Why There Must be a Perpetual Vindication of First Amendment Rights
James Duvall
Every society consists of a ruling class and a ruled class; but between these two there is no permanent barrier; there is constant movement upward. It has been said that every people has the kind of government it deserves; conversely we may say that every government becomes the kind of government it is because of the way it has cultivated its people, whether through tolerance or force.
The Devil's servants may be in contro, but even this is felt to be better than the Inquisition, in which everything up to and including torture and death is used to silence the opposition. Once the opposition is declared to be the Devil's party this intimidation may be carried out legally.
Free speech was won through a political process, developed in parts of Europe and America, in which decisions affecting the political life of a society are made by the majority after having heard what the other side has to say about the matter in hand. This political process is the basis of the two party system. One side doesn't have to shout the other side down, since they agree to "play by the rules", and also that power tends to change sides over time.
Free speech is the necessary element of the entire process. There are a few rules:
Two - If you wish to stay in power you must incorporate the best ideas and policies of your opposition into your own program.
Three - Both parties must work together — a society cannot be all speed and change, and no brakes.
Four - Debate must center on issues that can be resolved through the political process.
First, The opposition generates information. Prof. von Hayek and others have show that a "managed economy" cannot generate enough information feedback to maintain itself, and get goods and services where they are needed. The free market, because it is not centralized, that is under the control of a central authority, can and does do this routinely. The same is true of political ideas as well. Nothing is more notorious than the gravitation of ideas in politics. Nothing is more certain than that the political opposition will bring out any unpleasant facts, insist on investigations, and so forth. Ambrose Bierce once defined incumbents as people of the livliest interest to outcumbents. No one should be above criticism, no free rides at the expense of the public.
There is a particularly instructive historical example that illustrates both the migration of political ideas, and how the attempt to silence opposition will normally force it into another channel. There was a time in England when the "Devil's servants" were not only not allowed to participate in government, but to the fullest extent of the law the government tried to "harry them out of the land". At that time, not so very long ago, heresy, and treason-by-words ( i.e. to disagree with current government policy) were often prosecuted and vigorously punished. In the time of Queen Elizabeth I, Sir Edward Coke (1552-1634) began his career as a prosecutor for the crown. As Attorney General he argured that no one should be allowed to question the government without remedy through the courts; that is, unless the government gave him permission to sue, or unless he could get legislation enacted in Parliament. It is fairly obvious that this excluded almost everyone in the country from saying anything negative about government policy. When later he was appointed to a new position as Lord Justice Coke, by King James I, he became the champion of the Common Law, opposed the royal power as embodied in the chancery, and would eventually argue with King James himself. That, of course, ended his career as a Justice, and the king issued a decree that would grant his subjects relief in equity, notwithstanding proceedings at Common Law against them. This is the position which prevailed, and which remains in effect in Britain to this day, though only when there is no adequate remedy at Common Law.
This might be held to have effectively silenced Coke, but he moved on to Parliament, and there, becoming the most powerful member of the house, he continued the struggle. If the King were not subject to the Common Law, then he must be subject to Parliament. Coke not only endorsed this position, but became the champion and exponent of Parliamentary supremacy. At one point he was arrested by order of the King, all his papers were seized, and five suits were brought against him. But it is his position that prevailed. His most powerful speech, delivered when he was some seventy-eight ears old, included this statement: "Take heed what we yield unto: Magna Charta is such a fellow that he will have no sovereign." Coke's biographer comments: "It was felt to be a supreme moment in the struggle for liberty of speech." It was a complete about-face to his initial position, for eventually the conflict between King and Parliament reached such a pitch that, for a time, the monarchy was completely abolished by Parliament. Coke has been suspected in his loyalty to principle, though his arguments in Parliament have the ring of conviction rather than the peculiar one of self-interest. As Charles Rembar remarks of this: "Some people get better as they get older."
The significance of this example is that political conflict taught Coke that power cannot be lodged in a single institution, no matter how venerable, that is above criticism; at least the supreme power must be lodged not with a single person, or with a few, but with one which represents as many people as possible. This certainly illustrates the gravitation of political ideas. He moved from prosecutor of free speech, to becoming its advocate, at least to belief in freedom of Parliamentary debate, with its loyal opposition; as a judge, however, he had been unwilling to concede the "unfettered power of Parliament." One interesting note is that he did not hesitate to express himself on other issues either: The main political opponent of Lord Coke, and the cause of most of his political troubles was Francis Bacon, who wrote the celebrated classic of scientific method, Novum Organum. Coke wrote a Latin inscription in his copy, saying that it had been given to him by the author. Under this he sketched a ship, and added a rhyme in English saying exactly what he thought of the book:
It deserveth not to be reade in Schooles
But to be freighted in the Ship of Fooles.
