PDF Summary:The Indispensable Right, by Jonathan Turley

The right to freely express oneself is a cornerstone of human liberty. In The Indispensable Right, Jonathan Turley explores the philosophical foundations of free speech and examines how this fundamental right has been continually tested and suppressed throughout American history.

Through numerous legal cases and examples, Turley illustrates how the U.S. government and various institutions have regularly attempted to restrict civil liberties under the guise of security or harmful ideologies. Turley argues for a return to the core principle of free speech as an intrinsic human right necessary for personal autonomy—not merely a privilege granted for societal functions. He calls for renewed legal safeguards to protect free expression in the modern era of content moderation and government alignment with private censorship.

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The Recent Twitter Files: Revelations concerning the collaboration among three powerful entities in coordinating efforts to stifle expression.

Turley credits Elon Musk's 2022 takeover of Twitter with uncovering widespread governmental suppression of information. Turley uses Musk's takeover of Twitter as an example to show how various influential individuals, including those in business, politics, academia, and media commentary, frequently resist initiatives by entities aimed at strengthening free speech safeguards and promoting a wider array of viewpoints.

The unveiling of papers from Twitter illuminated the joint efforts of various government entities and social media companies to pinpoint and curb specific individuals and organizations. Many people encountered limitations when they tried to question or dispute prevailing opinions on several matters, such as the efficacy of masks, the origins of the COVID-19 virus, and the integrity of voting procedures. Officials leveraged their entry into Twitter, conducting extensive keyword-based searches to pinpoint and highlight material deemed harmful or misleading.

Governmental aid that circumvents the safeguards enshrined in the Constitution's initial amendment leads to a reduction in conservative perspectives and the danger of media controlled by the state.

The book scrutinizes the methods by which organizations such as Homeland Security marginalize and repress individuals who hold views that diverge from the mainstream, including those who identify as conservatives, libertarians, or independents. The writer argues that although there is no direct media oversight by the government, it creates conditions that encourage private groups and individuals to voluntarily suppress speech they deem harmful. The backing involved leveraging economic sway over these companies, in addition to calls from the public for thorough examination.

Jonathan Turley examines the ways in which some entities use vague standards to justify the exclusion of people and internet platforms, as well as the establishment of entities such as the Disinformation Governance Board initiated by Biden. He contrasts these measures with the McCarthy era's punitive blacklisting of individuals suspected of Communist ties, actions associated with individuals such as Senator Joe McCarthy. Currently, financial support from the state is directed toward "indexes" that label conservative websites as too hazardous for advertising endeavors.

The internal contradiction of fighting misinformation while simultaneously disseminating it.

Turley argues that those in favor of suppressing and excluding others frequently disseminate deceptive information by characterizing dissenting opinions as "hate speech" or "disinformation" in an effort to suppress them. Efforts have been made to prevent rival candidates from running and to portray detractors as perilous, with President Jackson characterizing them as "hidden betrayers."

For example, it was uncovered that federal employees created false identities or used secret existing accounts to promote government positions and attack critics. Turley notes that a multitude of experts demonstrate their commitment to aiding the public by providing reliable information that enables the distinction between truth and falsehoods in a sea of deceptive data. People with power often fail to recognize their own biases. They aim to establish a narrower scope of rationality that limits the range of choices and opposing views available to individuals as they select their reading materials and preferences on social media platforms. It is, as Turley argues, a return to the paternalistic attitudes among the elite of the eighteenth century who believed that they had to control speech by those who lacked their "political discernment."

