By David Callaway
The next time you are with a group of friends or colleagues, ask them this piece of trivia: “What freedoms are all Americans guaranteed by the First Amendment?”
Do you know?
Some may even be surprised “freedoms” is plural. If your friends and colleagues are like most Americans, they will likely correctly state “free speech” as one such freedom. In 2019, the Freedom Forum’s State of the First Amendment Survey found 64 percent of U.S. adults could name freedom of speech as a guaranteed right of the First Amendment. The next most-often named right was religious freedom at only 29 percent, followed by freedom of the press (22 percent, assembly (12 percent) and petition (four percent).
We should not be surprised. The last decade has seen several “free speech” debates rise to national prominence. Notable examples include the many athletes, most famously Colin Kaepernick, who have peacefully protested for the rights of people of color, concerns about censorship on college campuses like Middlebury and University of California, Berkeley and disagreements about the role and impact social media sites play in our national discourse. In 2019, Mark Zuckerberg, Facebook chief executive officer, found “free speech” a valuable Trojan horse when he used a Georgetown University speaking engagement to rewrite his company’s origin as a dating site, claiming it was instead founded to give voice to opponents of the Iraq War.
I use quotation marks for “free speech” above because many such debates are not truly First Amendment or constitutional issues, however the rhetoric and discussion around them is often framed by a guaranteed right to free speech. While many believe freedom of speech is a natural right—not one that can be given or taken away by a government—confusion about what is and what is not protected by the constitution has produced a rise in free speech absolutism, or the ideology that speech of any kind—hateful, derogatory, or even violence inciting—should never be censored. Proponents use compelling language like “marketplace of ideas” to imply that only the “best” and “good” ideas will multiply and take root. Ignoring the obvious question—“‘good’ and ‘best’ for whom?”—any cursory look at your social media feeds will quickly show that often divisive, angry voices win out over calls for understanding and peace.
In this race to protect free speech for all, we have forgotten what history can teach us. Two hundred years ago, in the wake of the Revolutionary War, Americans were in the process of conceptualizing and codifying how their nation would be different from those that came before. This process produced the U.S. Constitution in 1787, but debates continued about which freedoms Americans possessed and from which governments (state or federal) or supernatural entities they flowed. Originally against a “Bill of Rights,” James Madison fought for a series of constitutional amendments to combat self “interest and passion” that could lead to another constitutional convention. Madison proposed 12 amendments—two regarding the composition of Congress that have interesting histories for another time and 10 amendments that laid out rights every American is guaranteed. Those 10 amendments became known as the “Bill of Rights” and, while they went through several revisions, freedom of speech was never the first right protected.
What always came before free speech? Freedom of conscience. The first congressional delegates thought that the right to believe our deepest beliefs was chief among all others and originally separated what we think of as the First Amendment in two: We would first be guaranteed the right to believe and exercise our conscience, then a second amendment would cover speech, press, assembly and petition. When the drafters thought it best to combine those freedoms in one article, religious freedom retained its primacy, where it is still the first right Americans are guaranteed by the Bill of Rights. That is a lesson that seems lost on us today.
The ardor to protect the act of free speech has entirely skipped past the inherent value and dignity of the speaker. The religious freedom clauses of the First Amendment served then, as today, as a civic framework for living together with our deepest differences. They help us find common ground and see each other as full Americans, deserving of every protection that we enjoy ourselves. When we begin by acknowledging the humanity of the speaker, differences of taste or politics or religion or sports team can be tempered by mutual understanding and respect. This is especially important when we consider the immediacy of speech in the digital age and its ability to impact far more people at a far faster rate than in any other time in our country’s history. That ability to spread our speech is inversely proportional to our ability to understand how that speech impacts others, and thus, promoting free speech without the context of freedom of conscience imbalances these debates in favor of self-interest and passion James Madison feared. The First Amendment does not require civility, however, when taken in full, it can be a framework for living civilly in a diverse democracy.