In Williamson v. United States, 184 F.2d 280 (2d Cir. 1950) [PDF version], the Supreme Court Circuit Justice for the Second Circuit, Robert Jackson, wrote a decision deciding upon whether the defendants in the case should have their bail extended pending certiorari by the Supreme Court.1 The defendants in the case were convicted in District Court of “conspiring to advocate and teach the violent overthrow of the United States Government and to organize the Communist Party for that purpose.” For this post though, I would like to highlight a poignant quote from Justice Jackson in his decision:
“But the very essence of constitutional freedom of press and of speech is to allow more liberty than the good citizen will take. The test of its vitality is whether we will suffer and protect much that we think false, mischievous and bad, both in taste and intent.”2
Justice Jackson, who is perhaps best known for being the chief prosecutor at the Nuremburg Trials, is also known as one of the most eloquent writers to sit on the Supreme Court. Justice Jackson brought his considerable talents to bear in the above passage, explaining clearly and persuasively what makes the freedom of press and speech in the United States so special. The framers did not create the First Amendment merely to protect popular speech, but also to protect unpopular speech. Justice Jackson articulates this principle brilliantly by tying the strength of our First Amendment protections not by how much popular speech it yields, but by how much unpopular speech we are willing to protect.
I thought of the above passage by Justice Jackson when I came across a survey by the Pew Research Center from November 2015 that was both interesting and disheartening [see survey].3 According to the survey, 28% of all Americans favor censoring offensive statements about minority groups. While that is certainly 28% too high, it hardly in itself seems catastrophic. However, when we break down the survey, we find that there are foreboding trends for the future.
While 28% of all Americans support censoring offensive speech against minority groups, 40% of millennials (ages 18-34) support censoring offensive speech against protected classes. Among other groups that support censoring offensive speech in greater numbers than all Americans are women (33%), Democrats (35%), non-whites (38%), those with some college education but no degree (29%), and those who do not have more than a high school education (31%).
To juxtapose some of the statistics on the Pew Survey against Justice Jackson's incisive defense of constitutional liberty is to wonder where we are headed. Our Constitution does not only protect speech that we want to hear, but speech that we do not want to hear. As Justice Jackson explained, the “vitality” of our free speech protections is gleaned from the unsavory speech we protect. It need not be said that people of good will refrain from gratuitously offensive speech, but it apparently need be said that people of good reason should understand what protecting free speech necessarily entails.
In a recent blog post, I discussed some of the disturbing undercurrents of racism and antisemitism among certain Trump supporters [see blog]. Yet, one will find upon reading the blog that I at no point argued that the First Amendment should be modified or cast aside to protect the sensibilities of the people who these louts disparage or the sensibilities of good people (such as myself) who they offend. Rather, I practiced what I am confident is the best remedy to “offensive” speech: more speech.
I urge people who agree with the proposition that offensive speech toward protected classes should be suppressed to instead follow my example and counter speech that you find undesirable with speech of your own. Rather than try to infringe upon the rights of others with principles that may well be turned against you at a later date, have faith in the ideas you hold and present them in such a manner to persuade rather than to suppress.
John Adams once wrote in a letter to his wife:
“Posterity! You will never know how much it cost the present generation to preserve your freedom! I hope you will make good use of it. If you do not, I shall repent in Heaven that I ever took half the pains to preserve it.”
It is awe-inspiring to think of what people like Adams and those who have fought and died for America throughout her history have sacrificed so that we may have liberties such as the freedom of speech. We can only hope that younger people and others who believe that the First Amendment should be curtailed will come to a different understanding of liberty. That way, Adams will not have to repent for his efforts to preserve freedom for posterity.
- The Supreme Court ultimately decided the case in Dennis v. United States, 341 U.S. 494 (1951). The Court decided that the defendant's convictions did not violate the First Amendment. Justice Jackson wrote an opinion concurring in judgment.
- Pointer courtesy of Eugene Volokh of the Volokh Conspiracy: E. Volokh, “A little-known quote from Justice Jackson, on free speech,” Volokh Conspiracy, (Aug 12. 2014), available at https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/12/a-little-known-quote-from-justice-jackson-on-free-speech/
- J. Poushter, “40% of Millennials OK with limiting speech offensive to minorities,” Pew Research Center, (Nov. 20, 2015)