Other Perspectives

• The suppression of dissent can sometimes be seen as a government's attempt to maintain order and protect the general welfare, especially during times of crisis or war.
• The enforcement of laws, including those against insurrections, is a legitimate function of any government to ensure the rule of law and public safety.
• The actions of historical figures like Samuel Adams and John Adams can be interpreted within the complex context of their times, where the survival of the nascent republic might have seemed at stake.
• The Alien and Sedition Acts under President Adams, while now viewed as repressive, were enacted in a period of intense political division and fear of foreign influence, which some argued required extraordinary measures.
• The use of legal actions against speech in the 20th century often reflected the prevailing societal norms and fears of the time, such as the Red Scare and concerns about the spread of communism.
• The regulation of certain types of speech, like obscenity or hate speech, is often supported by the argument that it protects vulnerable groups and upholds societal values.
• The fight against disinformation can be seen as a necessary step to protect the public from harmful falsehoods that could undermine democratic processes or public health.
• During the COVID-19 pandemic, the regulation of misinformation by authorities could be defended as a means to prevent panic and ensure public compliance with health measures for the greater good.
• The collaboration between government entities and social media companies to limit expression might be justified on the grounds of national security or preventing the spread of harmful misinformation.
• The creation of entities like the Disinformation Governance Board could be argued as an effort to systematically address the challenges posed by the digital age and the rapid spread of false information.
• The use of economic influence over companies to regulate speech could be seen as a way to incentivize responsible corporate behavior and protect consumers from harmful content.
• The characterization of dissenting opinions as "hate speech" or "disinformation" might be based on a genuine concern for the impact of such speech on social cohesion and public discourse.

The waning safeguards for free speech and the impact of distinguished legal academics' sway.

The evolution of legal thought, from the time of the Star Chamber to the period when Oliver Wendell Holmes was influential, witnessed a shift towards justifying limitations on free speech by assessing the likelihood of harm.

The Enduring Impact of Blackstone's Contributions

Turley underscores that despite the Founders' intentional omission of seditious libel from the nascent Republic's legal framework, as articulated in the First Amendment, judiciary bodies swiftly embraced a rationale rooted in the principles of Blackstone to rationalize oppressive actions. This effort was facilitated by political leaders who, like their British predecessors, wanted to punish opposing voices and publications. Some judges, Samuel Chase among them, diligently pursued a rationale rooted in judicial principles to support their decisions.

Throughout the 19th century, court decisions progressively limited the breadth of expression rights for individuals who criticized war, labor unions, anarchists, and those expressing opinions on societal matters deemed "immoral," such as birth control or same-sex relationships. Jonathan Turley scrutinizes how both the legislative and executive arms of government have collectively sanctioned the curtailment and punishment of speech deemed harmful or menacing, utilizing vague standards to do so.

The perspective of Oliver Wendell Holmes on free speech jurisprudence has elicited apprehensions because of its positivist nature.

The book explores the significant actions undertaken by Justice Oliver Wendell Holmes to curtail the right to free speech. Holmes is often depicted as a steadfast advocate for civil liberties, but Turley argues that this portrayal does not hold true, given that Holmes rarely stood up for the rights of individuals or collectives without the backing of the majority. Turley attributes the decline in Holmes's career in law and the decisions that have attracted significant criticism to his commitment to positivist doctrines, particularly in matters pertaining to the freedom of speech.

Holmes viewed the liberty of expression as a privilege bestowed by the state, not as a fundamental right enshrined at the nation's inception, intended to enhance the well-being of society. He agreed with many legal experts from England that the right to free speech can be limited if its negative impact on society outweighs its benefits. Holmes's position became unmistakably clear after the decision in the 1919 case. Holmes suggested that free speech has its boundaries while striving to penalize those who opposed World War I, thereby laying the groundwork for the future establishment of criteria to evaluate immediate and substantial dangers. Expression may be either supported or sanctioned based on its possible effects on communal well-being.

The lasting impact and the controversial analogy drawn from Holmes's reference to shouting "fire" in a packed venue.

In the Schenck case, Holmes presented a comparison that has, arguably, become the most infamous and harmful in the history of American legal thought. The assertion was designed to effectively demonstrate the limitations associated with arguments about freedom of expression, while also highlighting shortcomings in Holmes's legal rationale.

Holmes emphasized that the most robust protections for free speech are not applicable to individuals who intentionally spread false information. Raising an alarm by shouting about a fire in a densely populated space. The expression struck a chord with the public and provided a convenient justification for judicial and legislative authorities to limit free speech. Schenck's conduct was mistakenly likened to the irresponsible act of falsely yelling "fire" in a crowded venue, whereas in truth, he was simply expressing opposing views on political and legal matters related to the war. Holmes's claim has often been reiterated by modern detractors of free speech, yet they commonly neglect its origins and the unstable foundations upon which it is built.

The movement towards pragmatism, coupled with the dismissal of inherent rights, has transformed the support for freedom of expression into the very force that undermines it.