In places where opposition is not permitted to express itself it does not dissipate or disappear, it remains as a burden, and contributes nothing constructive to society. That criticism may go into temporary abeyance, but will ultimately surface; this may be illustrated by what happened after the death of Josef Stalin. Once when Khrushchev was censuring the departed Stalin at a public meeting, a voice from the audience broke in: "Why didn't you stop him?" Khrushchev roared in a thunderous voice: "Who said that?" There was instant silence in the room; no one dared to speak or move a muscle. Then Khrushchev spoke in a quiet voice: "Now you know why."
Freedom of speech does not mean freedom from the consequences of speech, but it does mean freedom from the fear of persecution and harassment. "Politics is the art of the possible." But it is only possible when every voice can be heard, and when it is agreed that those who wish to be heard are worth listening to, whether or not anyone personally agrees with them. The answer can never be to try to shut up the opposition. The only true method can be to bring a voice of sanity to the arena — a voice that, if it does not convince everyone (and it won't), will at least convince a majority that such and such a course, rather than others which have been proposed, is the best policy. There are no final solutions in politics; policies are only desirable or not for the current situation. To make that decision it is necessary and desirable to generate as much information as possible — and information means what people think — and ideally that will be means enough to satisfy at least a majority of those concerned.
Second, Freedom of speech is a correction for oppression due to self-deception of those in power. The democratic system has a built in power to tolerate a certain degree of untruth; but this is so only because other people can and will stand up and speak truth. Those in power often convince themselves that what they are doing is for the public good. All of us forget, from time to time, the great value of the criticisms offered us by our friends, colleagues, customers, and even our enemies, political or otherwise. There is a natural tendency to try to silence opposition. It hurts us to hear our pet theories and ideas denounced, as well as ourselves. Only a few times (and I cannot be certain how sincere the sentiments always were) have I heard men say, when spoken ill of: "I could have told them much worse!" The wish to control free speech is too easily used by the regulators for their own advantage. Mike Godwin, legal counsel to the Electronic Frontier Foundation, writes of this in his book Cyber Rights: Defending Free Speech in the Digital Age (New York: Time Books/Random House, 1998), p. 72:
"The human regulatory reflex is always with us. Still, we all have to think twice before calling for new regulation, because even the most ill-crafted and ill-considered regulatory scheme may become rules we are all going to play under in the twenty-first century. That's why it's important to understand that this is the first time in history the power of a mass medium lies in the hands of potentially everybody. For the first time the First Amendment's promise of freedom of the press will be kept for all Americans. A. J. Liebling famously commented that freedom of the press belongs to those who own one. Nowadays a whole lot more of us own one."What is comes down to is this: We should be very cautious about shutting people up.
Third, Freedom of speech requires good will on both sides. Every society is equipped to handle a certain amount of criminal behaviour. That is why we have courts and prisons; but the society cannot continue to function if this reaches critical mass — say, if it took most of the productive activity of the society just to deal with the criminal element within it. Even so, a democratic system can deal with misinformation and false claims, so long as these do not swamp the system. The system cannot continue with wholesale lies, false accusations, and rank bad faith between the parties. They cannot co-operate when each tries to demonize the opposition in order to create emotion and cloud issues. Eventually the voters lose confidence. It is like the story of the boy who cried "Wolf!" the moral of which was:
The truth itself is not believed,
From one who often has deceived.
Such a state of affairs reflects badly on both parties, and undermines the good faith necessary to uphold the system.
Fourth, The forum of free speech must be preserved. No one who claims that "the system doesn't work" should be paid attention to — they may speak (that is a given in our society), but we should realize that what is said is spoken in bad faith. If, however, they say: "Here's how the system can be improved," then we should be listening very closely.
