How Much Are You Willing to Pay to Have Free Speech?

James McHenry was born in Ireland in 1753. His Scots-Irish family send him to America in 1771 after he became sick from studying too hard. He may also have been sent to check out the colonies in anticipation of the entire family’s eventual immigration. In fact, a year later, the McHenry clan settled in what were then (for only a few years more) the British Colonies.

McHenry finished his studies in Philadelphia before serving as an apprentice under Benjamin Rush. You may remember Rush as the doctor/patriot who signed the Declaration of Independence, the founder of Dickinson College and the mentor/teacher of both Meriwether Lewis (of Lewis & Clark fame) and future president William Henry Harrison.

Perhaps influenced by Rush, or maybe the whole Philadelphia experience, McHenry joined the cause of the patriots. After the British captured and then released him, McHenry served on the staffs of both George Washington and General Lafayette.

Two things about McHenry stand out in his long and illustrious career as a Founding Father. It’s likely you don’t know his connection to either.

The first is the “Star-Spangled Banner.” Francis Scott Key wrote the poem titled “Defence of Fort M’Henry” while watching the British bombard the fort in the Baltimore Harbor during the late evening/early morning of September 13-14, 1814. Those words would later become the lyrics of our national anthem. That fort was Fort McHenry, named after James McHenry.

The second is a story you’re no doubt familiar with, but less familiar with its source. Following the successful conclusion of the Constitutional Convention in 1787, McHenry wrote this story in his diary:

“A lady asked Dr. Franklin Well Doctor what have we got a republic or a monarchy. A republic replied the Doctor if you can keep it.”

For those curious, McHenry later added a footnote to this entry indicating the “lady” was Elizabeth Willing Powel, wife of Samuel Powel, the once (1775-1776) and future (1789-1790) mayor of Philadelphia.

“A republic, if you can keep it.” These words exemplify both the triumph and fragility of our grand American Experiment. At various times in our nation’s history, the citizens have brought us to the edge of Franklin’s stark warning.

It seems as if today is one of those times.

For all the power of its fundamental text, it remains the Bill of Rights, an addendum critical to passing the Constitution, that represents the foundation of our nation’s instruction manual.

And within that Bill of Rights sits its cornerstone, the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

For several decades now, America has gnawed at the sanctity of those words. Within the last week, we’ve seen two flagrant attempts to obviate the First Amendment.

Writing in the November 16, 2023 issue of The Chronicle of Higher Education, Richard Amesbury and Catherine O’Donnell of Arizona State University are none too blunt in their assessment. They title the article “Dear Administrators: Enough With The Free-Speech Rhetoric! It Concedes Too Much To Right-Wing Agendas.”

Their essential premise is: “Our contention is that calls for greater freedom of speech on campuses, however well-intentioned, risk undermining colleges’ central purpose, namely, the production of expert knowledge and understanding, in the sense of disciplinarily warranted opinion. Expertise requires freedom of speech, but it is the result of a process of winnowing and refinement that is premised on the understanding that not all opinions are equally valid. Efforts to ‘democratize’ opinion are antithetical to the role colleges play in educating the public and informing democratic debate. We urge administrators toward caution before uncritically endorsing calls for intellectual diversity in place of academic expertise.”

We might forgive these two professors for not understanding how once certain scientific theories have since been proven false (e.g., Phrenology, Steady-State Theory, Spontaneous Generation, etc..)

We are less forgiving (especially since Amesbury is a professor of religious studies and philosophy and O’Donnell is a professor of history) when their insistence on “expert knowledge” comes straight from the same Vatican Court that labeled Galileo as a heretic for his role in spreading “disinformation” (i.e., Copernicus’ theory that it was the Sun, not the Earth, that is the center of the Solar System).

Ah, “disinformation.” That’s the new buzzword for censorship. You traditionalists out there need not worry, though, for “hate speech” remains high on that same list of trigger words used to justify eliminating the First Amendment.

Our own Governor, seemingly inspired by such academic thinking as we see coming out of Arizona State, has decided New York State must step in to thwart wrongthink. As Democrats and Republican anti-Trumpers nation-wide spread mis-directing allegations that “Trump = Hitler,” Kathy Hochul has just instituted a new policy straight from George Orwell’s novel Nineteen Eighty-four.

On November 21, 2023, New York’s Governor announced she was allocating $3 million to fight hate speech. It may sound like a pittance, but it is the proverbial camel’s nose under the tent.

In doing this, Hochul appears to be using the outdated “clear and present danger” test to remove First Amendment protections. This standard emerged in Supreme Court rulings in the early twentieth century and lasted for about fifty years.

For the first century or so of its existence, the Supreme Court shied away from commenting on First Amendment issues. The earliest—and, until today, greatest—challenge to the First Amendment was the infamous Alien and Seditions Acts. Rather than ruling on this, the Supreme Court deferred to the legislature. When Jefferson defeated Adams for the presidency, he quickly and unequivocally reversed this law.

At the height of World War I and the rise of communism, the Supreme Court finally stepped in. In ruling against the Socialist Party of America official Charles Schenck, Justice Oliver Wendell Holmes created the “clear and present danger” test for free speech cases. He wrote, “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The Court expanded the definition of the test when it upheld the conviction of activist Eugene Debs later that year.

Succeeding Courts overturned free speech convictions because they failed to meet the standards of the “clear and present danger” test.

In one case, Justice William O. Douglas wrote, “a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

This represents the beginning of the unraveling of the “clear and present danger” test. In another case, Chief Justice Fred M. Vinson wrote: “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.”

It was in that same case where Justice Felix Frankfurter’s concurring opinion finally ended the “clear and present danger” test by introducing the “balancing test.” He wrote, “The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process.”

The coming of the Vietnam War protests brought a series of free speech cases which essentially restored the First Amendment to its original purity (for non-commercial purposes, at least).

The Brandenburg v Ohio case in 1969 brought down the hammer when the majority ruled, “Our decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.”

In a different case two years later, Justice John Marshall Harlan II summed up the primacy of the First Amendment when he wrote in the majority opinion, “One man’s vulgarity is another man’s lyric.”

Of interest and relevance given the ongoing New York case against Donald Trump is the Supreme Court ruling in 1941 which provides that public criticism of court officials must not be abridged which it wrote, “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”

Finally, and to prove this is truly a bipartisan issue, we have Republican presidential candidate Nikki Haley, echoing Ron DeSantis’ similar sentiments, vowing to outlaw anonymous speakers on social media platforms. Granted, they both later qualified their earlier comments, but their knee-jerk reaction to unfavored speech shows neither side of the political spectrum is immune.

Maybe their reversal came about when a legal adviser reminded them that the Supreme Court stated the First Amendment preserves anonymity. In a 1960 case, Justice Hugo Black wrote in the majority opinion, “There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. … Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.”

Circling back to Hochul and her attempt to force school children to adopt whatever prevailing narrative New York State compels them to abide by, this, too, has failed to meet the standards of the Supreme Court. In one case, Justice Robert H. Jackson majority opinion plainly stated, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

And yet, Hochul says this, “We’re very focused on the data we’re collecting from surveillance efforts – what’s being said on social media platforms. And we have launched an effort to be able to counter some of the negativity and reach out to people when we see hate speech being spoken about on online platforms.”

Maybe those same school kids targeted by Hochul can remind her of that popular playground adage: “Sticks and Stones may break my bones, but words will never hurt me.”

You can’t be in favor of free speech and believe the government should ban “hate” speech you disagree with.

That’s how you lose a republic.