By Ronald K.L. Collins
It is ironic: Free speech is seldom free. It often demands a price. There is a comic adage that says, “tell your boss what you think of him and the truth will set you free.” Indeed. Too often, such is the cost of free speech.
The aspirational goal of the First Amendment is to reduce the punitive costs of exercising free speech rights for everyone from irksome anarchists to self-righteous anti-abortionists to confrontational environmentalists to vexing Tea Party types to those who trade in taboo. Faithfully applied, the First Amendment should allow all Americans — including people of color and people of conscience — to voice their own life gospel regardless of how offensive it might be to the rest of us, the respectful many.
Toleration is the stock of the First Amendment. It holds in reserve the patience needed to prevent the punitive costs typically associated with breaching societal norms by contesting them or even mocking them. If the First Amendment did not protect offensive expression, why would we need it? After all, there is no reason to protect speech with which we agree or ideas which we accept or values which we cherish. The whole idea of the great Madisonian experiment is stay the government hand when it would be oppressive, when it would censor those whose messages we abhor.
Lenny Bruce, the vulgar satirist, died for our First Amendment sins in convicting him for words crimes. Lawrence Ferlinghetti, the publisher of City Lights Books and founder of City Lights Bookstore, fought censors to defend a poem (Howl). The costs of such abridgements are far too high for any society committed to First Amendment ideas. They are part of a past that reminds us of our censorial blunders.
To be American is to celebrate, not denigrate, dissent. Sure, we may disagree. True, we might take strong exception. What to do? The remedy is to respond in kind: add more speech (your speech) to the mix. You cannot stand those folks who demonstrate at military funerals? Okay. So why not demonstrate around them? That is, form a protective circle around our fallen military men and women and thereby do your part to diminish the hateful message of those who feel that is their God-given duty to disseminate hate. To celebrate the idea and practice of dissent does not mean that one must yield to bigotry or homophobia or mean-spiritedness. It just means that we tolerate them. Consider, for example, two forms of dissident expression I have witnessed recently:
A man stands outside of the Vatican Embassy in Washington, D.C. He is a regular at his protest post on the sidewalk where he holds huge signs that say things like “The Vatican Aids Pedophiles.” Is it true? Is it fair? I don’t know, though I have a view on the matter. What I do know is that this sign of dissent is a good sign in America. I celebrate it!
Abortion protestors stand on an island in the street holding graphic posters with gruesome images of disembodied fetuses. I turn my head. Do I share their views? No! But I confess to taking some strange comfort in the fact that their public spectacle is tolerated, no matter how much it causes commotion in my circle of comfort.
Today Muslims and government whistleblowers sometimes bear the brunt of intolerance. Some don’t like their mosques in our neighborhoods, while others have no patience for those who release government secrets about government wrong-doing. They irk us; they contest our life creed; and they are said to place our safety at risk. Stop them, slap them, wiretap them, imprison them, drive them out of our society or into our prisons. The outsider, the non-conformist, the agitator — they’re all insufferable to many of us at some time or even most of the time.
Censors, of course, have a variety of devious ways for dealing with insufferable types. Take, for example, “free speech zones” — an Orwellian turn of phrase if ever there was one. Such zones (like the ones at the 2004 Democratic National Convention) are an anathema to the liberty ideal embodied in the First Amendment. And yet, our society permits them on campuses and elsewhere with the hope that dissident messages can be foiled by fences or ruled by regulations.
In the end, know this: the speech we defend is the liberty we preserve. Yes, the costs of freedom are always great, no matter what the era or society. Then again, to be unwilling to pay such a price is to be unfit for that kind of government worthy of a free people.
Ronald Collins is the Harold S. Shefelman scholar at the University of Washington School of Law. He is the co-author with Sam Chaltain of We Must not be Afraid to be Free (2011), and On Dissent (2013), with David Skover. His next work, also with Skover, is an e-book titled When Money Speaks: Campaign Finance Laws, the McCutcheon Case & the First Amendment, due out next spring.