First Amendment – A Liberal’s View on Free Speech

Justice William O. Douglas understood the true meaning of free speech.

Source: Wikipedia

Over the weekend I listened to Ayn Rand’s lecture Censorship: Local and Express (you can find this talk embedded below) and later read the text version of it which is included in her book Philosophy: Who Needs It. What first caught my attention was a quote that helped me get a handle on a post I am working on about Senator Bernie Sanders. Today, in light of the attack on the Draw Mohammad event in Garland, Texas on Sunday, I selected one dealing with the First Amendment and free speech.

The quote is from Justice William O. Douglas, who was appointed by President Franklin Roosevelt and who Ayn Rand in her essay described as the “most liberal or the most leftward-leaning member of the Court,” and is part of his dissent in Miller v. California, one of several obscenity cases decided in 1973. In this particular case, the Court came up with a three-tiered test for what should be considered “obscene” and thus not covered by First Amendment protection.

The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

(Ayn Rand has a lot to say about this supposed “standard” in her essay.)

In his dissent, Justice Douglas eloquently expressed his view of the First Amendment.

The idea that the First Amendment permits punishment for ideas that are ‘offensive’ to the particular judge or jury sitting in judgement is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to ‘offensive’ as well as to ‘staid’ people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard ‘offensive’ gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court’s opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV or over the radio. By reason of the First Amendment–and solely because of it–speakers and publishers have not been threatened or subdued because their thoughts and ideas may be ‘offensive’ to some.

Sadly this view is becoming less and less common today. Today many public figures say they are in favor of free speech, but we should take care not to provoke or offend people. After the attack on the Charlie Hebdo offices Pope Francis said, “You cannot provoke. You cannot insult the faith of others. You cannot make fun of the faith of others.” Or take a notice that, according to Forbes, appeared on the website of the U.S. embassy in Cairo just before the attacks on Benghazi in 2012 and in part read, “We firmly reject the actions by those who abuse the universal right of free speech to hurt the religious beliefs of others.” Apparently if you hurt someone’s beliefs, i.e. feelings, you are abusing the right to free speech.

Today speakers and publishers are being threatened because their thoughts and ideas are offensive to some. The attacks at Charlie Hebdo and Garland, TX as well as events such as the murder of Dutch filmmaker Theo van Gogh, who had been accused by Muslims of “ridiculing their religion” are just a few examples. But it is not just extremists who are threatening speech, governments are doing so as well. Take the cases of a Swedish artist who was jailed for six months because some found his work offensive and racist, the filmmaker who some believe was imprisoned because of the trailer for “The Innocence of Muslims” rather than the parole violation that was the official charge, or the proliferation of “hate speech” laws in Europe that the Legal Project states have “increasingly been invoked to criminalize speech that is merely deemed insulting to one’s race, ethnicity, religion, or nationality.”

There are a number of issues that I disagree with Justice Douglas on, he was an environmentalist and felt that trees could have legal standing before the court for example, but on the First Amendment he was spot on. If he were alive today, he would likely agree with Steve Simpson on the idea that you do not need the right to free speech if everyone agrees. You only need it when people disagree because with that disagreement often comes offense. If the one group is allowed to silence another because they are offended, there is no longer freedom of any sort. As Bosch Fawstin, the winner of the Draw Mohammad competition in Garland, during an interview on Fox News,”Once free speech goes, it’s over.”

There are sure to be ideas or means of expressing those ideas that you can see as wrong, in poor taste or outright disgusting, but once someone decides to kill because of those ideas those who support free speech should defend the absolute right to express those views. Defend those ideas not in a “you have a right to free speech, but…” sort of way but rather in a no-holds-barred “you have a right to free speech even if others find it offensive and no one should be permitted to use force against you because of it” way. Period. End of story. As Ayn Rand wrote in defending the rights of pornographers, whose work she found to be “unspeakably disgusting”:

It is not very inspiring to fight for the freedom of the purveyors of pornography or their customers. But in the transition to statism, every infringement of human rights has begun with the suppression of a given right’s least attractive practitioners. In this case, the disgusting nature of the offenders makes it a good test of one’s loyalty to a principle.

One thought on “First Amendment – A Liberal’s View on Free Speech

  1. Larry Black (@LarryBlack10)

    The people criticizing Pamela Geller for holding this event don’t seem to realize that they are advocating for the very “slippery slope” of Statism they so often proclaim to be fighting against. I find the fact that she is, in many cases, being criticized by the very same people who were so strong in their defense of Charlie Hebdo curious. Once any concession is made to these terrorists, all is lost. There will always be another “offensive” remark, practice or idea that they will proclaim gives them the right to “wage Jihad” and murder in the name of their God.

    These Islamist extremists are evil. There can be no negotiation or appeasement with evil at any time, in any way, or evil wins. In this sense, the contest was more than just a proclamation of support for the 1st Amendment, it was a full, defiant rebuke to those who would do murder to silence others’ voices. It was an act of sublime courage and virtue.

    (I’ve Tweeted Bosch asking if he were interested in offering numbered, signed prints of his cartoon. I’d be more than willing to buy one. If he did a limited run of 100, I’d bet he could raise another $10K)

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