A comprehensive guide to the debate over free speech

Here's what you need to know about this political, legal, and cultural debate.

The First Amendment is short, but the battles over free speech and how it should be applied are lengthy, contentious, and often confusing.

At BASEDPolitics, we are committed to teaching people how to think, not what to think, based on our guiding principles of free markets and individual liberty.

Just as some on the Left struggle to apply the Second Amendment to modern technology, so too do many on both sides of the aisle when it comes to applying free speech to our modern issues and platforms.

So how should free speech absolutists think through the nuances of this debate? Consider this your comprehensive crash course on how we think through these matters here.

What Does the Constitution Say About Free Speech?

The US Constitution is a relatively short document that sets out to define the powers of government. Rather than working to make laws on the conduct of the American people, it is instead a list of rules for the government—restricting the issues it can become involved in and the manner in which it can do so.

But many of our Founders, aware of the ways governments have historically usurped power and increased their size, felt it was important to create an additional layer to the Constitution: the Bill of Rights. 

While the Constitution ought to be enough (it says government gets these powers and these powers alone), the Bill of Rights was written to encapsulate the basic civil liberties and rights that our Founders felt were so important they needed an extra layer of caution tape to keep the government’s dirty hands off of them.

And first on that list of essential rights was free speech, which they included in the First Amendment. It reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So there you have it. Congress cannot make laws that abridge Americans’ freedom of speech. And constitutionally, Congress is the only political entity that has the power to make laws, meaning government bureaucrats setting policies that target the First Amendment, the courts upholding laws that violate the First Amendment, or the president using executive orders to violate the First Amendment are all also illegal. The courts have also incorporated the First Amendment so that it applies to state and local governments, not just federally.

This means that at all levels, the government cannot punish you for things you say, nor can it force you to say things you do not want to say. It cannot censor you, silence you, or coerce you in either direction.

But, true to the Founder’s predictions about the nature of government, the Constitution and the Bill of Rights have not been enough to check the numerous politicians and bureaucrats who want to limit free speech to advance their own interests.

How History Has Played Out

It would be impossible to list a full account of the ways our government has tried to attack free speech throughout our history. Throughout all levels of government (state, federal, city, courts, legislatures, executives, and unelected bureaucrats) there have been individuals who sought to limit or downright do away with this civil liberty. Countless American heroes have fought back, often at great personal costs, to preserve it, and many continue to fight now. 

Here are a few of the top examples of these battles.

The Alien and Sedition Act (1798)

Our Founders were nothing if not hypocrites. In 1798, during the administration of John Adams, Congress passed the Alien and Sedition Act. This bill made it illegal to publish “any false, scandalous and malicious writing” against the government (so they went after free speech and a free press). The Federalist Party then used the law to persecute their political opponents in the media.

19th Century Sedition Laws

Throughout the 1800s, state and local governments enacted sedition laws that were used against slavery abolitionists, union organizers, suffragists, religious minorities, and pacifists who spoke out against prevailing social and political norms of the times. 

The Espionage Act (1917)

We still live with this law to this day, and it still functions exactly as intended. Enacted in 1917, this law gave the government a way to go after anti-war protesters during World War I. It was used at the time to arrest a prominent anti-war socialist (Eugene Debs) for criticizing the draft and the conflict. And in modern times, it is still being used to persecute whistleblowers like Julian Assange and Edward Snowden who spoke out against the US government’s violation of basic civil liberties and the Constitution.

Schenck v. U.S. (1919)

In 1919, the US Supreme Court finally started intervening in these matters and acting as the check and balance on unconstitutional laws and executive actions it is supposed to be. Except, it got it really wrong in this case.

According to the ACLU, “In Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant’s conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented ‘a clear and present danger’ of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the ‘clear and present danger test.’”

As The Atlantic notes, “Two similar Supreme Court cases decided later the same year–Debs v. U.S. and Frohwerk v. U.S.–also sent peaceful anti-war activists to jail under the Espionage Act for the mildest of government criticism. Together, the trio of rulings did more damage to First Amendment [than] any other case in the 20th century.”

The anti-war sentiments these victims of the state were espousing hardly posed a “clear and present danger,” revealing just how subjective and flimsy such a litmus test on free speech was in the first place.

In 1969, Schenck was finally overturned, but we still live with some of the bad ideas that came from this case to this day, notably, the vastly misunderstood “fire in a crowded theater” line.

Justice Holmes expressed this sentiment in the case when he said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Notably, this was not part of the case ruling at all—it was just his opinion he expressed in discussing the matter. And it’s never been legally true, you can yell fire in a crowded theater.

Holmes seemed to later see the error in his ways, writing in another case (Abrams) shortly thereafter, “The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

McCarthyism (1950s)

Many civil liberties were swept away in the red scare of the 1950s, chief among them, free speech. To be clear, communism is a disgusting, deadly, murderous ideology that has killed more people than any other system known to man. But you don’t defeat deadly ideologies by silencing those who espouse them. People have a right to say and believe vastly stupid things. But our government forgot that in the 1950s.

