- - Tuesday, April 13, 2021

When it comes to freedom of expression, ours is a world of strange dichotomies. 

Prevailing doctrine in our federal and state courts provides greater protections against governmental restrictions on speech than at any point in our history. Yet at the same time, the values that underlie these legal protections are increasingly being rejected by powerful societal actors.

As U.S. Supreme Court Justice Clarence Thomas noted just last week, a small number of private actors possess historically unprecedented power to cut off widely-used avenues of communication. So despite First Amendment protections being at their apex, the actual ability of citizens to express themselves is in many ways diminished.    

Our tradition of protecting speech from government interference traces to our founding and the adoption of a U.S. Constitution that in its very First Amendment guaranteed that Congress would make no law “abridging the freedom of speech, or the press.” 

But a constitutional command, by itself, wasn’t enough to get us to our modern free speech protections. Just ask James Callender, sentenced to nine months in jail in 1800 for violation of the Sedition Act after writing a book that labeled John Adams “a repulsive pendant, a gross hypocrite and an unprincipled oppressor.”



Or Jacob Abrams whose conviction for violation of the Espionage Act was affirmed by the U.S. Supreme Court in 1919. Abrams’ crime? Authoring a leaflet thrown from a window of a New York building that denounced the U.S. government for assisting efforts to resist the Russian Revolution.

The promise of the First Amendment was not fully realized until the 1960s when the Supreme Court read the amendment to provide broad protections to citizens who criticized their government. The court’s chosen metaphor to explain the right was the “marketplace of ideas,” an idea first popularized by Justice Oliver Wendell Holmes’ dissent in the Abrams case. 

As Holmes explained, if one is certain in their beliefs, then persecution of others for contrary opinions is perfectly logical. But when one realizes “that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas.” 

In this view, the “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” And the answer to speech we don’t like is not to stifle that speech but to allow for more speech so that the best — the truest — ideas will ultimately prevail.

The Supreme Court rarely acts in a vacuum. And in adopting a conception of free speech centered around the marketplace of ideas, the court acted in accord with the prevailing views of other influential institutions, particularly academia and the news media. 

Colleges had long been considered bastions of free speech, but in the 1960s student activists — think the Berkley Free Speech movement — sought and achieved even greater protection for speech on campus. And in the era of the Pentagon Papers and New York Times v. Sullivan, the establishment news media were strong proponents of free speech protections centered on a marketplace of ideas.

Consider The New York Times editorial of June 25, 1978, the day that Nazis had planned to march in predominantly-Jewish Skokie, Illinois: “As for the Nazis let the march, nothing they will do or say is likely to win them the affection of any number of Americans. But the fact that they are permitted to rally confirms the strength of the constitutional government which they would, if they could, destroy.”

Fair to say, the development of our modern conception of free speech rights rested on a three-legged stool: the courts, the media and academia. While it was ultimately the Supreme Court that interpreted the First Amendment to provide our modern robust speech protections, it acted against a backdrop of widespread support in academia and the media.

Fast-forward to today. When universities come to court, it is most typically because they want more authority to restrict speech. The prevailing view in academia is not that we should allow competing ideas to flourish, but that we must do more to protect students from speech that might offend them.   

No one has a bigger stake in robust free speech protections than the media, but increasingly even some of the press seems less than comfortable with the implications of a true marketplace of ideas. Look at what happened this summer when The New York Times published an op-ed written by U.S. Sen. Tom Cotton calling for the mobilization of troops to protect against rioters.

At the same New York Times that celebrated the right of Nazis to march in Skokie, the backlash to the publication of a U.S. senator’s opinion was so strong that the opinion editor felt compelled to resign.

We hear a lot about “cancel culture” today. And it is worth noting that much of the “cancelling” that takes place has nothing to do with the First Amendment because it does not involve governmental restriction on speech. But even though it involves private conduct, the idea that we should shut down speech we don’t like rather than simply encourage more speech and trust that truth will ultimately prevail runs counter to the basic assumption that animates our First Amendment jurisprudence.  

One has to wonder, what happens to a legal doctrine premised on a marketplace of ideas when large swaths of society stop accepting the doctrine’s premise?

Let’s hope nothing. Though the marketplace of ideas may be under attack, it still offers a far-superior means to obtain truth than the imposition of some chosen orthodoxy in thought from on high. The values that underlie the First Amendment apply equally to private conduct — be it a social networking platform, academia or a newspaper editorial page.

We can only hope that our institutions come to learn what our legal system has — that there is no guarantee that any one of us is right, so it is worth putting up with voices we don’t like in order to ensure that we live in a world where there is a free trade of ideas.  

But to the extent that doesn’t happen, and our institutions succumb to the temptation to shut down unpopular voices in favor of the prevailing sentiment, it will be even more important that our courts continue to protect the rights of those who would otherwise be silenced.

• Pat DeWine is a justice on the Ohio Supreme Court

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