Why should we pay no attention to a person who claims the system doesn't work? For this reason alone — their claim is self-contadictory. Let us say someone objected to freedom of speech — say (to make the example concrete) they object to this essay:
"You have no right to argue for freedom of speech — much less its perpetual vindication," an imaginary critic might argue, "because there are may of us who believe there is no such right. We have our rights too, and we have a right not to hear what you have to say."
This, of course, would be easy enough to answer: "You have just exercised the very right you claim to oppose. You argue against me, but do not wish to give me the right to oppose you."
This is essentially the position of anyone who proposes a public action, whether a ballot initiave, a zone change, or any kind of political campaign, who starts a debate, and then refuses to hear any criticism of it, or denies the right of any other party to oppose it, or attributes bad faith to the motives of those opposed. It is no more or less a right of free speech to propose a matter as to critique it, or oppose it. Such an inherent contradiction, if carried out with any determination to force others to abandon their rights of free speech, must dry up the springs of democracy. It leads to conflicts, rather than leading to a process in which conflicts can be resolved and agreements reached.
Fifth (and last), Not every issue can be debated publicly with good results. In the political process there are many recurrent issues — e.g. taxes, roads, military spending, etc. — though often they recur in new forms, or as a special problem which is at least somewhat different. There are always new issues as well. Many of them are social issues that come to the fore, often as a result of people being heard who traditionally have not been heard. It is often the case when people begin to be heard in earnest for the first time in a political forum they bring out issues that are not really capable of being dealt with politically. Social issues, issues of race prejudice, and private morality tend not to be subject to the political process. As voices are raised other people get defensive: Our core values cannot be up for vote! The attempt to inject non-negotiables into public dialogue has an unsettling effect. As attitudes change over time it is often found that many things once regarded as non-negotiable can indeed be effected. In the meantime both sides get louder, and listen less. They may resort toa dirty tactics, though no one knows where such steps will end. This may lead to perversions of free speech, the use of bribes, intimidation, suppression of fact, insinuations of all kinds, in short, everything said above about bad faith will apply.
Politics cannot resolve abstract issues, it must deal with concrete facts. It must protect rights, but it cannot create values. Issues which polarize debate, issues which involve fundamental matters that neither side can give up without giving up its essence, must be shifted to some arena other than the political. An Eastern philosopher said: "With those that follow another way it is useless to argue." To make such issues the major themes of political debate (of course they can be talked about — that is different) is to invite the destruction of the forum itself.
Is this destruction of the forum a real possibility? Nothing is more certain; it happened once in America on a national level, and it the single most significant event in the history of the United States. We call it the Civil War, and it represents a complete breakdown of the democratic process in national debate. War is not a continuation of policy, but the breakdown of policy. It is the use of force in dealing with other people. Prof. Avery Craven commented on this great national catastrophe: "Men ceased to reason together."
But it need not have been so. Dr. Craven reminds us that in the 1830's the Virginia legislature considered bill that were introduced questioning the economic benefits of slavery, as well as its social danger. Not only this, but the bills were voted on. By the time of the Civil War such discussions were next to impossible by any Southerner; almost no one, North or South, could discuss the issues rationally. Though compromises were effected from time to time before the war, this was by great effort in which the conflict was resolved by concentrating on the concrete issues involved in the immediate difficulty at hand. As the voices became more strident, and the men who exercised power became more intemperate, efforts at compromise became progressively more difficult, and finally impossible. "What stands out in this story," says Prof. Craven, "is the simple fact that issues dealing with right and wrong and issues that have to do with the fundamental structure of society do not lend themselves to the political process." Perhaps it would not be amiss to remark on what he considers the limits of free speech: " . . . few peoples on this earth have ever extended freedom of speech to the point of permitting agitation that would destroy a goodly percentage of their material wealth and completely upset the existing structure of society." No one objects to free speech that doesn't cost them anything, whether materially, or in psychological self-esteem, such as puncturing their carefully built-up image of themselves; but democracy requires us to support that freedom, even when it costs us.
