A Little Bit Pregnant: Freedom of Speech in America

Published on Cyrano.org, by Maryscott O’Connor, June 19, 2008.

… “The best test of truth is the power of the thought to get itself accepted in the competition of the market,” Justice Holmes wrote.

And therein lies the proof that, while it may take an agonisingly long time, American society eventually places its own social strictures against hate speech. Not so long ago, most of this country thought nothing of referring to African Americans as “niggers.” Politicians used the word in their respective houses, employers used it while interviewing blacks for jobs… Such behaviour today is not only frowned upon — it results in the wholesale societal shunning of its perpetrators. The word hasn’t disappeared; far more people use it as an epithet than polite society would like to know. But the fact remains that it has become speech that is unacceptable to most Americans — and it didn’t take a law to make it so.

So, too, should be our approach to all hate speech. We know it when we hear it or read it; and the fear of universal reprisal from one’s fellows is a far more effective bar against uttering the words of intolerance, hatred and ignorance than what would of necessity be a set of frighteningly mutable laws leaving it to whichever government happens to be in power at any given moment. The righteousness motivating the creation of such laws would not only fail to mitigate the infringement of the individual’s right to freedom of speech; it would provide the sort of loophole in our Constitution we more often than not come to abhor, like those created by similarly ill-considered precepts validated by the Supreme Court over this nation’s history (Plessy v. Ferguson, Whitney v. California, Dennis v. United States, et al.).

“I think that we should be eternally vigilant,” [Holmes] added, “against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”

In his dissent against the majority verdict in Dennis v. United States. Justice Hugo Black wrote,

So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or our own notions of mere “reasonableness.” Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those “safe” or orthodox views which rarely need its protection….

There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society … (full long text).

(Maryscott O’Connor, a senior contributing editor at Cyrano’s Journal Online, is the founder and editor in chief of a fraternal blog, Myleftwing.com, http://www.myleftwing.com/
noted for its brave topicality. Myleftwing.com is in many ways emblematic of the future direction of citizens’ media
).

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