Jonathan Turley is a law professor, columnist, television analyst, and litigator. Since 1998, he has held the Shapiro Chair for Public Interest Law at George Washington University Law School. He has served as counsel in some of the most notable cases of the past two decades and has testified before Congress over a hundred times. Turley’s writing has been published in the New York Times, Wall Street Journal, Washington Post, Los Angeles Times, and USA Today, and has been a legal analyst for CBS, NBC, BBC, and Fox.
Below, Jonathan shares five key insights from his new book, The Indispensable Right: Free Speech in an Age of Rage. Listen to the audio version—read by Jonathan himself—in the Next Big Idea App.
1. What is rage?
We are living in an Age of Rage. It permeates every aspect of society and politics. Rage is liberating, even addictive. It allows us to say and do things that we would ordinarily avoid, even denounce in others. Rage is often found at the furthest extreme of reason. For those who agree with the underlying message, it’s righteous and passionate. For those who disagree, it’s dangerous and destabilizing.
Thomas Jefferson would tell James Madison that a little rebellion now and then is a good thing. Rage rhetoric is the ultimate stress test for a system premised on free speech. It is a test that we have often failed, as the rage of dissidents has produced rageful responses from the government. We have a right to rage. It’s rageful acts, not speech alone, that the state should punish. Yet, in any Age of Rage, free speech is often the first victim.
What few today want to admit is that they like the rage. They like the freedom that rage affords, the ability to hate and harass without any sense of responsibility. It’s evident all around as people engage in language and conduct that they repudiate in others. We have become a nation of rage addicts flailing against anyone or anything that stands in opposition to our own truths. Like all addictions, there’s not only a dependency on rage but an intolerance for opposing views.
2. What is free speech?
Free speech is a human right. It is the expression of thought that is the essence of being human. Free speech is often justified in what I call functionalist terms. It is protected because it is necessary for a democratic process and the protection of other rights.
Former Supreme Court Justice Louis Brandeis argued that free speech is indispensable because most rights are realized through acts of expression, be that from the free press or religious exercise. However, free speech is more than the sum of its practical benefits. It is the natural condition of humans to speak. It is compelled silence or agreement that is unnatural. That is why it takes coercion or threats to compel silence from others.
We rarely teach the philosophy of free speech to young students. Natural and autonomous theories tie free speech to a pre-existent or immutable status. As such, it is not the creation of the Constitution but rather embodied. In that document, one of the founders’ most influential philosophers was John Locke.
“Creation is the expression of ourselves, the projection into the world of our values and visions.”
In 1689, Locke presented his labor theory of property as a natural right that flowed from a divine gift to create. The desire to create objects or expressions is irresistible for most people. From the simple act of doodling to the construction of the Great Wall of China, it is seen in the Lascaux cave art from 17,000 BCE to the graffiti on the walls of New York City today. Creation is the expression of ourselves, the projection into the world of our values and visions.
What makes us human is a subject heavily infused with subjectivity and religiosity. How we view humanity depends on how we view the potential and position of humans. Like other animals, we procreate. We experience pain and pleasure. We share chemical, muscular, and emotive impulses just as other animals. We share 98.7 percent of our genetic sequencing with great apes like chimpanzees and bonobos. Does that make us more conversant, less hairy apes? We also share 80 percent with cows and 61 percent with fruit flies—even a 60 percent overlap with bananas. The effort to distinguish a human from a banana is easy, with comparisons from color to complexity. However, it is easier to explain why we are not bananas than to explain what makes us human beings. Humans are more than talking bananas despite our shared genetic sequencing. To be human is to create and these creations are a form of speech. Whether it is a column, cake, or a cathedral, creation is a quintessentially human act.
3. The indispensability of unreasonable people.
George Bernard Shaw once said that a reasonable man adjusts himself to the world. An unreasonable man expects the world to adjust itself to him. Therefore, all progress is made by unreasonable people.
Like many of the free speech figures discussed in this book, Anita Whitney was a brilliantly unreasonable person. Even when she was a child, a friend and fellow communist said Whitney was a challenge, a puzzle even. What made Whitney tick was clearly social justice and a deep-seated faith in free speech. She was a suffragist and political activist for the Communist Party in the early 20th century. She saw desperate poverty and wanted to end it. Whitney believed that there was an inalienable right to free speech that belonged to all citizens and that a real American cannot be blamed for demanding freedom of opinion and freedom of speech.
