Living with Free Speech
Whenever I am forced—as I have been this month by Alexander M. Bickel (p. 60)—to think seriously about freedom of speech and the problems it poses, I instantly find myself getting depressed. I tend to take an absolutistic position on freedom of speech, roughly on the ground that restricting it seems on the whole to entail more odious consequences than letting it run entirely wild. Yet I know that the absolutist position is very hard to uphold against the arguments Mr. Bickel recites. And not only is the absolutist position highly vulnerable on the theoretical plane; it is increasingly hard to defend wholeheartedly in the face of certain of its concrete results, the most vivid of which is the spread of hard-core pornography. As it happens, I myself am not as troubled by this particular phenomenon as many libertarians are, but I do have my own favorite horrible examples. The main one is the truly astonishing privilege enjoyed since the Sullivan case by the press and television to libel with impunity, to lie with impunity, and with equal impunity to invade the privacy of anyone whose privacy they choose to invade.
Being a writer and a magazine editor, I share in that privilege and perhaps I should be grateful for it. Nevertheless, I cannot help wondering why the media should be entitled to unchecked power when no other institution, whether public or private, is deemed by any respectable body of opinion to be so entitled. Indeed, the very people who protest most loudly against any attempt by the government to interfere with the freedom of newspapers or television networks to say or do whatever it may pleas/?/—or profit!—them to do are also the ones most loudly demanding that the government should interfere more and more with the freedom of other private corporations to do whatever it may please or profit them to do.
I very much doubt that this contradiction can be resolved satisfactorily in theory. But of course an American need not resolve it in theory; he need only cite the First Amendment—“Congress shall make no law . . . abridging the freedom of speech, or of the press”—and he need only point out that no similar prohibition so unambiguously protects the freedom of any other economic enterprise. The New York Times, in short, is protected, but General Motors is not. And, in truth, in the presence of such plain language as the First Amendment uses, there is no escaping the force of the late Hugo Black’s famous insistence that when the Constitution says “Congress shall make no law . . . abridging the freedom of speech, or of the press,” it means that Congress shall make no law abridging the freedom of speech, or of the press.
As Mr. Bickel shows, there were restrictions on freedom of speech that even Black was willing to impose, not because he was a hypocrite or more than ordinarily inconsistent, but because it is virtually impossible to tolerate absolute freedom of speech under any and all circumstances. Still, no sooner does one acknowledge this than the inexorable clarity of that language rises up to haunt one again: “Congress shall make no law . . . abridging the freedom of speech, or of the press.” What can be done with words like these? When in another clause of the First Amendment the Constitution forbids “an establishment of religion,” or when in the Eighth Amendment it prohibits “cruel and unusual punishment,” the way is left wide open to judicial interpretation. Does federal aid to parochial schools violate the prohibition against an establishment of religion or not? Is the death sentence for murder cruel and unusual punishment or not? The answers are by no means obvious, and both the negative and the positive are reasonably consistent with the language of the Constitution. But no such vagueness attaches to the clause dealing with freedom of speech and the press. Thus although there are good reasons for restricting those freedoms under certain circumstances—in wartime, for example, or in Holmes’s crowded theater where, he decreed, the First Amendment does not protect the right to cry “Fire!”—the words of the Constitution themselves cannot be convincingly read to admit of any restriction.
It would seem to me, then, that so long as we continue to honor the First Amendment, we will continue to be burdened as a political community with more freedom of speech than may well be good for us to live with, assuming that it is even humanly possible. In this respect Americans, commanded to accept absolute freedom of speech, may be compared with Christians commanded to turn the other cheek: neither can succeed in obeying but both are required to try, and both will be led uneasily into casuistry whenever it becomes necessary to sin against the clear sense of the injunction.
However, precisely because we must try to be absolutists where freedom of speech is concerned, it is all the more important to maintain as firm a distinction as we can between speech and other forms of behavior not singled out by the Constitution for privileged protection. Mr. Bickel is certainly right when he observes that the effort to draw “a bright line between communication and conduct” often falls into absurdity. But surely there is a line in reality between verbal and non-verbal behavior, wavering and fuzzy though it may generally be. To hurl an obscenity at a policeman, for instance, is speech; to hurl a rock at him is not and neither is spitting in his face. Yet we hear it claimed on the one side that the First Amendment does not extend to the former, and we hear it claimed on the other side that actions like the latter are a kind of speech and hence protected by the First Amendment. Well distinctions can always be blurred, but I for one would like to see more energy devoted by the courts and everyone else to keeping the line between verbal and non-verbal behavior clear even if, as Mr. Bickel says, there can never be any hope of always keeping it bright.