Vermont Bar Journal
Fall 2006 - #5.
The Mixed Character of Free Speech and Its Implication for Public Schools in America
THE VERMONT BAR JOURNAL FALL 2006
by Murray DryThe Mixed Character of Free Speech and Its Implication for Public Schools in America
When Frank Davis and Mike Palmer invited me to speak to Vermont high school history teachers about free speech, I thought that a cluster of Supreme Court decisions that dealt with free speech issues in the high school setting would interest you. In one case students wore black armbands to school to protest the war in Vietnam.(fn2) In another, a school board attempted to remove books from a school library.(fn3) Another involved a crude student speech in a high school auditorium.(fn4) And the fourth concerned a school principal's censorship of a student newspaper.(fn5) But since the Vermont Bar Association's Conference emphasizes rights and responsibilities, I decided to begin with some general reflections on free speech. Free Speech:
I believe freedom of speech is one of democracy's mixed blessings. Indeed, democracy may itself be mixed blessing. The framers of the American Constitution recognized that when they limited majority rule with checks and balances, including a judiciary with life tenure. Because educators have duties that go beyond the government's fundamental task of securing rights and providing defense, the educational setting uniquely shows how freedom of speech can pose a challenge to us. We do not always see this, since despite our experience that speech can be false, insulting, vulgar, and even dangerous, we tend to identify it in the abstract as an unqualified good. Probably that is because we also identify democracy as an unqualified good and we know that free speech and democracy go together.
To illustrate our tendency to praise free speech, I will discuss two famous Supreme Court opinions. My first example is from Justice Oliver Wendell Holmes' dissent in Abrams v United States.(fn6)
[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by a free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be carried out. That, at any rate, is the theory of our constitution. It is an experiment, as all life is an experiment.(fn7)
The second example comes from Justice Louis Brandeis's concurrence in Whitney v New York.(fn8)
Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberate forces should prevail over the arbitrary. They valued liberty both as an end and a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the discrimination of obnoxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.(fn9)
Relying on these famous expressions, Constitutional law scholars list three ends of free speech: to advance knowledge and truth; to facilitate representative democracy and self-government; and to promote individual autonomy and self-development. If we scrutinize these justifications, however, we discover that they are, as presented, either not true or not entirely desirable.
Consider the notion that truth will win out when there is full freedom of speech, as if the need for truth were like a desirable and correctly priced product in a market place of goods and services. First, we in fact do limit the claims drug manufacturers can make for their products, and in general we accord less freedom of speech to commercial speech. Why do we impose these restrictions? Is it not because we are confident that in these situations it is possible and necessary to sort truth from falsehood, and by doing so we avoid likely harms?
Though Holmes took the notion that truth wins out in such a marketplace of competing claims from John Stuart Mill, Mill himself said that "the dictum that truth always triumphs over persecution [is] one of those pleasant falsehoods that men repeat after one another till they pass into commonplaces, but which all experience refutes."(fn10) He did later claim: "As mankind improve, the number of doctrines which are no longer disputed or doubted will be constantly on the increase: and the well-being of mankind may almost be measured by the number and gravity of the truths which have reached the point of being uncontested."(fn11) But is it necessarily the case that over time we tend to agree on more and more matters, and that such agreement constitutes the truth about a matter? To pit philosopher against philosopher, consider the words of Francis Bacon. In his Advancement of Learning, Bacon identified one error of the mind as a "conceit that of former opinions or sects, after variety and examination, the best hath still prevailed and suppressed the rest."(fn12) Bacon replies: "for the truth is that time seemeth to be of the nature of a river or stream, which carrieth down to us that which is light and blown up, and sinketh and drowneth that which is weighty and solid."(fn13)
In his high-toned celebration of free speech, Justice Brandeis reflects both the self-development and the self-government rationales, without for a moment suggesting that the two might conflict with one another. To present an alternative position, I want to consider Plato's famous dialogue, The Apology of Socrates. This is Plato's dramatic depiction of the trial that led to the capital conviction and then death of his friend and teacher, Socrates. Three individual Athenian citizens charged Socrates with corrupting the young and not believing in the gods of the city. He was tried, convicted, and, after a separate consideration of the penalty, sentenced to death by a democratically composed...