Turley suggests that the principles underpinning Holmes's view on freedom of expression were profoundly shaped by the legal principles set forth by judges from Britain, such as Blackstone. Holmes considered the freedom of expression not as an absolute, unassailable entitlement but as a privilege that could be limited by governmental authorities if it was considered detrimental or perilous. Holmes strongly rejected the notion that fundamental rights constitute the foundation of free speech, denouncing the idea for its excessively sentimental articulation. Holmes considered these arguments to lack intellectual substance and complexity. He believed that every legal system originates from rules established by governmental bodies or is created through legislative procedures, a viewpoint that aligned with his contemporaries who adhered to positivism at the time.

Fostering an atmosphere conducive to the exchange of varied ideas was deemed critical for the growth and prosperity of the democratic system. Hence, the dialogue in the public domain can be subject to a degree of control without undermining the core tenets of the right to free speech. In his dissent in Abrams v. United States, Holmes revised his stance, indicating that the purpose of free speech is to benefit the common good instead of being an intrinsic right belonging to every individual. The dominant viewpoint that the Supreme Court would eventually embrace is known as the "functionalist" perspective.

Insights from Bourquin, Hand, and their peers within the judiciary.

Judge Bourquin was solitary in his belief that the tenets of free expression are intrinsically linked to the rules that oversee these activities.

Jonathan Turley offers an alternative viewpoint shaped by the decisions of various jurists who have moved away from a narrow understanding of the First Amendment regarding freedom of expression. President Taft selected George Bourquin for the federal judgeship in Montana. In Montana, a state that had contributed the highest number of soldiers per capita to the conflict, he found himself in a position where he had to make a ruling on a case involving charges related to criticism of World War I, which were brought under a law designed to penalize interference with military operations.

The courts determined that the state's power to punish speech is confined to situations directly linked to a specific criminal action, requiring evidence of an intentional effort to partake in illegal activities. He declared it a component of the principle that governs attempts to take action. The court found that the defendant's actions did not incite any acts of aggression or rebellion. Numerous media organizations and political personalities strongly criticized Bourquin. His decision was in sharp opposition to the stance of judges from a century earlier, during Adams' time, who had dismissed concerns regarding the freedom of expression.

The jurist Learned Hand recognized the widespread dissemination of false information.

Jonathan Turley explores the legal principles of free expression as interpreted by Judge Learned Hand, acknowledged as a preeminent jurist of the twentieth century. Hand recognized the importance of free speech and rejected efforts to use the Espionage Act as a means to quell dissent and the spread of purportedly false information. In the case of Masses Publishing Co. v. Patten, Hand refused to prevent the dissemination of materials opposing war via the postal system. Although Hand maintained an expansive viewpoint, he did not view the right to free speech as intrinsic or autonomous. He deemed it essential for the functioning of a democracy, yet recognized that at times these freedoms might be curtailed to align with governmental objectives.

Turley criticizes Hand's decision that upheld the convictions of Eugene Dennis and his Communist colleagues, a decision that was based on the Smith Act of 1940 in the widely recognized case of Dennis V. United States. A judicial body is tasked with evaluating the potential severity of harm while also weighing the probability of its manifestation. This exact method resulted in the prohibition of those expressions.

Decisions by Judge Amidon pertaining to the topic of free expression: Protecting expression that could result in detrimental consequences.

Jonathan Turley cites instances from Judge Amidon's courtroom in North Dakota to illustrate how the "bad tendency" doctrine was broadly employed to prosecute a range of individuals who dissented. In 1918, Amidon ruled to terminate the legal action against John Wishek, who had shared his opinion that "banks with substantial investments in Liberty Bonds are not secure repositories for an individual's savings." The officials construed the comment as a warning intended for individuals who might support the conflict. Amidon instructed the jury that they must show an attempt to engage in a specific unlawful activity, not just voice dissent against the war effort.

Amidon's sense of isolation grew as he maintained a permissive view on utterances labeled as having a 'bad tendency' and opposed the period's vigilantism, which demanded that those labeled disloyal by the authorities publicly renounce their positions. His decisions, in conjunction with those of Judge Bourquin and Judge Learned Hand, highlight the judiciary's crucial function in protecting against government excess and the quelling of free expression.

