The First Amendment: A Right to Listen

By Rebecca Heilweil

Rebecca Heilweil is a freshman at the University of Pennsylvania.

Free speech is perhaps the basis of American democracy. As the opening of the Bill of Rights, the First Amendment holds that "Congress shall make no law...abridging the freedom of Speech." The first ten amendments of the Constitution were meant to dilute a strong national government, seen as a federalist victory. They represented an attempt to re-solidify the individual as the unit of New World republican values, rather than an overly empowered President or Congress. 

Free speech is often thought of as the power of the individual to speak up against the government. However, Supreme Court reasoning offers an alternate view. While patriotic rhetoric paints the First Amendment as a declaration of individual agency, judicial reasoning often prefers to classify the freedom of speech as communal or utilitarian.

According to many constitutional theorists, the "speaker" is not the only agent that has stakes. There is also an audience. The First Amendment does not protect the right to talk, but rather attempts to satiate the public's need to listen. In the case R.A.V. v. City of St. Paul, the Supreme Court considered a Minnesota ordinance that criminalized hate speech. [1]A teenager had been caught burning a cross on an African-American family's front lawn. There was no question that the boy had committed a hateful act, and that he was expressing a political opinion.

Elena Kagan, in a University of Chicago Law Review article titled "Private Speech, Public Purpose" posited that the ordinance had failed the long-established content neutrality standard – this required that a government law could limit speech, but could not do so based on the content of the speech.[2] For example, the government cannot ban Republican T.V. advertisements, but could possibly ban all T.V. advertisements. Associate Justice Antonin Scalia, who wrote the decision, seemed to agree, concluding that the government "may not prohibit, for example, only that obscenity which includes offensive political messages." [1]

But the decision did not center around the issue of the boy's right to speak. Rather, the Court wondered whether the community – the audience – was harmed by skewing the general diversity of views and opinions through proscribing certain types of speech. Kagan, explaining the outcome of the case, argued: "the ordinance discriminated in its operation on the basis of viewpoint; the law effectively barred only the fighting words that racists (and not that opponents of racism) would wish to use. The ordinance, while not restricting a great deal of speech, thus restricted speech in a way that skewed public debate on an issue by limiting the expressive opportunities of one side only...the ordinance ensured that listeners would confront a distorted debate." She then quoted philosopher Alexander Meiklejohn, who wrote: "What is essential...is not that everyone shall speak, but that everything worth saying shall be said." [2]

Meiklejohn, in many ways, went farther than Kagan. In his piece “Free Speech and its Relation to Self-Government," he wrote: "It is that mutilation of the thinking process of the community in which the First Amendment to the Constitution is directed."[3] He argued that free speech is the right to hear. Meijklejohn, like many other free speech theorists, believed that discourse was a tool for improving governance. When ideas, free in their own market, can compete, people are free to consider which of those ideas are best and ought to be implemented. According to Meiklejohn, the burning cross was a message that the public had the right to judge the validity of without government interference.

The concept of a market of ideas is not solely Meiklejohn's. When John Stuart Mill described free speech and its significance in his famous "On Liberty," he saw public discourse as vital to the search for public truth, not simply communal prosperity. [4] Mill believed criticism was the only route to public infallibility and that the public needed to be simultaneously debating and educating itself. He thought truth could become false without opposition, and that the general populace was harmed by "false" facts not constantly questioned by his "idea market."

In R.A.V. v. City of St. Paul, the Court ultimately concluded that there was a difference between ordinances that proscribed "fighting words," which as a class were intolerable, and fighting words of only a certain type of message.

A question also exists of how involved the government ought to be in the free speech realm. The Court in R.A.V. v City of St. Paul, determined that in some cases, the government could certainly minimize some types of speech, as long as that minimization is content line. The question remains if, and how, the government can function as a creator of speech itself. The Court offered that rather than limiting hateful speech, the government could pursue alternate methods of encouraging tolerance: "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire." [1]

Meiklejohn, like others, saw free speech as the cornerstone of the social contract. The public used free speech to actively consider the role of their governance, and their self-government. How such interpretations of our First Amendment will change over time still remains to be seen.

 
[1] R.A.V. v. City of St. Paul, 505 U.S. 377.
[2] Elena Kagan, "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," The University of Chicago Law Review, Vol. 63, No. 2 (Spring, 1996): 413-517. 
[3] Alexander Meiklejohn, "Free Speech and its Relation to Self Government," Harper and Brothers Publishers (1946).
[4] John Stuart Mill, "On Liberty," (1869). 

Photo Credit: Flickr user Ed Uthman