John Stuart Mill is considered by many to have had the greatest infulence on the idea of freedom of speech, but, as Isaiah Berlin points out, Mill would have agreed that toleration of other people's absurd opinions implies a certain disrespect for them. He said in his autobiography that when we deeply care about something we must dislike them that hold the opposite views. He did not think anyone needed to respect the views of others — in fact it has been agreed that Mill taught people should be able to say and write what they like, because it doesn't matter what they think. While he felt it unnecessary to respect the views of others, he asked only to try to understand and tolerate them, for with tolerance, the conditions for either rational criticism or condemnation are destroyed, and so reason and toleration must be maintained at all costs. Berlin sums up his argument thus: "We may argue, attack, reject, condemn with passion and hatred. But we may not suppress or stifle: for that is to destroy the bad and the good, and is tantamount to collective moral and intellectual suicide. Sceptical respect for the opinions of our opponents seems to him preferable to indifference or cynicism. But even these attitudes are less harmful than intolerance, or an imposed orthodoxy which kills rational discussion. This is Mill's faith."
"I hear America typing," writes Mike Godwin, whom I have quoted above, speaking of the internet, which is the new frontier for freedom of speech. He says: "Free speech on the Net has to mean that we can say worthless things, have goofy opinions, and show our ire. Otherwise it means nothing at all." It should be obvious Mill would have concurred.
Thomas E. Dewey, long-time Republican Governor of New York, best known for almost defeating Harry Truman in the presidential election of 1948, delivered a series of lectures at Princeton on the two-party system in 1950. Dewey franky admits his partisan bias, but he has great respect for the two-party system, and his analysis of why it preserves liberty is extremely perceptive. It was invented, he says, by Americans, and says: "Each party is to some extent a reflection of the other." He states as his belief, "Whenever a government has become so powerful that the correctives provided by the party system are no longer at hand, you may be sure that the government's mistakes will destroy the nation." For example, he says of the need for discussion on national foreign policy (which concerns everyone): "Consultation must take place before, not after, decisions in the shaping of policy are made. All relevant information must be made available by the administration to the proper representatives of the minority party. Bi-partisanship cannot be merely a ratification of policies determined by the party in power and it should apply in all decisive areas of foreign policy, not merely in those where it is found convenient or politically expedient by that party." Lord Coke, who fought King James over foreign policy, particularly with regard to Spain, would have completely agreed.
In the words of Dewey: "The central problem of twentieth-century politics remains unsolved. No nation, no system of government has yet succeeded in reconciling the age-old conflict between liberty and authority." This is a broader statement of the regulatory reflex Mike Godwin was talking about. Dewey says, "Free government substitutes a conflict of parties for the more lethal methods used elsewhere." This is the importance of vigorous but peaceful party conflict:
"One of the reasons our system as been so successful in preserving liberty is that basically it provides a substitute for assassination, execution, purges, and violent popular uprisings. We get our political passions and factionalism right out in the open where everybody can see them. Even most of the intrigue, with the frequently unwanted help of the press, gets into the open. The result is that the people may become aroused and take action at the polls. Or they can laugh. But in any event, the steam is let off peaceably and without violence."This is true not only at the national level, but from the ground up, and the community may express its feelings and will more truly through the local Sheriff's election than by election governors and presidents. Dewey ends his lecture series with the remark:
"Freedom is never won. It is only preserved from day to day by everlasting vigilance."
Mere freedom of speech is not enough to create democratic institutions, though perhaps it would always do so eventually were it truly free for everyone. It is the abuse of free speech (or often enough, its potential
abuse, rather than anything actual) that is the source of the temptation to curb or quell it. More often the attempt to limit free speech is an attempt to control other people while maintaining freedom for oneself. The recent issue of the Muslim riots in response to satires of Mohammed is a case in point. It is an attempt to destroy the forum of free speech, it is an expression of ill-will, and it is a religious issue that cannot be properly debated in the public forum: "With those that follow another way it is useless to argue." One writer pointed out that the Danish cartoons were designed to show Islamic intolerance, concluding, "— and they have done so, in abundance. The West's principles are clear enough. Tolerance? Yes. Faith? Absolutely. Freedom of speech? Nonnegotiable."
We have seen the results of the Inquisition, and of Communism in Russia and elsewhere. No one is completely right when it comes to deciding for other men; everyone must have a right to speak for themselves and others like them. If one speaks in good faith he deserves to be heard. Freedom of speech is an absolute necessity for democracy, and for this reason the temptation to control it must be resisted. It is the only means by which oppression can be corrected — oppression by others, or (perhaps unwittingly) oppression by ourselves — and this is why there must be a perpetual vindication of first amendment rights.
James Duvall, M. A.
Big Bone University
Nec ossa solum, sed etiam sanguinem.
Big Bone, Kentucky