May government curtail free speech?

David Adler

Does the government have authority to curtail speech that might cause injury to our national security? Such power, asserted throughout the history of our nation, raises thorny questions about the nature, meaning  and scope of two key constitutional provisions when they collide.

On one hand, Congress has authority under Article 1, Section 8, to “provide for the common defense.” Everyone understands that a nation must possess the power and means to protect itself; otherwise, its territorial integrity, sovereignty and very existence may be put to risk.

On the other, the First Amendment provides that Congress shall make no law “abridging freedom of speech.” Suppression of speech in the name of national security strikes many as reasonable in the face of the destruction of the nation after all, but what if the term, “national security,” is cynically or unreasonably cast into discussion as a means of silencing dissenters who oppose a governmental policy or program?  

Counterprotesters clash with police following a "Free Speech" rally staged by conservative activists in Boston in August 2017. The Boston Police Department remains largely white in 2021, despite vows for years by city leaders to work toward making the police force look more like the community it serves.

American history is rife with examples that have posed this dilemma. In 1798, during the war with France, Congress passed the Sedition Act which prohibited criticism that harmed the reputation of government and some of its officials. In 1917, in the context of World War I, Congress passed the Espionage Act, which made criminal any act that obstructed recruiting efforts or caused insubordination in the armed forces. In addition, Congress enacted the Sedition Act of 1918 that made it an offense to say or do anything that opposed the cause of the United States in the war.

Each of these measures reflected a congressional determination to provide for the common defense and ensure our national security. Each of these measures was attacked as an unconstitutional infringement on the rights of Americans. These episodes shined a bright light on the fundamental values underlying freedom of speech and the functions it plays in a democratic society. This deep inquiry has led to a summary of free speech principles that has been embraced ever since.

First, freedom of speech is considered essential to the development of human personality and potential. The right, indeed, the need, to express oneself and communicate with others, to engage in discussion and debate, is integral to the fulfillment of our character and dreams as human beings. Suppression of speech therefore suppresses one’s individual growth and violates one’s dignity and integrity. From this viewpoint, freedom of expression is not merely an end in itself, but also a means of achieving other goals.

Protestors with WE GP make their way down Wayburn St. on Sunday, Feb. 21, 2021. The group held one of two protest marches in the city on Sunday in response to a recent hate speech incident.

Second, freedom of speech is critical to attaining knowledge and judgment. John Stuart Mill, the brilliant English philosopher, demonstrated in his famous book, “On Liberty” (1859), that knowledge and enlightened judgment are impossible to achieve unless one is willing to consider all facts and opinions, and to test one’s own opinions against those challenging his own. As such, all opinions, even those without merit or evidence have value since they force us to compare those ideas with our own. Such a measurement  or test will  enable us to determine that our own ideas are stronger than those opposing ours or, conversely, that ideas in opposition to our own are superior, which would compel us to rethink our position and seek better understanding of the issues involved.

Listening to the opinions of dissenters thus promotes individual needs and goals, and serves the great societal purpose of discerning the “truth,” that is, better ideas and opinions. Supression of unpopular speech thus undermines the “marketplace of ideas.”

Shannon Hubbard of Detroit holds a sign during a protest in Grosse Pointe Park on Sunday, Feb. 21, 2021. She attended one of two protest marches in the city on Sunday in response to a recent hate speech incident.

Third, freedom of speech is an integral part of self-government. Speech that critiques and perhaps criticizes governmental policies, programs and laws serves the vital purpose of ensuring thorough consideration of alternatives. It may also correct flaws in the policies and point the way to superior approaches. If the government can censor or suppress speech that criticizes government, then it is undermining the important role that citizens can play in influencing and shaping their government.

Fourth, free speech is critical to the process of peaceful  societal change.  Ideas can be evaluated before they are put into effect, which can spare the country unnecessary loss if they are weak and unworthy of implementation. It also serves to promote discussion that can help to avoid resort to violence. Suppression of ideas will often force individuals or organizations to “go underground,” in order to present their views.  It is far better for the nation if ideas surface so as to promote examination of their relative strengths and weaknesses.

These rationales for free speech were at the center of the controversies that arose when laws passed in the name of preserving national security clashed with the expression of dissenting viewpoints. These clashes gave rise to important cases before the Supreme Court in the context of World War 1 and its aftermath that shaped First Amendment law in our nation.  Next week, we look at how the court approached and resolved these constitutional issues.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. Send questions about the Constitution to Dr. Adler at NDWTPColumn@gmail.com and he will attempt to answer them in subsequent columns.

K. William Boyer is the Managing Editor of the Devils Lake News Journal. He can be reached at kboyer@gannett.com, or by phone at (701) 662-2127.  

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