The Indispensable Right: Free Speech in an Age of Rage
By Jonathan Turley.
Simon & Schuster, 2024.
Hardcover, 432 pages, $30.99.
Reviewed by Luke C. Sheahan.
Free speech lurks amid many of the controversies of the last several centuries. From Charles I’s infamous attempt to arrest critics in Parliament in the early 1600s to John Wilke’s conflict with the monarchy in the mid-1700s to suppression of the press during the War for Independence, the abolitionist movement, the Civil War, and diverse conflicts of the twentieth century. For more than a century, the Supreme Court has been increasingly protective of speech rights, but the justification offered by jurors and others is largely instrumental. Their arguments focus on the value of freedom of expression to advancing other values.
Arguments for free speech can be divided mainly into intrinsic and instrumental arguments. Most, including those we find in the law, fall into the latter category. The most prominent of these is the argument for democracy. In a democracy, citizens must talk to each other to make governing decisions. Therefore, they ought to be afforded the right to free speech. In this view, freedom to speak is desirable insofar as democracy requires it. The classic form of this argument was advanced by Alexander Meiklejohn in his Walgreen Lecture, published in 1948 as Free Speech and Its Relation to Self-Government.
Another prominent instrumentalist argument is the argument from truth. Free speech deserves protection because it is a valuable mechanism for securing philosophical, social, political, and scientific truths. John Stuart Mill makes such an argument in On Liberty. Other instrumentalist arguments defend free speech for its value to other rights such as religion, press, and association.
Much less common is an argument for free speech as valuable in its own right. What of the intrinsic value of free speech?
Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law at George Washington University Law School, argues in The Indispensable Right: Free Speech in an Age of Rage that free speech is intrinsically valuable for what it does for individual persons. It is essential to what makes us human, he suggests. More on that in a moment.
Thinking about free speech in this expansive manner goes back a long way. The Greeks distinguished between speaking freely as a democratic citizen, Isegoria, the equal right to participate in a democratic society, and Parrhesia, the freedom to speak one’s mind outside democratic channels. This distinction is sometimes lost in the arguments of the last century. However, perhaps more concerning is that the instrumental argument for free speech is much more constricting than many of its proponents seem to realize. If it’s true that you can only speak on matters of importance to democracy, vast swaths of issues are excluded from discussion at any given time. That in itself doesn’t mean that the instrumentalist arguments are not true. But proponents of these arguments might be alarmed at how limited the freedom actually is under conditions of instrumentality. Look no further than the repeated calls to censor in the name of “misinformation.” If free speech is important to truth, then a corollary may follow that censorship of falsehood is also necessary to truth.
The greatest threats to free speech often emerge from rage, surely a defining characteristic of our time. From January 6th to various social media incidents, we are constantly collectively wound up. This is dangerous for free speech. “Rage is often found at the furthest extreme of reason,” Turley writes. Rage also has a social function. It is often a justified response to injustices. This is nearly always cast in a liberal vein, tearing down various institutions and social structures where injustice is thought to be embedded, but it need not be. The injustices of abortion or even the injustices born of irresponsible government spending and other forms of Progressive overreach deserve more than subdued criticism. The American War for Independence sprang out of rage at the injustices of English governance in the 1760s and 1770s, encapsulated in the Declaration of Independence’s list of grievances.
Turley makes a unique originalist argument for the Speech Clause of the First Amendment. Generally, the Speech Clause was originally understood to mean protection for whatever was protected in the common law of England. Under the common law, there developed protection from prior restraint. The government could not prohibit the publication of pamphlets ahead of time for the content of speech. That did not mean the government was forbidden from punishing authors and publishers after publication. John Milton famously inveighed against prior restraint in his famous Areopagitica before Parliament in the 1640s. Namely, authors and publishers could face accusations of seditious libel for criticisms of government figures, such as the king and colonial governors and legislatures.