Other Perspectives

• The shift towards assessing the likelihood of harm as a basis for limiting free speech can be seen as a necessary evolution to balance individual rights with the collective safety and order of society.
• The principles of Blackstone, while used to rationalize oppressive actions, also laid the groundwork for a legal system that protects many other fundamental rights and is a cornerstone of common law.
• Limitations on expression rights in the 19th century can be contextualized as a reflection of the prevailing moral and social norms of the time, which were much different than today's standards.
• The collective actions of the legislative and executive branches to curtail harmful speech could be argued as an attempt to protect citizens and maintain public order, rather than purely oppressive measures.
• Holmes's view of free speech as a state-bestowed privilege rather than an inherent right could be interpreted as a pragmatic approach to governance, acknowledging the state's role in defining and protecting civil liberties within a societal context.
• The analogy of shouting "fire" in a crowded venue, while criticized, serves to illustrate the potential real-world consequences of irresponsible speech and the need for some form of regulation.
• The "functionalist" perspective on free speech adopted by the Supreme Court can be seen as a means to ensure that free speech serves the public interest and does not become a tool for harm.
• Judge Learned Hand's decisions, while sometimes upholding convictions that limited free speech, can be viewed as a nuanced approach to balancing free expression with national security concerns.
• The "bad tendency" doctrine, as applied by Judge Amidon, can be seen as an early attempt to navigate the complex relationship between individual rights and the potential for their abuse to cause societal harm.

The book suggests methods to strengthen the strongest protections for free speech while reducing the limitations that the government places on expression.

Creating a new foundation that supports an individual's right to self-expression.

The Concept of Harm and the Protection of Independent Thinking: This idea stems from the personal philosophical views of Locke and Mill.

Jonathan Turley champions the creation of a new basis that supports the principle of freedom of speech. The writer champions the concept that the essence of a right is anchored in individual autonomy, underscoring self-expression as a crucial element of personal dominion over one's body and thoughts, instead of associating it with the maintenance of democratic processes.

Turley suggests that this idea could stem from the belief that restricting a person's liberty is defensible only if it acts to safeguard others from injury. Turley acknowledges that Mill was a utilitarian and not a categorical advocate for individual rights, but he insists that a narrow harm principle can be drawn from Mill and applied to free speech. Mill himself criticized efforts to control conversation and advocated for a wide range of personal liberties, encompassing the right to form one's own thoughts. The ability to express oneself without restriction is deeply connected to the liberty of thought, since lacking this freedom would significantly reduce the latter.

The book's final section outlines the split in the approach to free speech, emphasizing the protection of expressions that go beyond mere matters of public concern or procedural subjects.

Jonathan Turley argues that by dividing free expression into separate tiers, each with varying levels of safeguarding, the Supreme Court has weakened the protections of the right to free speech. The result has given rise to a broad spectrum of expression that remains subject to ongoing modifications and changes. In his analysis, he cites a significant and controversial segment pertaining to the Supreme Court's decision in the case of Gertz v. Robert Welch, Inc. regarding freedom of expression. The First Amendment does not recognize the notion of a false idea as determined by the judiciary. The correction of a potentially damaging perspective depends on the interplay of diverse opinions, not on the determinations made by judges or jurors. The Constitution does not protect statements that are factually incorrect.

Turley contends that these limits, which are superficially established to safeguard freedom of expression, in fact reveal a critical weakness in the underlying principles. The judiciary does not offer explanations for rejecting these incorrect ideas, simply noting that they are challenged by a broad spectrum of viewpoints. The spread of diverse opinions and ideas, as noted by Jonathan Turley, does not consistently rectify incorrect beliefs. Assertions devoid of inherent value, like untruths posing as truths, may lead to the establishment of evaluative standards that allow for government limitations on expressions considered to have negligible significance. Protecting the right to speak freely is crucial for personal independence, in addition to its importance in nurturing democratic involvement and the sharing of ideas.

The right to free speech extends beyond mere idea exchange; it is essential for personal autonomy.

Jonathan Turley argues that viewing free speech primarily as part of a broader framework rather than an independent fundamental right dilutes the foundational principle of free expression, as the Court's rationale, which invokes the "marketplace of ideas," tends to undermine it.

