The Indispensable Right: Free Speech in an Age of Rage
An opinion essay in the July 2 edition of The New York Times, “The First Amendment is Out of Control,” is emblematic of what law professor/media legal commentator Jonathan Turley describes in his excellent new book as an anti-free speech movement fueled by an alliance of academic, corporate, and media interests with governments intent on controlling the boundaries of both public and private communication. While acknowledging the situation as global in scope, Turley concentrates his analysis on the U.S., where he makes a strong case that “all three branches [of government have] failed in periods of national unrest to protect free speech.” (p.328).
The problem is that, as the author’s concise but incisive review of American legal history illustrates, those periods of national unrest have happened repeatedly in times of both war and peace. In trying and ideologically divisive times, such as America is now seemingly perpetually engulfed, private protest or “rage rhetoric” invariably triggers rage overreaction by the federal and state governments limiting and/or punishing forms and instances of expression that ought to be protected by the First Amendment’s guaranty that “Congress shall make no law…abridging the freedom of speech, or of the press….” Turley’s chief complaint is that, in this country’s constantly recurring periods of public panic, our legislatures, executives, and courts regularly stray from the Constitution’s explicit “no law” provision and carve out exceptions so broad and numerous as to threaten swallowing the rule. The purported justification for legal exceptions to the individual or organizational exercise of free expression is what Turley describes as the widespread functionalist approach to the First Amendment, i.e., the only speech properly entitled to largescale protection is that which positively contributes directly to political dialogue. Much speech in the American experience does not fall within that category (e.g., shouting “fire” in a crowded theatre) and, hence, is fair game for regulation or prohibition. Even expression that does relate to political discourse often has been restricted under the rationale that the particular expression’s value is outweighed under the circumstances by its negative public impact; the degree (if any) of constitutional protection is determined according to a sliding or hierarchical scale focused on the policymaker’s immediate perception of public well-being needs.
Turley objects to the historical, and prevalent present, functionalist approach to free speech, which he argues misses the main point by considering free speech solely as one means to one end and, therefore, constantly subject to insufficient respect and at the losing end of the balancing act. He urges, instead, a recognition of free expression as an indispensable, inalienable aspect of natural rights inherent in every human being. The result of this substitute approach would yield, if not a First Amendment absolutist result, certainly a more robustly deferential legal attitude toward free speech.
With free speech under significant attack today in the U.S. from all points of the political spectrum, the book presents a timely, important, and cogently articulated perspective worthy of attorney readers’ attention.
