Constitutional Law

Be Very Afraid! The Free Speech Chicken Littles Are Coming!

The struggle between societal elevation via unchecked competition of ideas versus fear of societal unrest continues.

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The modern era of free speech, beginning with Oliver Wendell Holmes’s now infamous (in free speech circles) dissent in Abrams v. United States, has seen drastic increases in free speech protection. At every step however, a doom and gloom Chicken Little type alarm was issued warning of danger and mayhem just around the corner. Before I address one of the most recent examples, let me be absolutely clear about one thing: words and ideas can kill. Only a fool would deny this. Indeed, if they did not have this kind of power our Republic would cease to function, as democratic voting depends entirely on the expression of words and ideas.

The Founders understood and wielded the awesome power of speech and ideas. They initially took swift actions to protect expression, but within a decade, about half the Founders (after attaining political power) quickly back peddled into passing laws such as the Sedition Act that broadly censored both speech and ideas. This pre-modern, 19th century period of our country’s history experienced a degree of censorship of speech undeniably more extensive than we do today. The reason for this was fear — fear that unfettered expression would threaten the stability of the country. When Holmes first began to challenge the notion that censorship was a necessary bulwark to stability by invoking Darwinian concepts of competition — where challenging and testing social norms was transformed from something to fear to something vital in the search for truth — many at the time understandably balked.

In Holmes’s time, there was good reason to be scared. Mob violence, political assassinations, mass bombings, revolution, and the mere potential for mindless social upheaval from unforeseen sources was far more prevalent in Holmes’s world than in ours. In the face of such violence and fear, not even Darwin’s factually based scientific work was immune to the government censor. Despite the prevalence of fear however, Holmes became resolute that the proverbial free speech floodgates should be opened. Why or even how could Holmes commit to such a seemingly “radical” position in the face of so much violence, misery, and death? The answer it turns out is rather simple: Holmes had simply followed the evidence.

Influenced by Darwin’s breakthroughs, Holmes became convinced that human expression and ideas advance like evolution itself, independent of singular human purpose, yet utterly dependent upon adaption to the environment in which they are formed. Therefore, to Holmes, the essential quality that could advance our society in pursuit of moral truths was competition among all but the clearest and presently dangerous speech. In forming his Clear and Present Danger test, Holmes always maintained that speech which causes serious harm could be censored, even punished. However, Holmes was also clear that before speech could be censored the government had to prove the speech actually caused or would result in the claimed harm. Mere speculation or assumption was not enough.

Zechariah Chafee, a great influencer of Holmes’s work, put it that “the essential question is not, who is the judge of the criminality of an utterance, but what is the test of its criminality.” Encroachments upon the right of free speech should be permitted only if they can survive an objective evidence-based test establishing that the speech in question actually causes identifiable harm or that censoring it will materially alleviate or prevent such harm. When placed under this type of scrutiny, over time, the dominant view of the eighteenth century that censorship was essential for social order and good government crumbled from the weight of clear and convincing evidence. As I have repeatedly pointed out here at Above the Law, during the modern era of substantial increases in protection of personal liberty, including free speech liberty, the country has become safer and safer. In other words, the passage of time has completely validated both Chafee and Holmes’ arguments that censorship was not necessary to maintain stability.

However, despite being thoroughly refuted by almost a century of data, the censorious instinct remains alive and well in modern society, as have the claims that unless certain ‘dangerous’ speech is censored, violence and mayhem will assuredly follow. The most recent free speech “controversy” that has brought out the Chicken Littles arises from the supposed danger from the free flow of information on how to 3D print guns. So, let’s apply an evidence-based test to determine whether this information presents such an imminent danger of death or serious harm that censorship is warranted. The simple facts: the information in question regards entirely lawful products, has been readily available on the internet for quite some time, and there is already a law on the books making it illegal to create a firearm capable to pass metal detectors undetected.

In light of these facts, my response to those who claim this information will so obviously lead to an outbreak of physical violence, is the same response used by Holmes: Okay, prove it. Where is your proof this information increases the likelihood of death? Given the information has been readily available for a decade where violence has decreased substantially means those claiming the sky will fall unless this information is censored have their work cut out for them.

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Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him to discuss his column.

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