The Value of Speech

There is no piece of writing in the Constitution of the United States of America more lauded, cited, and disputed than the First Amendment. The emotional connection of Americans collectively to its forty-five words is not surpassed by any text, with the omission of perhaps the Bible and national anthem. Entire careers are dedicated to analyzing the establishment clause, the free exercise clause, the freedom of speech, of press, of assembly, and finally, the oft-forgotten sibling, the right to petition the government. Every child is taught that without the First Amendment democracy would cease to be, that each of the five enumerated protections is a keystone in the great American House. The doctrine of the First Amendment is accepted not only by Americans, but by those in hundreds of countries across the globe, though perhaps in these other countries it is not celebrated so loudly nor protected so fiercely. 

The section of the First Amendment protecting the freedom of speech was written by the founders for the purpose of allowing citizens to openly criticize their government without fear of retaliation. It was meant to encourage Americans to question their leaders and their system of governance, and to ask these questions in the public sphere. So it seems only appropriate to turn a critical eye to the amendment itself. Does free speech actually make our country better? What speech is valuable? Where should this principle fail to apply? 

One cannot begin the process of criticism and analysis without first an understanding of the subject under review, so before any argument can be had we must gain a sense of the borders of what is considered protected speech. The website for the US federal courts provides a list of what is and is not protected. The protected rights are those that involve expressing one’s opinion about current events or politics, such as the right “…not to speak (specifically, the right not to salute the flag), of students to wear black armbands to school to protest a war, to use certain offensive words and phrases to convey political messages, to contribute money (under certain circumstances) to political campaigns, to engage in symbolic speech, (e.g., burning the flag in protest)…” etc.  Speech that is not protected is broadly speech that leads to harm to others or speech in schools, such as“…incite[ing] actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”), make[ing] or distribute[ing] obscene materials; [the action of] students to make an obscene speech at a school-sponsored event, of students to advocate illegal drug use at a school-sponsored event….” etc.  Speech is given a much broader and more nebulous definition in the law than it possesses in common speech, as it includes actions that express viewpoint as well as words. The law also clearly recognizes that speech has the ability to cause great harm. 

The value of this speech has been affirmed over centuries by the courts in dozens of cases, and the court wrote in 1964 of “…a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The expression of political viewpoint is regarded by the law as the speech most valuable to democracy and therefore the speech that merits the greatest protection. A note of clarification, the First Amendment begins with the words “Congress shall make no law…” This confines the regulatory power of the Amendment to government itself. Private corporations are not required to respect freedom of speech (with a few exceptions).  

  A convincing argument against free speech is made in the Sydney Law Review by the Karl N Llewellyn Professor of Jurisprudence and Director of the Center for Law, Philosophy & Human Values at the University of Chicago Brian Leiter (I strongly encourage anyone interested in this topic to read the article in its entirety. It can be found on the SSRN website and is titled “The Case Against Free Speech”), He introduces his claim as follows “My claim is that most speech…in fact has little or no net positive epistemic value (that is, value for helping us discover the truth) and not enough non-epistemic value (either for the speaker or listeners) to justify its expression, regardless of the costs to social welfare.” 

Leiter goes on to discuss speech within the courtroom, where the goal is not to express oneself but to discern the truth. He lays out the numerous rules of evidence that are used in  court in order to avoid misleading the jury. There is not, and most agree that there should not be, free expression in the context of a criminal case, for the simple reason that lawyers and witnesses do not have the right to mislead or lie to the jury. The role of the judge in many of these cases is to act as a neutral arbiter of speech, to determine which speech is valuable and which is not in order to achieve the desired result. (A side note, the courtroom is not the only institution in which speech is highly regulated. As is indicated by the amount of school-based restrictions described above, schools and universities prove that speech protected elsewhere is not considered valuable in an educational setting) Leiter writes that “No one thinks [juries] should be exposed to a freewheeling marketplace of ideas, an unregulated and unrestricted presentation of evidence and arguments; instead, the… laypeople are subjected to the paternalistic care of a judge, whose job it is to decide what they can safely hear that might actually facilitate their correct findings of fact, allowing for their cognitive infirmities and other biases. There is no free speech in the courtroom, and (almost) no one thinks there should be.”

The article then goes on to compare this widely-accepted system to that which we employ in the polity, “when these same laypeople are asked to choose a President, someone who will decide American tax policy, whether to go to war, the correct approach to climate change, and who should get healthcare, the basic constitutional posture in the US is that everyone (whether person or corporate entity) should be able to say almost anything…Can we explain why the public sphere should be a free-for-all of distortion and misinformation, as it too often is in the US, while the juridical sphere, where matters of life and death, freedom and incarceration, wealth and penury, are decided, is not?” This idea is incredibly compelling. Why exactly do we protect blatant lies in the public discourse? What societal value is there in the twisted statements of politicians seeking power without regard to reality?

Of course speech is not only valuable in its role in revealing the truth. It also adds to the landscape of ideas and perspectives in the public discourse, but the value of even this speech is not assured. In public discourse, there are many different ways to express ideas, and many different ideas that can be expressed. Honest questions about and criticism of society benefit our society, but other ideas, those whose only purpose is to threaten, alienate, and discriminate, do not. Blatant expressions of hostility towards a person or group of people because of race, gender, class, or ethnicity do not inspire healthy discussion of principles, they simply degrade our communal spaces.  Hate speech does not aid our society, and it adds nothing to the quality of the public forum. Speech of prejudice deserves no protection. The law already recognizes that the harm done by  speech which leads to violence far outweighs any utility it may have, so it only makes sense that the same principle could reasonably apply to the expression of hateful, false and intolerant ideas.

This perhaps applies best to the debate about social media today. No one has the right to have their words protected on Twitter, because Twitter is a private company. But, as social media increasingly becomes a forum for political dissent and debate, it raises concerns about whether laws should be passed to protect speech on these platforms. On the other hand, Zuckerburg and Dorsey have taken it upon themselves to impose loose moderation policies behind a professed commitment to free speech. These very policies have allowed the spread of harmful conspiracy theories such as Qanon and lies about the integrity of democratic elections. The rise of the internet puts even more pressure on lawmakers to begin considering reform to free speech law in the US.

All of this is not to say that the First Amendment should be thrown out in its entirety. Speech that adds to society should be protected, but it is still unclear how the value of speech is to be determined. Not everything that is said by politicians and television hosts should be protected. The increase in fake news and misinformation in recent years has betrayed the harm that lies can do in democratic society, yet the law defends the malicious communication of falsehoods as much as it does honest advocacy for reform. The system that has been taken for granted in democracies across the world is not as idyllic as we are taught to believe. It is the responsibility of every citizen to question what we are told not to, and alter what we find to be ineffective regardless of how long it has been accepted.