Free Speech Absolutist: Oh Really?

We often see people on Daily Kos and elsewhere describing their position as being a free speech absolutist. They assert that they oppose any and all restrictions on the freedom of expression as a matter of civil right. I would like to pose two test questions for the absolutists.

Do you support the right of people to freely publish and view materials displaying child pornography?

Do you support the right of people to freely publish and view instructions for the construction of a nuclear device?

If you answered no to either of those questions, you are not really a free speech absolutist. You recognize the necessity of some restrictions on the freedom of expression. There are perhaps a few radical libertarians that would oppose these two restrictions, but they are few in number. What is an ongoing matter of policy discussion is what are reasonable and useful restrictions that promote a necessary public purpose.

This is the text of the first amendment to the US Constitution.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It definitely has an absolutist tone to it. Congress shall make NO law. Not congress shall make no unreasonable or unjust law. We find similar issues with the interpretation of constitutional language. Statements that might seems fairly clear on their face require interpretation in their application to practical public affairs and in many cases the specifics of that interpretation have varied drastically over the course of the nation's history. The equal protection clause of the 14th amendment offers one of the most dramatic examples. In 1896 the Supreme Court held in Plessy vs Ferguson that the requirements of this provision could be adequately met in racially segregated facilities. In 1954 a later court in Brown vs Board of Education took the opposite position. In the intervening 58 years the language of the constitution had not changed. What had changed was the culture and political consensus of the society. The court found it necessary to reinterpret the constitutional language to accommodate that change. In practice the constitution is not clear and unchanging in its meaning and application.

This Wiki article offers a fairly detailed review of the first amendment and how its interpretation has changed over time and in different situations. Up until the middle of the 20th century what would be described today as a fairly conservative view of social relationships and fundamental public morality occupied a clearly dominate and seldom questioned sway. This is particularly true for the free speech clause.

The Supreme Court declined to rule on the constitutionality of any federal law regarding the Free Speech Clause until the 20th century.  

Justices Holmes and Brandeis began to issue dissenting opinions to the majority conservative positions. The court began to shift toward the left with appointments made by FDR. That trend continued through to the days of the Warren court and it broad liberality. In the 1950s and 60s it was common to think of the first amendment as a legal vehicle for liberals attempting to advance the right to the expression of diverse and dissenting speech. One of the most recurring issues has revolved around the publication of sexually explicit content and images.  

The federal government and the states have long been permitted to limit obscenity or pornography. While the Supreme Court has generally refused to give obscenity any protection under the First Amendment, pornography is subject to little regulation. However, the definitions of obscenity and pornography have changed over time.

It isn't a matter that the government is prohibited from controlling the publication of obscenity. We have just become less restrictive in how we define it than we were 100 years ago. There is nothing in the constitution that prohibits or controls future changes in that definition and understanding.

The Wike article covers case law in several other types of speech issues.

Political speech

Campaign finance

Flag desecration

Falsifying military awards

Commercial speech

School speech

Memoirs of convicted criminals

Defamation

Private action

If you walk through this history you will see that there has never been a point at which there has been unrestrained freedom of expression. There are certainly conservative and liberal traditions in judicial interpretations. The conservative tradition has enjoyed something of  a reassurance as a result of Republican appointments. However, we can always find cases where liberal judges take positions that support restrictions on speech.      

The prevailing judicial standard is that in order for a law or government action to pass constitutional muster it must be able to demonstrate a compelling public purpose. Prohibiting people from saying shit in public because it's not nice is not recognized by the courts as a compelling public purpose though some would disagree. Protecting material that could pose a threat to the nation's security interests is in principle recognized as such. There is a range of opinion as to where to draw the line in practice.

Publishing a job announcement for an accounts payable clerk that states only white people need apply is clearly an act of speech. There are people who still think that this is a speech right that should be protected from government interference. However, it is illegal speech under federal employment law and that of most states. Combating employment discrimination according to specified characteristics has been defined as a compelling interest. It is not protected as a matter of right.

The most recent debate about free speech on Daily Kos can be seen in this diary. It is specifically about the issue of defining a category of hate speech and subjecting it to some form of legal restrictions. The position of the diarist and many of his supporters is not simply that it would be difficult to do in practice and could cause more problems than it solves. The claim seems to be that any effort to discuss the matter poses a potential threat to the constitutional liberties of free expression. It is my view that such absolutist claims are just rhetorical hot air. Speech always has been restricted in various matters. The views of society and its legal institutions about such restrictions change over time, but there is not now and never has been a right to absolute free expression. In practice most of the people trying to claim such a right don't actually believe in it. They are simply throwing it up as a smokescreen to block discussion of specific policies that they don't like.

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