PDF Summary:The Indispensable Right, by Jonathan Turley

Free speech is under threat—and it always has been. In The Indispensable Right, Jonathan Turley examines the philosophical foundations of free expression, arguing that the urge to speak freely is a fundamental human impulse that predates organized society. He explores the harm principle as a framework for determining which speech deserves protection and traces the legal evolution of free speech rights through landmark Supreme Court cases.

Turley discusses how both government and society have historically suppressed dissenting views, and how legal interpretations have shifted from natural rights perspectives to utilitarian and positivist approaches. He addresses contemporary challenges to free expression—including the "speech-as-harm" reasoning gaining ground in universities and corporations—and offers strategies for protecting speech rights while balancing them against other societal interests.

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The harm principle doesn't cover injuries stemming from ideas. Certain specific forms of expression may lead to prosecution, even without overt actions. They must meet the elements (including intention) for offenses such as fraud or conspiring to carry out specific crimes. Legitimate charges of criminal activity include threats deemed genuine and attempts if they show intent to commit illegal acts of violence against specific individuals. This excludes rage rhetoric used in the political context. It opposes the rising "speech-as-harm" reasoning spreading throughout colleges, the media, and companies.

Hate Speech as Harmful

Legal philosopher Jeremy Waldron, in The Harm in Hate Speech, argues that certain forms of public expression—particularly hate speech—can inflict serious harm on the social standing and dignity of their targets. He contends that laws may legitimately prohibit public expressions that vilify or defame people on the basis of race, religion, or other vulnerable characteristics, because such expressions work to erode their social standing and undermine the public good of inclusiveness that a just society is committed to sustaining. Waldron’s position directly contradicts Turley’s dismissal of “speech-as-harm” reasoning.

Legal Developments and Justifications

Turley notes that legal interpretations have shifted from perspectives grounded in rights inherent to humanity to utilitarian and positivist ones. Utilitarianism evaluates the importance of free speech compared to other public interests, while positivism holds that laws are valid and legitimate when they are made through appropriate legislative means. Both philosophies dismiss Locke and other natural rights proponents.

Under utilitarianism, free expression is required to sustain an arena of ideas, which prioritizes social interests over individual ones. Under positivism, freedoms such as expression aren't considered moral rights inherent to human beings.

The Shift to Utilitarianism and Positivism

The shift from natural rights to utilitarian and positivist approaches to free expression reflects broader changes in legal and political thought during the nineteenth century. As societies industrialized and became more complex, legal thinkers like Jeremy Bentham and John Austin sought to make law a tool for achieving policy goals rather than a reflection of inherent moral rights. This shift was driven by a desire to create more predictable and efficient legal systems that could manage the challenges of modern life. Utilitarianism and positivism offered frameworks for lawmakers to balance competing interests and adapt laws to changing social needs.

We will also examine how landmark legal cases have impacted interpretations of free expression rights.

Landmark Cases and Their Impact

Turley highlights Whitney v. California and Cohen v. California as landmark cases that illustrate the nuanced nature of free speech rights. The Whitney v. California decision involved Charlotte A. Whitney, a political activist and suffragist from a rich San Francisco family. She belonged to the Communist Labor Party and was convicted under California’s Criminal Syndicalism Act for her association with the party and her advocacy of radical political change. In Whitney v. California, Justice Louis Brandeis wrote a separate opinion that emphasized the importance of freedom of expression as both a goal and a tool.

(Shortform note: The Whitney v. California case emerged during the First Red Scare, a period of intense fear and suspicion of communism and radical political movements in the United States following World War I. This era was marked by widespread paranoia about the potential for revolutionary activity, particularly in the wake of the 1917 Bolshevik Revolution in Russia. The Red Scare was fueled by a series of events, including labor strikes, bombings, and the rise of anarchist and socialist movements. In response to these perceived threats, many states, including California, enacted laws like the Criminal Syndicalism Act to suppress radical political activity.)

He contended that free expression is crucial for uncovering and disseminating political truths, as well as for airing grievances and proposing solutions. However, he also stressed the necessity of demonstrating that speech will probably lead to imminent danger or illegal actions, and he upheld Whitney’s conviction. Cohen v. California involved Paul Robert Cohen, who was arrested and convicted for wearing a jacket with the words “F**k the Draft” in a Los Angeles County Courthouse during the Vietnam War era. In this matter, the justices ruled in Cohen's favor, with Justice John M. Harlan authoring the majority opinion. The Court decided that Cohen’s conviction rested on the offensive language he employed to express his message, and that the state wanted to penalize him for communicating, rather than for any specific conduct.

The Evolution of First Amendment Jurisprudence

In Perilous Times, Geoffrey R. Stone traces the evolution of the Supreme Court’s First Amendment jurisprudence, highlighting the shift from the “bad tendency” test to the more speech-protective “clear and present danger” standard. Stone argues that the Court’s early reliance on the “bad tendency” test allowed legislatures to criminalize a wide range of political advocacy, even when it posed no immediate threat to public safety. He explains that the Court’s eventual embrace of the “clear and present danger” test reflected a growing recognition that democratic self-government depends on the ability to criticize the government, even in ways that are vehement, caustic, and unsettling. Stone’s analysis suggests that the Court’s decisions in cases like Whitney and Cohen represent important milestones in the ongoing struggle to balance free expression with the perceived needs of national security.

Historical and Contemporary Threats to Freedom of Expression

Turley asserts that freedom of speech has faced historical and contemporary threats from both government and society. The U.S. has a history of suppressing free speech, beginning with John Adams' presidency and continuing through the courts. The state has made speech a crime and suppressed dissenting views. The U.S. has also experienced a cycle of fear-driven politics and the limitation of speech.

(Shortform note: In Perilous Times, constitutional law professor Geoffrey Stone explores the history of free speech in the U.S. He argues that the U.S. has repeatedly gone through a cycle of fear-driven politics and the limitation of speech. He explains that the Supreme Court has responded to these cycles by creating more robust standards for punishing political speech.)

Policy Recommendations for Protecting and Recovering Free Speech

We will examine legal strategies for safeguarding free expression.

Legal Strategies for Protecting Speech

Turley explains that legal strategies often involve balancing freedom of expression with societal interests. For instance, in Britain, Parliament members' free speech rights would be safeguarded, but criticizing leaders and judges would be criminalized, deemed essential for effective governance.

The highest court in the U.S. has ruled that certain types of speech, like fighting words, don't have First Amendment protection due to their low social value and potential to incite violence. The government has a history of classifying various types of speech as inflammatory rhetoric that could incite others to act.

(Shortform note: “Fighting words” is a legal term for a narrow class of speech that includes direct, face-to-face personal insults. The Supreme Court first identified fighting words as a distinct category of speech in 1942. In Chaplinsky v. New Hampshire, the Court upheld the conviction of a man who called a city marshal a “damned fascist” and a “racketeer.” The Court reasoned that such insults were “fighting words” that could provoke a violent response and therefore weren’t protected by the First Amendment.)