This functionalist theory makes the protection of speech conditional on its perceived value or harm to society. The foundational belief of the marketplace ideology is that less compelling arguments will eventually be challenged or rejected in favor of more persuasive ones. Should the marketplace of ideas not live up to its expectations, it prompts a reevaluation of the practical reasons for upholding freedom of speech. Courts regularly reject the notion that individuals are incapable of discerning facts from falsehoods. Judicial entities have steadfastly resisted calls for more stringent content restrictions, upholding the conviction that falsehoods are an inevitable element of discourse that is unencumbered and transparent. Nevertheless, when explicit criteria are absent, the judiciary has frequently applied a less stringent standard to speech that pertains only to private issues, to expressions implying a commercial transaction, throughout a wide range of artistic creations, for advertising material, and for defamatory falsehoods.

The book proposes a revised structure of federal guidelines designed to protect a variety of viewpoints within scholarly discussions.

Jonathan Turley suggests that the true measure of dedication to freedom of expression is most effectively evaluated in the setting of academic institutions. In contrast to many other professions, they enjoy extra protections that originate from the principle of academic freedom, which is ethically grounded and enshrined in constitutional values. However, academics have been some of the strongest advocates for speech regulation and censorship, even for fellow faculty members.

For Turley, the development of a national strategy might promote broader embrace of varied perspectives by associating federal financial support with the commitment of universities and colleges to uphold essential liberties related to free speech. A possible framework could be constructed, influenced by the principles of a respected educational establishment in Chicago, which underscores the significance of diverse viewpoints and opposes any attempts to suppress specific convictions.

Defending the right to free expression against a trio of suppressive forces.

A federal ban on the distribution of funds that might benefit outside organizations engaged in censorship activities.

The ongoing pattern of eroding the freedom of expression within the United States poses a significant threat due to the government's adeptness at creating alliances with key figures in the business and educational sectors to develop mechanisms that stifle and marginalize dissenters. Turley suggests that Congress holds the power to halt financial support or aid to intermediary groups that engage in such censorship activities.

The author, Jonathan Turley, emphasizes that Congress has compelled universities to allow military recruiters on campus through legislation such as the Solomon Amendments. The Supreme Court upheld the stipulations of the Solomon Amendment for educational institutions that accept federal funding. The implementation of the "Don't Ask, Don't Tell" policy in academic settings was acknowledged by the Supreme Court as potentially jeopardizing the right to free speech. We are currently confronted with a significant threat to our liberty to think and speak freely. Institutions of higher learning are encountering demands to silence those with dissenting views rather than implementing a uniform policy. Congress possesses the power to enact new conditions tied to the distribution of federal funds.

Returning to the foundational concepts set forth in Chicago: Strengthening the rights to free speech within educational institutions and corporate environments.

Jonathan Turley points to a specific academic institution in Chicago as a model for others, promoting the development of a setting that wholeheartedly welcomes diverse viewpoints. The institution maintained principles originating from Chicago, advocating for the free flow of ideas and opposing efforts to suppress dialogue or impose specific forms of communication.

Jonathan Turley considers academic freedom to be a broader manifestation of the individual's right to express themselves freely. While higher education has a particularly vital role in society, it cannot thrive by abandoning free speech principles. Academic instructors also harbor an inherent aspiration for personal success, comparable to the ambitions prevalent among other societal members. Justice Frankfurter stated in the case of Sweezy v. New Hampshire that the quest for knowledge at a university stands as a goal in its own right, not merely a means to accomplish further objectives. In the book, the scrutinized legal cases demonstrate that frequently, both academics and judicial bodies have adopted a perspective that is more restrictive and detrimental, prioritizing various societal interests over the fundamental freedom of expression.

Freeing speech from the stigma of being characterized as seditious.

The author addresses the difficulty of overcoming the "Madisonian Behemoth" in the text. Halting the practice of accusing individuals of sedition.

The author argues that misunderstandings about the fundamental nature of free speech arise from its undefined boundaries. Historically, the assessment of free speech has balanced its beneficial effects against possible negative consequences. The result is a perpetually shifting frontier that has stifled dissent and left numerous individuals susceptible to judicial repercussions for their expressions and to the curtailment of their ability to speak freely. Acknowledging freedom of speech as a fundamental aspect of human rights necessitates a more thorough assessment of harm prior to the enforcement of penalties.

