Bill of Rights at 225: Vexing free speech issues

Third in a 12-part series on the 10 amendments of the Bill of Rights, running through Dec. 22. Today: Freedom of speech.


'Congress shall make no law ... abridging the freedom of speech, or of the press." So says the First Amendment. But what does this mean? Does it mean that government may never restrict anyone's speech? Is the First Amendment an absolute?

Justice Oliver Wendell Holmes settled that question almost a century ago with his famous hypothetical of the "false cry of fire in a crowded theater." Obviously, Holmes reasoned, such speech can be restricted. But that then left the question: What is "the freedom of speech" that may not be "abridged"?

Over the past century, the Supreme Court has wrestled with this question, positing a broad range of principles, doctrines, and precedents to guide our understanding. At the core of the court's interpretation of the First Amendment is the principle that government may not restrict the expression of specific points of view, no matter how seemingly wrongheaded, offensive, or disloyal they might seem, unless the speech at issue creates a clear and present danger of grave harm.

It took the court a long time to get to that position. It made many mistakes along the way, but it eventually learned and ultimately embraced the central lesson that government officials cannot be trusted to decide what views the citizens of a democracy should be permitted to espouse or to hear.

In the words of Justice Louis Brandeis, our system of government is based on the understanding that "courage is the secret of liberty," that the freedom of speech is "indispensable to the discovery and spread of political truth," that "the fitting remedy for evil counsels is good ones," and that except in cases of genuine emergency the only proper response even to speech that we loathe and believe to be fraught with death "is more speech, not enforced silence."

Against this background, let me identify what I regard as three of the most vexing free speech issues facing our nation today.

First, there is the widespread tendency of students on college campuses these days to demand the suppression of speech that they find offensive, hateful, and wrongheaded. Both as a First Amendment matter at public institutions and as a matter of academic freedom at private institutions, academic leaders must reject these demands and reinforce the imperative of Brandeis' observation that the only proper response even to speech that we loathe "is more speech, not enforced silence."

Although racist, sexist, homophobic, and other offensive messages are certainly repellent, the only way colleges and universities can prepare their students to be effective citizens of the real world is not by shielding them from such ugliness, but by empowering them to respond to such speech with courage, dignity, and reason. If our institutions of higher learning fail to meet this responsibility, they will over the long run undermine the very foundations of higher education and of democratic decision making.

Second, as we witnessed during the 2016 presidential campaign, an avalanche of factually false speech now infects social media. Much of this speech is intentionally false and is intended to manipulate the beliefs and the votes of our citizens. Of course, there have always been lies in our political discourse, but the magnitude of such material now made possible through social media threatens seriously to distort our political process.

As illustrated by Holmes' false cry of fire example, intentionally false statements have never been regarded as valuable speech. Thus, the First Amendment has always been understood to allow legal punishment for defamation, perjury, and fraud. At the same time, though, the Supreme Court has been understandably wary of allowing the government to criminally prosecute factually false political statements that do not directly and concretely harm specific individuals. The assumption has always been that in the absence of such specific and concrete harm, the government shouldn't be trusted to decide which false statements to punish and which to overlook.

Because the risk of political manipulation is so great, traditionally we have relied on the marketplace of ideas to deal with this problem. But with the advent of social media, and the extraordinary proliferation of such lies, the danger to constructive public discourse is now greater than ever. This is a serious challenge for the future. On the one hand, we do not want the proliferation of such lies to damage public debate; on the other hand, we do not want government to pick-and-choose which false statements to punish.

Third, there is the ever-growing problem of money in the political process. Although many states and the national government have enacted regulations designed to limit the destructive and corrupting influence of money in our democracy, the conservative justices on the Supreme Court in Citizens United and subsequent decisions have held that such restrictions violate the First Amendment. These decisions were wrong.

Just as government can constitutionally have equal-time rules in presidential debates, so too should it be permitted to enact regulations designed both to create a fairer political discourse and to limit the undue influence of money on politics. Because such regulations are not targeted at any particular points of view, but regulate speech in any evenhanded manner, much like restrictions on the use of loudspeakers after 10 at night in residential neighborhoods, they do not raise core First Amendment concerns.

The conservative justices who have invalidated such restrictions have distorted the fundamental purpose of the First Amendment and done serious harm to our American political system. This needs to be corrected.

Geoffrey R. Stone is the Edward H. Levi Distinguished Professor of Law at the University of Chicago.

Tomorrow: The Second Amendment