By John Hood, Raleigh-I am about as close as you can get to a First Amendment absolutist. When it comes to “the freedom of speech, or of the press,” the framers of the constitutional amendment chose to be unambiguous: “Congress shall make no law” abridging these freedoms.
Add in the federal protection against state abridgement of personal liberty incorporated in the 14th Amendment, as well as the state protection of “freedom of speech and press” by the North Carolina constitution, and it should be obvious to even the most obtuse politicians that they have no legitimate power to restrain our freedom to say, print, broadcast, blog, or tweet whatever we please.
To say that government lacks the power of prior restraint, however, is not to say that there can never be legal consequences to exercising one’s freedom of speech. If you use the power of speech or press to orchestrate violence, defraud a customer, commission a burglary, or libel someone’s reputation with knowingly false allegations, you subject yourself to civil or criminal jeopardy.
Still, when it comes to the idea that government ought to be able to restrain the ability of its citizens to express their views — by such means as censorship, licensing, or regulating the amount of money people can spend expressing themselves — you’ll find no support for it within America’s founding principles (although American politicians have not, alas, always lived up to those principles).
I am certainly glad of that. I’m glad that free speech receives such broad and deep protection. But contrary to what some claim, freedom of speech is not the most important right enjoyed in a free society. And protecting freedom of speech, while praiseworthy, is far from sufficient.
What’s more important? Freedom of action.
After all, if some tyrant decides it would be expedient to confiscate your home, imprison your family members, and march you off to the gallows, he does not magically transform himself into a libertarian by asking if you’d like to utter any last words before you swing.
In a free society, you should be free to make your own decisions about your own life and that of your family as long as you do not infringe on the equal rights of others to do the same. You have the freedom not just to think what you want, and to say what you want, but to act on it.
This is not a quibble. It is a significant distinction. To suggest that freedom of speech is the fundamental guarantor of liberty is implicitly to grant the right of someone else to determine your scope of action. Sure, you may get to make your case to that authority — but so does everyone else.
I am no anarchist. In fact, I think the whole concept of anarchy is silly. Just as most human beings possess natural impulses to trade, barter, reproduce, and entertain each other, there is also a natural human propensity towards violence as a means of settling conflicts, obtaining resources, or exacting revenge. It has always been so. As far as anyone knows, it will always be so. It is human nature.
The question becomes, then, how that propensity for violence is to be restrained and channeled into institutions of justice rather than into barbarity. To accept the inevitability of government is to accept that one’s freedom of action may be limited to the extent necessary to carry out the legitimate ends of that government. That is, not only does my freedom to swing my fist end in the vicinity of your face, but I also have an obligation to surrender a portion of my earnings to pay for the enforcement of anti-fisticuffs laws and other legitimate government programs.
My point is simply that maximizing the freedom to speak, while valuable, is less important than maximizing the freedom to act – which includes the right not to have to justify your actions to the government. In other words, it means the freedom to say nothing at all.