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Freedom of Expression: Foundations

Portrait of former Supreme Court Associate Justice Oliver Wendell Holmes, Jr., at Supreme Court
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The first amendment in the Bill of Rights is often cited in connection with freedom of religion; yet it would better be understood as freedom of thought and expression. It protects not only religious belief but religious and political speech, publications, and gatherings. We call these rights freedom of speech, freedom of the press, freedom of religion, and freedom of assembly, but they are together because they are different facets of the same concept, the freedom to believe what you believe and to express your beliefs without fear of arrest. They share common roots, largely in the work of Baptist theologian and activist Thomas Helwys, who was imprisoned by King James for publishing the assertion that a man was responsible before God for his own faith and therefore the King could not dictate what his subjects must believe. It was a freedom of conscience, and one of the pillars of the modern concept of the right to privacy.

Much of our modern understanding of this freedom comes from Supreme Court Associate Justice Oliver Wendell Holmes (pictured), whose dissenting opinion in Abrams v U.S. 250 U.S. 616 (1919) is the most cited dissent in case law. Holmes is the originator of the suggestion that free speech does not cover shouting "fire" in a crowded theater, and drew the line that speech which clearly threatens or directly incites dangerous or illegal actions is not protected. However, the issue is whether speech itself can be made unlawful, to which Holmes wrote, "Congress certainly cannot forbid all effort to change the mind of the country." He continues (emphasis mine):

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition....[but] the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment....While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country....Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants...making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

The concept of tolerance has become badly misunderstood over the past generation. Many believe they are tolerant when they are merely apathetic: not caring about someone's opinion is not tolerating it. In order to exercise tolerance, you must first have a strongly-held opinion on a subject that matters to you, against which someone else holds a contrary opinion. If for example you think religious beliefs are irrelevant, it is not tolerance to regard all as equally irrelevant; tolerance means that you are firm in your own religious convictions but recognize that others might hold different opinions on the subject and should be accorded the respect for theirs that you in turn expect for yours. Those who hold opposing beliefs about abortion, homosexuality, social welfare programs, foreign military involvement, immigration, or any other controversial subject can exercise tolerance (or not) while arguing for their respective positions, by acknowledging that the opposition includes at least some intelligent persons worthy of respect, by not being dismissive of their position or their arguments, and by engaging in rational discussion of the reasons on each side. (There are such persons on both sides, and if you deny it and are dismissive of their arguments you justify their dismissive response to yours.) If you think the answer does not matter, you are not being tolerant but indifferent.

We are entering an age in which speech is becoming restricted. It has been happening for some time, and needs to be addressed before we have surrendered our right to say what we believe.

More on this next time.

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