However, on November 29th, 1919, Whitney prepared to give a speech at the Oakland Center of the California Civic League. The police originally canceled the speech because she was declared a woman of known political tendencies. A compromise was reached. They would allow her to speak, but only if she consented to having an American flag on the stage and a police officer. As she walked on stage with the officer looming near her and other officers in the crowd, Whitney had to know that she was about to give the government what it was waiting for. This woman of a refined and established family from the country’s founding was about to become an official enemy of the state.
“Free speech is indispensable to the discovery and spread of political truth and to discuss grievances and proposed remedies.”
Whitney denounced lynchings occurring around the country and was promptly arrested. Authorities used Whitney’s work to establish the local Communist Party as the basis for the charge. The media joined in the call for Whitney’s conviction. The attacks were a mix of sexism and sensationalism. The Sacramento Bee declared Whitney: a woman of education and with all the advantages possessed of wealth and with the opportunity of doing great good for her fellow creatures has prostituted her talents for years to the service of the lawless and disorderly. The jury deliberated just six hours and found Whitney guilty. In roughly a dozen years, Whitney had gone from admission to Wellesley College to a sentence at San Quentin Prison.
Her case would become famous for its concurrence by Justice Brandeis in which he declared free speech to be indispensable and under our constitution. However, the rest of the discussion suggests a narrower and likely more intended meaning. Brandeis rattled off the classic functionalist purpose of free speech to enable citizens to seek change and perfect the democratic system. Free speech is indispensable to the discovery and spread of political truth and to discuss grievances and proposed remedies. There is no question that he is correct. Free speech does all of that and more to protect other rights and citizens. However, the focus on that democratic function lends itself to a balancing test based on the value of given speech within that functionalist construct.
4. Finding the “42” of free speech.
In Douglas Adams’s 1979 science fiction novel The Hitchhiker’s Guide to the Galaxy, a supercomputer named Deep Thought is asked to answer the ultimate question about life, the universe, and everything. After 7.5 million years of calculations, Deep Thought finally reveals the answer to the meaning of life: 42. Deep Thought’s answer was a brilliant commentary on macro theories that seek to explain life’s mysteries and our tendency to search for a single unifying answer to complex questions.
Free speech itself is simple—in the act, nothing is more straightforward. Likewise, the denial of free speech is often as plain as a gag or a ban. However, free speech is more than the act of speech, and its denial is more than the act of arrest. If free speech is a human right, the exercise or abridgment of that right transcends the specific message or context of the expression. Free speech is not about perfecting democracy; it’s about perfecting ourselves. It is part of an individual’s interaction with the world. The restoration of free speech values will require a clarity and conviction that has long evaded our country and courts. At the founding, many were drawn to a natural rights basis for free speech and the writings of John Locke, who stressed inevitable rights that included the freedom of thought. While it is not an absolute right, it is not simply a right used for democratic purposes. A natural or liberty-based right avoids the sand trap of functionalism, where speech becomes less protected depending on its inherent contribution to participatory or democratic values.
“Free speech is not about perfecting democracy; it’s about perfecting ourselves.”
The trade-offs become greater the further you move away from the speech used to advance political change or causes. This can lead to a greater content-based series of judgments on what speech should be favored or disfavored. The erosion of free speech will continue until we embrace an autonomy-based concept of free speech. While it is a bit much to claim an answer as succinct or complete as “42,” it is possible to define the outer limits or framing of the answer for this quintessential right. Free speech demands bright lines; ambiguity and uncertainty are its death knells. The absence of clarity on the use of free speech drives the chilling effect of citizens self-censuring rather than risk sanctions. That clarity is offered in the harm principle of John Stewart Mill, who articulated a limited view of government action.
Under that principle, the sole end for interfering with the liberty of action of any of their number is to prevent harm to others. Mill defined the legitimate scope of government powers protecting citizens from the harms of others, but that did not generally include protecting them from harmful ideas.
5. Hope for free speech.
One great advantage to believing in a natural or autonomous basis for free speech is a certain optimism. The current anti-free speech movement cannot entirely change us. We are hardwired for free speech with a psychological, even a physiological, impulse to create. If you believe that free thought and expression are the essence of being human, that impulse cannot be entirely extinguished.
While we can lose our appetite for free speech, we can never truly lose our taste for it. Ultimately, our faith in free speech is really a faith in each other. This is indeed an age of rage; however, rage is not what defines us. It is free speech that defines us.
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