Censorship – the regulation, suppression, and criminalization of disfavored speech – has mounted a comeback. Government officials, social media content moderators and moguls, journalists, and professors have aligned to thwart dissemination of misinformation, disinformation, malinformation, hate speech, and harmful or offensive remarks. They applaud themselves as brave activists blazing a new path to the achievement of a truly diverse, equitable, and inclusive democracy.
Yet they are throwbacks, as Jonathan Turley shows in “The Indispensable Right: Free Speech in an Age of Rage.” A distinguished George Washington University Law School professor, Turley is also an eminent columnist, television analyst, and litigator. His book provides a bracing “history of the struggle for free speech in America” and an incisive account of “the promise of free speech” in the United States and wherever basic rights and fundamental freedoms are protected. Through his winning combination of historical reconstruction, legal analysis, and philosophical exposition, Turley reveals that the arguments for regulating speech that the contemporary censorship industrial complex touts as original have a long and disreputable lineage.
In the West, which developed exemplary principles of free speech, that lineage of censorship stretches back to democratic Athens, which put Socrates to death for teaching the young to ask hard questions about virtue and justice, human nature, and the cosmos. It encompasses the early modern Star Chamber which in 16th– and 17th-century England prosecuted the crime of seditious libel – speaking ill of public officials, the laws, or the government – and the great 18th century English jurist William Blackstone who insisted on seditious libel’s criminality. And despite America’s founding promise and constitutional imperatives, government silencing of criticism of government extends throughout the nation’s history. Those who today undertake to expand the authorities’ power to determine what is and what is not fit for the public to think, say, and hear give fashionable expression to the authoritarian impulses, aims, and actions that not only have beset the West, but which also have marked most political societies throughout most of history.
American constitutional government sought to break authoritarianism’s grip. The Declaration of Independence stated that government’s primary task was to secure unalienable rights, starting with life, liberty, and the pursuit of happiness. In the original Constitution, the sovereign people protected speech by declining to delegate to Congress the power to regulate it. The First Amendment, ratified two years after the Constitution went into effect, explicitly denied Congress the power to abridge free speech. This reinforced the fundamental freedom – as stated in “Cato’s Letters,” widely read in 18th-century America – to “think what you would and speak what you thought.”
Free speech, Turley emphasizes, has two major justifications. The first is functional: Free speech undergirds the liberal education and robust public discussion that produce the informed citizenry on which a rights-protecting democracy depends. The second justification, grounded in natural rights teachings, affirms that speaking freely is inseparable from our humanity.
While both justifications are crucial to constitutional government in America, Turley stresses that the tendency to rely exclusively on the functional argument alone has proved calamitous. Protecting free speech solely because it is good for democracy invites the curtailment of this utterance or that publication on the grounds that it undermines democracy.
Free speech fortifies the other four First Amendment freedoms. Religious freedom includes the right to profess one’s faith, as well as the right not to profess other faiths or any faith at all. A free press keeps citizens knowledgeable about the news and circulates opinions and ideas. The freedoms of assembly and petition enable citizens to communicate among themselves and express their concerns to the government.
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