Opinion: Now is No Time to Limit Free Speech

Greg Wilson/Anderson Observer

“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear." ― Harry S. Truman in Special Message to the Congress on the Internal Security of the United States, August 8, 1950

Most of us have witnessed it. A man with a bullhorn blaring on a busy street some dogmatic religious message aimed at provoking as much as informing, or a group of local citizens lining the road or filling a park with signs and banners expressing a political message aimed at rallying the troupes or reminding the opposition that there are other voices in the public square.

Such expression, even when irritating to some, is part of what makes America a special nation. When confronted with public displays of which we might disagree, we can walk away, with the knowledge that we are also free to share our passions and convictions in the public marketplace.

What once was the vehicle of letters to the editor, which required effort and allowed time to review and edit before dropping in a mailbox, is replaced by today’s instant gratification of social media (where one can often move in anonymity) that leads to talk of cancel culture and the weaponization of words have heated up in recent days to a tumult of “us and them” rhetoric.

Questions have turned from the constitutional to the convivial. Are we more censorious than our forbearers, or simply more voluble? The answer, as with most American dilemmas, depends on whom one asks and how many retweets their reply receives.

We live in an era of infinite channels and algorithmic echoes, where the freedom to say what you want had been replaced by the freedom to be ignored. Sadly, the latter part of that equation is losing ground, as retribution replaces respect – however grudgingly – for other opinions and ideologies.

The Founding Fathers regarded free speech as a crucial pillar of American liberty, intertwining it with the survival of democratic self-government and the pursuit of truth. James Madison, author of the First Amendment, described freedom of speech and the press as “great bulwarks of liberty” that must remain inviolable. When drafting the Bill of Rights, there was widespread agreement that speech should be protected not only to prevent tyranny but to ensure public debate and civic engagement.

Thomas Jefferson argued that “government can make no law that constrains our freedom of speech, conscience, or opinion,” seeing these freedoms as necessary for holding power accountable and for the discovery of political truth.

In his view, as well as Madison’s, only open discussion could safeguard liberty and prevent government overreach. Alexander Hamilton also considered constitutional guarantees vital, though he initially doubted the need for a separate bill of rights until it became clear that explicit protections were necessary to reassure citizens.

Their devotion to free speech was further highlighted by fierce opposition from Jefferson and Madison to the Alien and Sedition Acts of 1798, which penalized criticism of the government—laws these Founders condemned as an unconstitutional assault on basic rights.

Political speech is the most highly protected form of speech under the First Amendment to the U.S. Constitution: “Congress shall make no law … abridging the freedom of speech, or of the press …”.

The Supreme Court has consistently held that political speech—defined broadly as speech concerning government, public affairs, policy, elections, or officials—is at the core of what the First Amendment is meant to protect.

This protection extends to a wide range of expression, including criticism of public officials, support or opposition to candidates, advocacy for policy changes, the right to protest, symbolic acts like burning the American flag, the right to campaign contributions (with some restrictions), and anonymous or controversial pamphleteering. The Court has stated that robust, uninhibited debate about public issues is essential to democracy, and that political speech remains protected even when it is “vehement, caustic, and sometimes unpleasantly sharp”.

The government cannot censor, punish, or restrict speech simply because it is unpopular or critical of authority, except in carefully defined situations (like incitement to imminent lawless action). In summary, the Constitution places the broadest shield around political speech, affirming its essential role in a free society.

There have been nine seminal cases regarding free speech in the last century:

Schenck v. United States (1919): Established the “clear and present danger” test, holding that speech can be restricted if it poses a significant, immediate threat—famously illustrating that the First Amendment does not protect falsely shouting fire in a crowded theater.

Gitlow v. New York (1925): Incorporated the First Amendment’s free speech protections to apply to the states via the Fourteenth Amendment.

West Virginia State Board of Education v. Barnette (1943): Ruled that compelling public-school students to salute the flag and recite the Pledge of Allegiance violates the First Amendment.

Tinker v. Des Moines Independent Community School District (1969): Affirmed the right of students to wear black armbands in protest of the Vietnam War, declaring that students do not “shed their constitutional rights to freedom of speech at the schoolhouse gate”.

Brandenburg v. Ohio (1969): Refined the incitement standard, holding that speech can only be prohibited if it is “directed to inciting or producing imminent lawless action” and is likely to do so.

Cohen v. California (1971): Protected the right to wear provocative language (“F*** the Draft”) on clothing as free speech, emphasizing the principle of content neutrality.

Texas v. Johnson (1989): Upheld the right to burn the American flag as a form of protected symbolic speech, reinforcing the idea that free speech extends to provocative and unpopular expression.

Snyder v. Phelps (2011): Protected the Westboro Baptist Church’s right to protest military funerals with offensive signs, affirming broad protection for speech in public forums.

Matal v. Tam (2017): Ruled that the government cannot refuse to register trademarks that might be seen as disparaging, affirming speech protection even for offensive expressions.

So, we are left with more than a few questions in this current age wher some are seeking to suppress free speech of some groups or organized efforts to “cancel” those who express unpopular or even potentially inappropriate speech.

Some are calling for laws curtailing free speech, something that flies in the face of the Constitution and our tradition. This is not an American approach.

Perhaps embracing an approach that recognizes that “out of many we are one” would serve us best. This would require a couple of disciplined actions by each of us.

First, stop demonizing those with whom we disagree, especially when it comes to politics and religion. It’s too easy to poke holes in the opinions, informed or not, of fellow citizens, instead of stating our own thoughts and allowing them to stand.

"I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend" — Thomas Jefferson.

The second is to avoid the never-ending trail of commenting on every issue, news story or social media post we find disagreeable. It’s an exhausting dead end.

As has been said so many times, the number of times a social media argument has led to a change of opinion is infinitesimally small.  People who spend a fair amount of time posting on such platforms are looking for affirmation of their like-minded friends and neighbors, not a debate. Online venues are easy places to state one’s case, much like a letter to the editor, and allow it to stand on its own merits. The number of social media trolls and bots now is close to the number of actual humans behind the avatars, and all would do well to remember this.

Those with a grasp of history are wise to avoid temptations to squelch voices of opposition, not matter how extreme they may seem on the surface (or that they may actually be), because the American political pendulum has always been in a motion toward self-correction. New laws to limit one form of speech today can and will be used to limit other forms of speech in the future.

In the meantime, emotion and passion should not overrule America’s great tradition of providing a place for all to speak their mind. As George Washington wrote: “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”