The notion that speech is the "monster" alluded to by Madison and is central to our legal principles must be abandoned. The country can move away from its British heritage by imposing detentions or sanctions only when they are directly related to a narrow spectrum of communication inherently associated with unlawful acts such as conspiracy or fraud. Under the provisions of 18 U.S.C. § 2384, the legal definition of seditious conspiracy is established, whereby it is an offense for any group of two or more individuals to engage in a plot with the intent to forcefully dismantle, subdue, or annihilate the governance of the United States, engage in hostilities against it, defy its power through force, obstruct, impede, or delay the execution of any U.S. law by force, or to forcefully take over, seize, or lay claim to any U.S. government property unlawfully. Those found guilty of such actions are subject to penalties including fines as determined by the relevant legal provisions, imprisonment for no longer than two decades, or both. The language could potentially allow for the application of penalties for even the most basic expressions of disagreement.

The recent increase in accusations of sedition within the United States, exemplified by the Eastman case, highlights the dangers associated with allowing legal theories to become grounds for criminal charges.

The continued legal actions for crimes related to sedition after the 2021 Capitol event highlight the enduring use of this charge in deliberately targeting those with extreme ideologies. These prosecutions also highlight the danger of using a functionalist justification for allowing such prosecutions, where speech itself is considered "harmful" to democracy and thus unprotected.

Jonathan Turley supports taking legal measures against those who have engaged in violent acts, but he disapproves of using seditious conspiracy charges and relying on the Eastman V. Thompson case as the foundation for such prosecutions. Jonathan Turley criticizes Judge Carter's reading of the legal documents, suggesting it reflects a nontraditional understanding of the Electoral Count Act that seems to suggest an attempt to obstruct the workings of Congress. The idea that almost every individual who has held the office of President since the founding of the United States might be subject to prosecution for intentionally advocating an unfounded legal notion is worth contemplating. Numerous commanders-in-chief have assumed stances that clashed outright with the mandates of the Constitution, sometimes to incite examination by the judiciary or to establish fresh legal benchmarks.

It is essential to move beyond antiquated defenses for sedition that rely on the now-defunct "bad tendency" test.

set an extraordinary example in the protection of a crucial human freedom by no longer prosecuting seditious speech and related infractions. The declaration would strongly emphasize the fundamental importance of the First Amendment in forging the essence of American identity.

Jonathan Turley argues for a clear shift away from the "bad-tendency" logic that has been popular among legislators and judges since the establishment of the United States. Sedition should only be applied to clear actions that are aimed at the direct intention or concrete planning to execute specific illegal acts. Turley maintains that the rejection of prosecutions targeting speech that causes “alarm” or “distress” would not only reaffirm the intent of the Founders and the language of the First Amendment, but place the United States in a powerful position as a protector of free speech in the world.

Other Perspectives

• The harm principle, while valuable, may not always be clear-cut in its application, and some argue that it can be too permissive, allowing speech that could incite violence or hate.
• The focus on individual autonomy in free speech might overlook the societal impact of harmful speech, such as hate speech that can lead to discrimination or violence against marginalized groups.
• The idea of a marketplace of ideas assumes that all ideas will have an equal chance to be heard, which may not account for power imbalances in society where some voices are systematically silenced or marginalized.
• The proposal to tie federal funding to free speech protections in universities could be seen as a form of government overreach into academic affairs and a potential threat to academic independence.
• The suggestion to ban funding for organizations engaged in censorship could be criticized for potentially infringing on the autonomy of private organizations and leading to government overreach.
• Strengthening free speech in corporate environments may conflict with a company's right to control its brand and maintain a certain image or message, which could be undermined by unfettered employee speech.
• The argument against labeling speech as seditious might be challenged by those who believe that certain forms of speech, such as incitement to violence, should indeed be subject to legal consequences.
• The rejection of the "bad tendency" test for sedition could be seen as too lenient, potentially allowing dangerous speech that could lead to lawlessness or anarchy.
• The criticism of seditious conspiracy charges in the post-2021 Capitol event might be countered by the view that these charges are necessary to deter and punish actions that threaten democratic institutions.
• The call to protect speech that causes "alarm" or "distress" may be contested by those who argue that some speech, such as false information during a public health crisis, can have serious and detrimental consequences that justify restrictions.