Free Speech Has Always Been an Uncomfortable American Principle


The Sedition Act, the fourth, last, and (for our purposes) worst of the infamous Alien and Sedition Acts, was signed by President John Adams on July 14, 1789, the first anniversary of the storming of the Bastille in Paris.

The Sedition Act was the worst of them because it was actually enforced: Twenty-five men, most of them newspaper editors opposed to the Adams administration, were arrested and jailed. One congressman, Matthew Lyon of Vermont, was arrested as well. Adams, that impossible old blatherskite, loved the idea of the acts, but the real power behind them was Alexander Hamilton. He was the one who hustled them through the Federalist-dominated Congress and onto Adams’ desk for signature. (Admittedly, this makes for a lousy Broadway production number.) Another big fan of the acts was the president’s wife, Abigail, who advocated swift and severe action be taken against those engaged in “base and unfounded calumny” against her husband.

My point is this: Ever since the beginning of the republic, and even among some of the people who wrote and promulgated the Constitution, nobody ever believed in completely free speech. This is especially true among the rich and the powerful—and more especially true of the rich, powerful, and thin-skinned. Somebody is always going to be insulted, offended, or otherwise agitated by someone else expressing their thoughts. That agitation could be political, personal, social, or a hundred other variations, and that agitation almost inevitably fashions itself into a desire to eliminate its proximal cause, to wit, the expression or ideas, or both, that touched it off in the first place. And if you are rich and powerful, your agitation is particularly well-armed.

Any sensible reading of the history of the First Amendment (hell, of the entire Bill of Rights) is a history of pushing and pulling, one step up and two steps back. But the one thing that the First Amendment should protect absolutely is the right of all of us to argue about the rights that the Constitution guarantees. And the last couple of weeks have been a bonanza for that most basic First Amendment exercise.

The primary battleground recently has been Twitter; or at least it has been since Elon Musk, the living embodiment of Rod Stewart’s assessment of having “a lot more money than sense,” bought the platform and turned it into the lab rat for every twist and turn of his bizarre version of libertarianism.

He has preached free speech absolutism as an excuse for allowing various authoritarian sewer rats back into the mainstream, and then banished any journalist who dared point out what he was doing and a number of people whose only offense was covering the people whom Twitter banned. In his 1943 opinion in West Virginia Board of Education v. Barnette, which involved the right of some students to sit out the mandatory Pledge of Allegiance in their classrooms, Justice Robert Jackson famously wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

star trek the original series

Klingons debating whether or not to leave Twitter.

CBS Photo Archive//Getty Images

Of course, in our politics, Jackson’s dictum never stood a chance. Neither have several other important issues of free expression. For example, in 1969 Tinker v. Des Moines established the right of students to wear an armband to protest the Vietnam War. But Tinker was whittled down in 2007 thanks to Morse v. Frederick, known more famously as the “Bong Hits For Jesus” case. Here’s Chief Justice John Roberts doing the whittling, all the while maintaining that he is maintaining the integrity of the earlier decision, which is almost funnier than the idea of Bong Hits For Jesus:

Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it.

This sort of ambivalence has fed into the endless silly season about “cancel culture”—although a number of the people who have gotten fat on that nonsense have been conspicuously quiet about what Musk did. Or worse, they’ve covered themselves with the oldest dodge of them all, that the First Amendment applies only to government action and that Twitter is a private entity and therefore Musk can do with it what he wills. I have a long-standing unease with this argument, just as I have a long-standing unease with the argument that the Fourth and Fifth amendments stop at the doorway of any business that requires drug testing without cause. It always has seemed to me that the Bill of Rights is kind of pointless if it bans government abridgment of our rights but allows the government to subcontract the job to any other private institution. That said, the real problem with the current argument is that it isn’t an argument over free speech, it’s an argument over hypocrisy and how far we’ve each fallen in our understanding of the full importance of those rights over which we’re pretending now to fight.

Our civic education has tumbled so far down the well that our defense of our rights has devolved into silly spitball matches over imaginary “brainwashing” and the terrible oppression of pronouns. This has forced even relatively smart people to take positions that make them look like the worst kind of poseurs. Here, for example, is Andrew Sullivan on the great crisis of who gets to say what on Twitter and why Musk did what he did: “It’s simply a function of being around this generation of puritan leftists. They’ll turn any sane person into a reactionary.” Jesus, Mary, and Joseph, who’s this guy when he’s at home? This is petty. It is unworthy of any dispute outside of a sandbox. It is defending a high constitutional position with a squirt gun.

Right now, there is a serious, many-sided discussion about how we best accommodate our fellow citizens who have been marginalized in language as well as in everyday life. It’s an important discussion, and by and large, it’s being conducted the best way such discussions can be: one at a time, in thousands of living rooms and classrooms and offices and subway cars, for all of that.

The people making the most noise about this discussion for professional purposes are attempting to hijack it for their own scurvy purposes. I suspect those people have no interest in the discussion ever coming to an equitable resolution. They want it to go on so they can profitably turn it into a fight. Those people are like the entity in the old Star Trek episode, “Day of the Dove,” in which an alien entity transports a number of Klingons and Enterprise crewmen onto the ship and then sends it off beyond the galaxy while the two sides fight a battle in which nobody stays dead. Eventually, both sides defeat the entity by laughing it off the ship. Sounds to me like a plan, actually. At the very least, we all can stop being such suckers.

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