Book Review: Freedom and its Excesses

Free Speech: A Very Short Introduction by Nigel Warburton. Oxford University Press, 2009, pp. 115. Paper: $11.95.

What do you get with freedom?  Excesses! Exploitation!  And what does one say to that? A small price to pay. . . Without free communication . . . we don’t have a free society.

— Hugh Hefner

Shortly before he became the darling of liberals, Justice Oliver Wendell Holmes first defended and then cabined the principle of free expression: “The First Amendment,” he wrote, “prohibit[s] legislation against free speech.” But then, as he continued his thought, he stressed the obvious: it was not “intended to give immunity for every possible use of language.”  It’s an old saw, one Holmes invoked in his cramped opinion in Frohwerk v. United States (1919). “A little breath” of the wrong kind of expression, he added, “would be enough to kindle a flame.” Result:  First Amendment claim denied.

To defend freedom, one must be a risk-taker.  To recast it in metaphoric vernacular, one must be willing to let a few fires burn.  In the end, those who would protect free speech must be prepared to defend its excesses.  For example, under our federal and state constitutions, some kinds of hurtful, disruptive, and hateful speech are protected.  So, too, is  blasphemous speech as well as many kinds of generally offensive speech, “worthless” and “mindless” speech, and even certain kinds of sexual expression, even when lewd and exploitative.

Like it or not, that is the creed of modern America’s law of free speech.  It is a creed of libertarian-like toleration, one grounded in an idea that not even Voltaire ever expressly defended, if only because he never said “I despise what you say, but will defend to the death your right to say it.”  (Apparently, Evelyn Beatrice Hall coined the phrase in a 1906 work on Voltaire.)

But Nigel Warburton, a philosopher at the Open University based in the U.K., appears willing to openly champion what old Voltaire never did. “Freedom of speech is worth defending vigorously,” he writes in Free Speech: A Very Short Introduction, “even when you hate what is being spoken.”  So just how far is he prepared to go?  Metaphorically put, how many fires will he let burn in the name of this beloved principle?

Before answering that question, it fair to note that Professor Warburton’s work is part of a “very short introduction” series published by Oxford University Press. Hence, his book is compact (101 pages with photos), though it covers a wide swath of historical, theoretical, and doctrinal law germane to the First Amendment and Article 19 of the Universal Declaration of Human Rights.  Thus understood, Warburton does an admirable job in covering, in a rapid-fire fashion, everything from the thought of John Stuart Mill, Justice Holmes, and others to some of the contemporary controversies here and abroad related to hate speech, blasphemy, pornography, defamation, intellectual property, and expression on the Internet.

Assuredly, this need to compress – so welcome in our quick-read culture –explains the absence of some important topics – e.g., commercial speech and campaign financing.  And it may explain – though Warburton’s credentials as a philosopher rather than a lawyer also figure in here – the lack of any discussion of methodological tools key to an appreciation of modern First Amendment jurisprudence – e.g., content neutrality and the overbreadth and vagueness doctrines.  Nonetheless, he has done much with the little.  Just consider the fact that the First Amendment Law nutshell by Professors Jerome Barron and Thomas Dienes, which is superb, is five times longer.  And Warburton has written this brief overture to his topic with lucidity and with as much credibility as its brevity allows.

My lawyerly qualms aside, I think many college students would be well served by reading Free Speech: A Very Short Introduction. Then again, there is something conceptually antiquated about it, of which I will soon say more.  For now, let’s return to how much freedom this free speech philosopher is willing to compromise away in furtherance of his values.

The limits of values

“My aim,” Professor Warburton tells us early on, “is to provide a critical overview of the main arguments about free speech, its values and its limits.” That endeavor sets him in pursuit of certain “moral justification[s].”  Accordingly, pragmatic, economic, and other non-moral considerations are of either no moment or no great moment when measured against “moral” imperatives.

Of course, “moral” values invite limits; they are the driving force behind many forms of censorship, ancient and modern. Concerning the former, Robin Waterfield makes a plausible argument in Why Socrates Died (W.W. Norton, 2009) that Athens may have been more justified in prosecuting Socrates than commonly thought.  In other words, Athens claimed to be acting in furtherance of morality when it silenced Socrates.  One need not condemn Warburton’s starting point to recognize that it loads the dice at the outset of the jurisprudential game.  For examples of such theories, consider Walter F. Berns, Freedom, Virtue and the First Amendment (Regnery, 1965) and Francis Canavan, Freedom of Expression: Purpose as Limit (Carolina Academic Press, 1984).

