who enact that advice by actually punching cops can be convicted and sent to jail.
Second, there is counter-speech. There is no surer way to halt the impact of a bad idea than by using reason and evidence to replace it with a good one. If someone finds a belief to be harmful or dangerous the First Amendment gives him the right to harness his contempt into an attempt to convince his fellow citizens not to adopt it. This type of political activity isn’t just helpful, it’s essential to the realization of the First Amendment’s Socratic and Jeffersonian purposes. “The greatest menace to freedom,” Justice Louis D. Brandeis writes, “is an inert people.”
This Emersonian First Amendment is at war with human nature and, for that reason, is always under threat. Our federal courts are composed of judges with life tenure whose mandate is to protect individual liberties, including freedom of expression. They are in a constant struggle with the political branches of government, who are more responsive to the censorial instincts of voters. Free Speech rights usually exist in direct proportion with the Court’s determination to protect them.
2) Continued Political Polarization Is Sure to Kill Freedom of Expression
Since Donald Trump’s capture of the Republican Party in 2016 the U.S. has been bifurcating into two angry and epistemically closed monocultures, red and blue, largely defined by their hostility toward one another. The past two presidential elections have resulted in the losing candidate’s party challenging the victor’s legitimacy as a fairly elected leader. Leading Democrats claimed President Trump’s 2016 electoral victory was the result of “collusion,” if not outright treason, with Russia. For years they promoted this view in media and most of that party’s controlling faction still seems convinced of it. The Democratically controlled House of Representatives impeached Trump twice, unprecedented in U.S. history, after nearly completely partisan votes. On the other side, President Trump himself still leads the Republican party and continues to insist that the 2020 election was “stolen” from him. Such internecine rancor hasn’t existed since the Civil War.
Each side is developing its own political, media, and social
institutions inside of which of sympathy for ideological opponents is
unwelcome and punished with shaming and exile. To unite in a common
commitment to understand one another by engaging in public discussion
and good-faith debate is to harm society by “platforming” and to
“legitimizing” dangerous persons and ideas.
The divide isn’t just political. It’s begun to suffuse every aspect of American life, even public school board meetings. Large areas of civil society that before 2015 had at least been nominally non-partisan and non-ideological, like journalism, academia, Wall Street, and Silicon Valley have picked sides. Angry people are always more certain and less curious. Everywhere there is less truth-seeking and more truth-preaching.
Republicans in the pre-Trump era would often appear on MSNBC and CNN, Democrats on Fox News. Not anymore. Newspapers and cable news networks have picked sides and they understand that the challenging, instead of repeatedly reinforcing, the views of their audience will cost them ratings. The gratification that comes from confirmation bias controls the content. Blue state universities are firing professors for uttering previously uncontroversial terms and phrases in class and letting their students heckle and harass guest speakers with unpopular opinions. They forget, or perhaps have chosen not to appreciate, that no two words are exactly alike. Each embodies a unique idea. Progressing societies expand, rather than contract, their vocabularies. To delete words from our collective lexicon, regardless of context and even when used in the spirit of inquiry, is to destroy the building blocks with which great literature and, through it, self-understanding is built. It calls the very purpose of the university into question.
Meanwhile, with equal contempt for academic freedom, red state legislatures are banning “critical race theory” from public school curricula. To both sides, winning is becoming more important than learning.
Instead of a shared national commitment to the benefits of freedom of expression, cultural leaders on both sides have, to use Orwell’s term, begun to function as "orthodoxy-sniffers.” They police their tribe’s ideological borders, using public humiliation, firings, and other forms of “cancellation” to their own tribe in line and the other at bay.
Both sides have already begun openly advocating for formal speech controls, each saying the understanding of the First Amendment we’ve grown accustomed to is incapable of thwarting the special dangers posed by the other.
Columbia University Law Professor Timothy Wu, a “Special Assistant” to President Joe Biden, has argued that the traditional liberal understanding of the First Amendment “obsolete,” a view that is rapidly becoming something close to Democratic Party orthodoxy. Because, for now, the Roberts Court can be relied on to enforce the First Amendment’s prohibition on direct government censorship of the internet, the Biden administration is censoring indirectly encouraging and assisting tech companies as they remove “misinformation” from their platforms. The President’s Press Secretary, Jen Psaki, has publicly acknowledged that the Biden administration “flags” content for these companies to censor on social media.
Meanwhile, Democrats in congress regularly threaten the leaders of these companies with regulation and public condemnation if they fail to scrub the internet of content they disapprove of. Trump himself has, of course, been effectively blacklisted from every major social media platform, as have many of his supporters. These may be the first few bricks in the American version of the “Digital Berlin Wall.”
That the Supreme Court prohibited the type of indirect censorship-by-pressure the Democrats are engaging in as far back as the 1963 case of Bantam Books, Inc. v. Sullivan hasn’t served as a deterrent. It will, as always, be up to the Court to enforce the First Amendment’s mandates if and when a case challenging these efforts reaches them.
Trump-Republicans no longer control either of the political branches. Now that they feel the force of the other side’s censorship, they’ve predictably resorted to using the First Amendment as a shield. Trump himself literally argued during his second impeachment trial that the Court’s Brandenburg ruling protects him from punishment for his January 6, 2020 speech to his followers amassed in Washington D.C., in which he urged them to “fight like hell” or “they won’t have a country anymore.” This newfound appreciation for the First Amendment is pure self-interest and expediency. “Free speech for me but not for thee,” no different than the Democrats.
Trump’s contempt for free speech and a free press was hardly hidden during his presidency. He regularly deployed phrases, like “fake news,” that were designed to discredit adversarial news media. Another slogan, repeated endlessly, “enemy of the people” echoed history’s worst dictators. Meanwhile, media that praised him were treated as friends and rewarded with special access to his administration. Sean Hannity got plenty of prime time interviews.
In 2016 Trump threatened to “open up our libel laws” so that he could sue journalists and “win lots of money.” In a 2018 tweet he warned the press that he might begin revoking White House Press Corp credentials as a response to negative— “fake”—coverage. According to Maggie Haberman of the New York Times, Trump’s Justice Department furtively collected the phone records of journalists working for The Washington Post, CNN, and The New York Times as part of an effort to discover the identity of confidential sources. The list of his attacks on freedom of expression is nearly interminable.
With each side increasingly describing the other as a mortal threat, the impulse to censor becomes more indomitable and our collective belief that all of us benefit from listening to one another becomes less tenable. Our experiment with an Emersonian First Amendment can’t last forever under these conditions.