Against the common law understanding, Turley reads the Speech Clause through the lens of its primary author, James Madison. For several reasons, Turley doesn’t buy the originalist understanding as constricted. First, the text of the First Amendment contains no textual limitations. There might be doctrinal limitations, but significantly, the text does not admit to the common law restrictions. Furthermore, when the Adams administration got Congress to pass the Alien and Sedition Act, Madison wrote his Report of 1800 supporting the Virginia Resolution against the Alien and Sedition Acts. There, Madison argues that the Acts limit a sovereign people whose rights to speak and publish on the government preempt any governmental privilege. Perhaps in the English system, since the Crown was sovereign, it made sense for there to be restrictions upon verbal disparagement of the sovereign. But in a republic, the people are sovereign, and thus, in our system, it makes no sense for such restrictions to apply. Madison is here closer to the instrumentalist argument for free speech, but it nonetheless demonstrates that an expansive interpretation of the First Amendment is well within reason.
Leonard Levy is probably the most prominent originalist scholar on the other side of this issue over the last century—and certainly the most learned. Turley refers to Legacy of Suppression, where Levy documented American prosecutions for seditious libel in the colonial and early republican period, arguing that seditious libel remained an essential part of the American legal tradition even after separation from Britain. Turley disagrees that this was the fundamental meaning of the Speech and Press Clauses, even if bad actors continued to act as if it were. Interestingly, in the second edition of that book, Levy admits that a great many prosecutions didn’t get off the ground because, while the common law was assumed to apply by the legally educated, the common man out on the street, the sort of man who sat on both grand and petit juries, didn’t see it that way. They may not have been able to articulate their reasons, but as Michael Oakeshott argued, practice is prior to theory. The practice of many a common man on the jury was to let the prosecutors get nowhere. This is a point Turley doesn’t make, but should have. We may not read philosophical defenses of free speech in the early republican period, but we encounter an extended practice for free speech and free press, even if far from completely legally protected. As early as 1735, in the infamous John Peter Zenger case, a colonial jury broke rank with the judge and refused to find Zenger guilty of seditious libel. Turley doesn’t refer to Levy’s concession in the second edition, but it strengthens his argument in that it shows that there seemed to be a fundamental shift on free speech and free press away from the common law, not just in Madison’s mind, but in the minds of the American people. This was not articulated by the jurists by and large, but the careful historian (such as Levy) identified such a change.
Admittedly, this is not a slam-dunk historical argument. As scholars like Levy point out, there are countervailing movements. But Turley does point to a real fundamental historical shift on free speech and free press in the First Amendment, even if it takes more than a century to work itself out in jurisprudence.
Core to Turley’s argument is that free speech is justified in the natural law—by which he means modern natural law. Free speech must attach to any coherent understanding of individual rights. In this, Turley is solidly in the liberal tradition. But his argument goes further, drawing from a more nuanced understanding of the person than we often regrettably find in liberal philosophy. Turley cites cognitive science research that suggests communication, i.e. speech, is essential to aspects of cognitive development. Parts of the brain will atrophy without speech. Those who don’t speak, voluntarily or involuntarily, lose something in their ability to think and communicate. Free speech protects this fundamental human capacity for communication inherent in the higher brain functions that make us fundamentally human. So far, so good—for the liberal.
But consider what this means for persons in community. It means, first, that our brains are at their best when communicating with each other, an essential aspect of community. Put another way, we have yet more evidence of Robert Nisbet’s thesis that persons are fundamentally communal. One ramification of that is our intrinsic need to speak. Free speech cast in these terms carries much more weight than a mere individualist understanding of the right would indicate. The human brain isn’t made merely for expression but for communication with other human beings. Free speech is indeed indispensable if we are to be truly human in community.
Even though a law professor, Turley helpfully handles the philosophical issues. His argument on the intrinsic value of free speech tracks that of Hrishikesh Joshi’s in Why It’s Ok to Speak Your Mind. Free speech is more fundamental to human beings than we have hitherto appreciated.
There is a great deal more in the book on Supreme Court case law than indicated in this review. The reader encounters excellent summaries of the major free speech controversies throughout American history. Most of these are familiar to anyone who took a constitutional law class in college or who more or less paid attention to the highlights of American social movements from colonial independence to abolitionism to civil rights. Even so, I study and teach on these issues and cases, and Turley relates details that I had not encountered before. His style is quick and breezy, intended for a popular audience, while retaining scholarly authority. Few will put down his book without being edified and entertained.
Luke C. Sheahan is Assistant Professor of Political Science at Duquesne University, Nonresident Senior Affiliate at the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania, and Editor of The University Bookman. He is author of Why Associations Matter: The Case for First Amendment Pluralism (2020) and editor of International Comparative Approaches to Free Speech and Open Inquiry (2022).
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