Why A Free People Cannot Exist Without Free Speech

The Federalist.com (Apr. 21):

Free speech is perhaps the most important liberty Americans enjoy. People exercise it every day without even thinking about it, and for good reason it is mentioned in the very first amendment to the U.S. Constitution. But free speech is more than just the words in the Bill of Rights. Before there was a law, there was the idea of free speech. The law limits the government to protect the right, but does not define the right.

More than simply a legal issue, free speech is a part of American culture—an important distinction. If free speech meant only the words in the Constitution, if all it guaranteed were that the government could not jail us for our words, it would be a dead letter. Governments across the world guarantee rights in their laws yet violate them daily.

Indeed, free speech was not invented in 1791. The law only codifies what the Founders and their contemporaries already believed: that a free people must be allowed to openly express themselves, and that the cure for bad ideas is good ideas, not censorship.

The First Amendment is essential, but the American people believe in the principle of free speech. That includes more than just being free of government punishment. It includes the idea that no power — be it government, corporation, or mob — should be able to suppress the free exchange of ideas.

We often speak of the “marketplace of ideas,” and just as with markets for goods, the concept came first, and laws to protect it followed. Now, the concept is under threat. Should it fail, and should deplatforming, monopoly pressures, and “heckler’s vetoes” become accepted practices, then no matter what the law says, free speech as a concept will die.

The English Roots of Free Speech

Many of the freedoms enshrined in the Bill of Rights echo those proclaimed a century earlier in England’s 1689 Bill of Rights. Free speech is mentioned there, but only for members of Parliament, whom the Crown sometimes arrested for things they said on the floor of the House of Commons.

This is replicated in the American Constitution’s Speech and Debate clause in Article I. The broader guarantee of free speech found in the First Amendment protects a different right, one possessed by all Americans, which developed independently of the rights of legislators.

It follows that free speech did not develop as rigorously in Europe as it did in America because, while it holds positive benefits for people everywhere, only in a democratic republic is it truly necessary. As Britain grew more democratic after the Glorious Revolution, its political thinkers began to see the value of free speech in helping the people to decide how they would be ruled.

Newspapers, once subject to strict licensing requirements, became free to publish articles in opposition to the government of the day. The theory of free speech, advanced most prominently by John Milton 50 years earlier, began to find widespread acceptance. [read more]