Thank you all for coming.
We are, I am sure, headed into a lively conversation about an issue that always seems to be at the boiling point.
Certainly today, free expression is on the front burner, with the gas turned up to high.
As a society we argue for the value of free expression even as we worry about its risks.
Big questions are with us always, it seems: When does the demand for civility and tolerance become suppression of speech? What do we really mean by hate speech? What are we really saying when we accuse others of being politically correct? If we prohibit hurtful speech, are we condoning censorship?
And then there is the inescapable role of today’s technology: Is it promoting the sort of free expression our nation’s founders envisioned? Or is it allowing the right of free expression to serve as cover for the dissemination of deliberate falsehoods and crackpot conspiracy theories — with the aim of manipulating the electorate?
Arguing on behalf of the First Amendment, James Madison famously said: “The right of freely examining public characters and measures, and of free communication among the people . . . has ever been justly deemed the only effectual guardian of every other right.”
And yet it’s worth remembering that this country’s full embrace of the First Amendment and — in fact, its full embrace of what we came to call the Bill of Rights – is a relatively recent phenomenon, which may explain why we’re still arguing about it, trying to figure out what it means and how we feel about it.
It didn’t take long after the first 10 amendments to the Constitution were ratified on December 15, 1791, for Congress to demonstrate its disregard and disrespect for free expression. In 1798, it passed the Alien and Sedition Act, which made criticizing the president or Congress or other high government officials a crime in many instances.
As First Amendment scholar Floyd Abrams has written, “That repressive law, adopted by the John Adams administration, led to the jailing of 20 newspaper editors and was the single greatest frontal attack on freedom of speech in the nation’s history.”
There have been many other attacks, most notably the Sedition and Espionage Acts under President Woodrow Wilson and the McCarthy Era, with its malicious search for enemies.
In fact, the entire set of 10 amendments we now call the Bill of Rights didn’t make a strong impression on Americans for decades.
Indiana University law professor Gerard Magliocca notes in his recent book “The Heart of the Constitution” that, while the United States joyfully celebrated the centennials of the Declaration of Independence and the Constitution, it did nothing to mark 100 years of the Bill of Rights.
Not until 1941, on the 150th anniversary of those rights – during the presidency of Franklin Delano Roosevelt and in the first days of war with Imperial Japan and Nazi Germany – did this country celebrate what the president called a “declaration of human rights which has influenced the thinking of all mankind.”
Finally and thankfully, we began to see the Bill of Rights – including and perhaps especially the First Amendment — as central to what makes the United States genuinely exceptional.
Witnessing the horror of the Third Reich, this country came to truly value its foundational principle of free expression for all. And, I must add, it came to expect a press that does its work with vigorous independence from government.
FDR once declared that “Representative democracy will never tolerate suppression of true news at the behest of government.”
Supreme Court Justice Robert H. Jackson wrote in 1945 on behalf of the First Amendment: “every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.”
Two years earlier, in 1943, it was Jackson — with the nation at war and totalitarian regimes in mind – who wrote a ringing endorsement of free expression that helped frame how we understand it today.
“Those who begin coercive elimination of dissent,” he wrote, “soon find themselves exterminating dissenters.”
And he added: the “First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.”
Justice Jackson’s stirring words, in my view, serve as a perfect introduction to our conversation here today.
I look forward to some spirited free expression about free expression in the hours ahead. And I thank you again for coming.