To start as Warburton does, though understandable, is problematic.  Why? Because the values one selects – e.g., moral imperatives, self-realization, pursuit of truth, democratic governance, defending the young, etc. – inevitably prove inadequate to safeguard the freedoms we as Americans have come to cherish. This is especially so when a particular value is signaled out as dominant and/or exclusive. That is why the value-laden ideas of free speech theorists such as Alexander Meiklejohn, Robert Bork, C. Edwin Baker, and Cass Sunstein, among many others, war with modern liberty.  Thankfully, judicially created doctrines like overbreadth often save us from the harsh consequences of such thinking, if only because in their mechanical operations they are not typically seen as value-dependent.

When value-driven philosophers, reformers, or jurists venture to set limits on free speech, as Anthony Comstock did in Traps for the Young (1883) or as Justice Frank Murphy did in Chaplinsky v. New Hampshire (1942), boundaries are predictably expanded and then breached and so forth.  Professor David O’Brien makes this apparent in a forthcoming book titled “Congress Shall Make No Law” Except for Unprotected Expression: Categories and Contexts (Rowman and Littlefield, 2010).

So how does all of this relate to Professor Warburton’s enterprise?  Well, tracking Meiklejohn and Ronald Dworkin, Warburton declares: “no democratic government can claim legitimacy unless it allows its citizens freely to debate whatever they wish to debate.”  That is the value that drives his free speech engine.  “At the very least,” he adds, “voters in a democratic society need access to a wide range of views if they are to make informed choices.” This is a variation of sorts on the gospel of the Enlightenment as applied to democratic government.  But it is a gospel that Meiklejohn ultimately deviated from, but not before Zechariah Chafee called him on in a trenchant 1949 book review (62 Harv. L. Rev. 891).

What, then, could justify any restrictions on speech?   While I reserve the right to change my mind, and while I concede that any judgment must involve some  value call, I think a more pragmatic approach – based on demonstrable human or economic harms, or on a clear and real likelihood to cause such harms – is preferable to theories rooted in “moral” value judgments. In this regard, I think Judge Richard Posner’s proposed harm analysis, which buttresses some Holmesian thinking, is worth serious consideration when used in tandem with certain methodological tools.  See Richard Posner, “The Speech Market and the Legacy of Schenck” in Lee C. Bollinger and Geoffrey R. Stone, eds., Eternally Vigilant: Free Speech in the Modern Era (University of Chicago Press, 2002).

If, however, one stands on the self-governance/informed decision-making stone, then much in our modern free speech freedom would be off limits, which brings me to why I view such theories as antiquated. Professor Warburton may sense this as evidenced by his “At the very least” statement.  Unfortunately, he does not really elaborate on what that qualifier suggests.

Communication in Capitalist Cultures

Free expression in modern America, and in certain other capitalist democracies, is fueled mainly by three things: a robust commerce, advance technologies, and an unquenchable appetite for entertainment.  If one looks at the culture of free speech in such societies, it becomes apparent that the free speech liberties we enjoy extend well beyond the black letter of the law.  In countless instances, the culture both sanctions and encourages what the law does not as evidenced by, among other things, the vast domain of obscenity readily accessible on the Internet. Incredibly, today’s free speech theorists, for all their post-modern sophistication, seem oblivious to the obvious.  See Pierre Schlag, “This Could Be Your Culture – Junk Speech in the Age of Decadence,” 109 Harv. L. Rev. 1801 (1996).

Our highly capitalistic, technologically advanced, and amusement-centered culture, as the socialist-minded Meiklejohn well knew, threatens to undermine the very values he championed.  Not surprisingly, the idea of commercial expression – let alone commercially offered and/or technologically enabled sexual expression – was anathema to him.

When the modern sociology of free speech in America is written, it will reveal how far our culture has drifted from the noble but unrealistic ideals championed by the likes of Meiklejohn, Dworkin and now Warburton.  And in our culture, that unrealism invites Orwellian tyranny. See Ronald Collins and David Skover, The Death of Discourse (2nd ed., 2005).

Conclusion

Given where we are, and philosophers and naysayers notwithstanding, perhaps we can afford to take a few more chances.  Why?  For one reason, so that we may live in a world where, to the greatest extent reasonably possible, free speech liberty is our collective default position. Yes, it is a risky. But freedom always is.  In that spirit, then, I echo Willa Cather:  “Coraggio Americano!

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Ronald Collins is the Harold S. Shefelman Scholar at the University of Washington School of Law and the author of The Fundamental Holmes: A Free Speech Reader and Chronicle (Cambridge University Press, 2010) and co-author of We Must Not be Afraid to be Free:  Stories of Free Speech in America (Oxford University Press, 2010) and The Trials of Lenny Bruce (2002).

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