Again, from the ACLU, “The Supreme Court fell prey to the witchhunt mentality of that period, seriously weakening the ‘clear and present danger’ test by holding that speakers could be punished if they advocated overthrowing the government — even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution. Loyalty oath requirements for government employees were upheld; thousands of Americans lost their jobs on the basis of flimsy evidence supplied by secret witnesses.”

Brandenburg v. Ohio (1969)

In this case, SCOTUS overturned Schenck and ruled that inflammatory speech, even violent inflammatory speech, is constitutionally protected unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Skokie (1978)

In 1978, the ACLU took a controversial stand, supporting the rights of Nazis to march through the Chicago suburb of Skokie, a heavily Jewish neighborhood. While the ACLU obviously condemned the people it defended, it acknowledged that free speech to say only what is popular, virtuous, and true is not free speech at all. 

When free speech is attacked, it always begins with the rights of gross people being targeted first (because who would want to defend them). Therefore, we must stringently oppose any and all infringements on a principled basis, even when we hate the speech we must defend.

Texas v. Johnson (1989)

In this case, the court ruled that burning the American flag is a form of free speech and therefore allowed. It continues to be a lightning rod decision to this day, but it shouldn’t be. If one is not free to criticize their government and its symbols, free speech is null and void.

But this gets us into the topic of what constitutes speech. And fortunately, we have an extensive amount of court precedents that correctly hold speech is more than mere words. It also includes writings, images, money, newspapers, rallies, and protests. We call these things “symbolic speech” as they are non-verbal mechanisms by which people express their ideas and feelings.

There are some limitations to this that the government can lawfully impose, such as limiting the time and place of protests (but not unreasonably), or intervening when protests turn to actions (like blocking traffic).

The Modern-Day Attack on Free Speech

Free speech is again at the forefront of our political and societal discussions, and it has few friends across the political aisle these days.

From attacks on Section 230, to federal “Disinformation Boards,” to the government pressuring Twitter to censor certain individuals and narratives, to rampant free speech violations on public university campuses, to content moderation laws being passed in Texas, Florida, and California, we are under siege. These are all instances of the government actively working to suppress or compel speech by private actors, and it is all a serious attack on the First Amendment.

But alongside that, we’re also in the middle of a culture war over the societal principle of free speech. (Not its strictly legal application via the First Amendment.) From cancel culture to the content moderation decisions of social media companies, to whether or not people can block/mute people on their profiles and still claim to support free speech, the lines seem to be murky for a lot of people.

So let’s straighten a few things out. The government compelling or censoring speech is always bad. There’s no gray area here whatsoever and those currently working to carry these things out should be held accountable.

But when we move into the cultural issues, how should we apply our values if we claim to support free speech? Here’s how we at BASEDPolitics think through that.

First, private property is always a legal (but not moral) trump card. You can support the legal free speech rights of someone, while also not being willing to host them on your property (physically or figuratively). If we’re on our Facebook pages and someone creeps us out or is rude to us, that’s an immediate block. We don’t have to sacrifice our happiness or safety to honor some blowhard’s unhinged rants. No one’s speech is violated in that situation, in fact, we’re both exercising our free speech in that exchange.

Now, if we start calling his employer and trying to get him fired because we don’t like what he had to say, then you could argue that our behavior is immoral and we do not actually respect his free speech rights. A simple principle applies here: As long as someone is not actively seeking to harm you or your property, live and let live—even if you need to put up walls to do so.

Secondly, you can condemn someone else’s speech even while supporting their legal right to say it. This would apply when we discuss matters like Kanye West’s antisemitism, for example. As Holmes said, you defeat bad speech with more speech in the marketplace of ideas. That includes boycotts, disassociation, and condemnation—all of this is also free speech. 

The line really comes down to whether or not you are seeking to harm someone for their speech. Actions like seeking to get someone fired because you disagree with them, threatening or harassing them, or trying to get them canceled for the rest of their lives are not in the spirit of free speech. Blocking them, personally boycotting them or their products, and debating their ideas are all in the spirit of free speech. 

What’s the difference between the two you may ask? That’s fair, it’s a bit of a tightrope. Refusing to associate with people or businesses that violate the rights of others, and certainly refusing to give them your money, are all well and good responses to nefarious ideas in a free market. Seeking to harm people for their ideas or beliefs is what we consider a bridge too far—not always legally, but in the spirit of open discourse. 

And really, if we want to change people’s hearts and minds, which should be the end goal in the face of bad ideas, we need to get a lot better at persuasion, which requires engagement.

We hope this helps clarify some of the basic tenants of free speech for our readers. And if you ever have questions about how we would apply our principles to specific issues, please let us know.

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