capitalism

184 Freedom of Speech
a principle that had a power to expand human freedom
in general.
The inseparability of the campaign for religious toleration
from the emergence of claims on behalf of freedom of
speech is seen clearly in the American experience, where
the 1st Amendment of the Bill of Rights—ratified in
1791—first established freedom of religion as an essential
right and only then established freedom of speech as such.
Arguing in 1776 on behalf of religious liberty in the
Commonwealth of Virginia, James Madison urged that “the
opinions of men, depending only on the evidence contemplated
by their own minds, cannot follow the dictates of
other men.” Madison’s own bill declared that “all men shall
be free to profess, and by argument to maintain, their opinion
in matters of religion.” With religion considered to be
the most important set of truths, freedom there meant freedom
of expression on virtually all matters of conscience
and importance. Such freedom was, in Madison’s view,
among “the natural rights of mankind,” and, thus, beyond
the reach of any government.
Writing in support of the fullest possible freedom of
belief and expression (absent direct harm to others), the
English philosopher John Stuart Mill wrote in 1859, in his
On Liberty, that, in order to establish freedom of expression,
he would take the most difficult case of all, the right
of those who dissented fundamentally in matters of religion,
because if he could win the issue there, he had won it
for all lesser instances. In making his plea for freedom of
belief and expression, Mill essentially established the pole
toward which both public opinion and jurisprudence gradually,
fitfully, but powerfully would move.
Most people believe that they favor free speech, Mill
argued, but, in fact, almost everyone sets limits at what they
believe to be without value, or dangerous, or just obviously
wrong. Why should we favor freedom of expression even to
what we consider beyond the pale? For Mill, there were
four ultimately compelling reasons, confirmed by history,
for supporting “freedom of opinion, and freedom of the
expression of opinion.” First, the opinion might indeed be
true, and “to deny this is to assume our own infallibility.”
Second, the opinion, although largely or almost wholly in
error, most probably would “contain a portion of truth,” and
censorship would deny us the possible “remainder of the
truth” that only could be gained by “the collision of adverse
opinions.” Third, even if prevailing opinion were the whole
truth, if that truth were not “vigorously and earnestly contested,”
it would be believed by most not on “its rational
grounds,” but only “in the manner of a prejudice.” Only
freedom of expression would permit truth to be embraced
by conviction, not by memorization. Fourth, if people were
not obliged, by liberty of opinion, to defend their beliefs,
truth would be “in danger of being lost, or enfeebled, and
deprived of its vital effect on the character and conduct,”
becoming merely a formula repeated by rote, “inefficacious
for good ...and preventing the growth of any real and
heartfelt conviction, from reason or personal conviction.”
The negative consequences of the suppression of freedom
of speech would fall both on the individual and the society
deprived of strong and daring individuals. In Mill’s celebrated
formulation: “If all mankind minus one were of one
opinion, and only one person were of the contrary opinion,
mankind would be no more justified in silencing that one
person, than he, if he had the power, would be justified in
silencing mankind.”
It was not until the 20th century that the U.S. Supreme
Court, in a set of quite dramatic decisions, brought the
interpretation of the 1st Amendment’s speech clause—
“Congress shall make no law ...abridging the freedom of
speech, or of the press”—closer to Mill’s sense of such
liberty. Originating in cases (and often in minority dissents)
involving the rights of protestors opposed to American participation
in World War I, a line of Supreme Court jurisprudence
vastly broadened the meaning of protected free
speech. In Terminiello v. Chicago (1949), writing for the
Court, Justice William Douglas noted that the
function of free speech under our system of government is
to invite dispute. It may indeed best serve its high purpose
when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger.
In Cohen v. Connecticut (1971), the Court held that
emotively powerful and offensive speech was constitutionally
protected because outrage or anger “may often be the
more important element of the overall message sought to be
communicated.” “One man’s vulgarity,” Justice Marshall
Harlan opined, “is another’s lyric.” In United States v.
Eichman (1990), the Court struck down the Flag Protection
Act of 1989, ruling that, although “desecration of the flag is
deeply offensive to many ...the same might be said ...of
virulent ethnic and religious epithet ...and scurrilous caricatures.”
In a free society, citizens were free, in the absence
of direct harm, to be offensive and scurrilous in each
other’s eyes. In R.A.V. v. City of St. Paul (1992), the Court
invalidated a city ordinance that sought to protect individuals
from expression that “arouses anger, alarm or resentment
on others on the basis of race, color, creed, religion or
gender.” Writing for the Court, Justice Antonin Scalia
stated, “St. Paul has no such authority to license one side
of a debate to fight freestyle, while requiring the other to
follow Marquis of Queensbury rules.”
The Court, however, has never taken the “no law” provision
of the 1st Amendment literally. Obscenity, speech
posing “a clear and present danger” of imminent violence,
and disclosures of information (such as troop or naval
movements) deemed threatening to national security all
remain unprotected. Nonetheless, the Court has brought the
law closer and closer to the spirit of John Stuart Mill’s