This essay by William J. Haun, which contrasts the Founders’ understanding of freedom of speech with the modern “absolutist” view, is a timely addition to the public conversation about freedom of speech. It comes to us on the heels of Constitution Day, an occasion for all Americans to learn about and reflect on our fundamental law. This year, the Jack Miller Center has made Freedom of Speech the theme of its Constitution Day Initiative. Be sure to check out our new resource center on freedom of speech to learn more about this important and urgent subject.
The Natural Law of Free Speech
William J. Haun
From the Library of Law and Liberty
With Progressives increasingly condoning censorship of conservative views as “hate speech,” conservatives are responding with an increasingly absolutist freedom of speech. Some recent essays written in reaction to the Antifa/neo-Nazi violence in Charlottesville show the appeal that the absolutist view has to conservatives: If political communities were prohibited from drawing content-based restrictions on almost any expressive activity, dissent from the dominant political and cultural orthodoxies (read: conservative views) would be protected.
To be sure, the absolutist view is rooted in the past half-century of Supreme Court jurisprudence. Even so, conservatives ought to pause before embracing it.
Free speech absolutism is, to begin with, a position that lacks a basis in the Founders’ political philosophy, in the Free Speech Clause’s original public meaning, or in the reality that only a people capable of controlling their passions are capable of preserving self-government. It surrenders to moral nihilism the ability to see principled distinctions between the speech that can harm the civic virtue required for republican government and the speech critical to republican government.
The Right, rather than point out absolutism’s lack of support in our Founding or in the requirements of self-government, seems to find it an alluring posture given dominant cultural forces’ militant hostility to conservative views. Fear of drawing principled distinctions, however, is not a conservative tenet. Conservatives interested in conserving both the Constitution and the conception of liberty with which that document is imbued have good reason to reconsider an absolutist freedom of speech.
At the Founding, as I have argued in National Affairs and Public Discourse—and many judges and scholars, including Justice Samuel Alito and Judge Robert Bork, have expressed similar views—the freedom of speech was understood to facilitate truth-seeking on matters of public concern for the benefit of self-government. While some who argue as these conservatives do will want to dispute what constitutes speech on a matter of public concern, speech lacking in social value, including seditious libel, was often restricted if not prohibited in the United States.
William J. Haun is a lawyer in Washington, D.C., with experience litigating complex matters involving federal regulation, administrative law, and commercial disputes. In private practice at Hunton & Williams LLP, Haun represented prominent clients–including elected officials, business leaders, and constitutional law scholars–in respective amicus efforts before the U.S. Supreme Court in Robert F. McDonnell v. United States (a major challenge to federal public corruption laws) and Zubik (Little Sisters of the Poor) v. Burwell (a religious liberty challenge to the HHS mandate under the Affordable Care Act).