The last couple of weeks have been interesting. Politicians have called for the silencing of media personalities, such as AOC and Mitch McConnel. Networks have fired primary journalists and commentators, CNN's Don Lemon and Tucker Carlson. And much talk concerning Free Speech has been bantered. So what exactly is Free Speech?
Introduction of Panel
Tucker's J6 coverage 3:16-5:04 https://www.youtube.com/watch?v=Opy7MLGAPBk
Tucker's Mulvaney Coverage 0:00-0:33 https://www.youtube.com/watch?v=Qr8OPmPE-j4
AOC's Response Full: https://www.youtube.com/shorts/Mt4LW1TtmPc
Dylan Mulvaney's Response Full https://www.youtube.com/watch?v=TzJcs1hmT_A
First off, it is important to note the shifting definition from the founding of the United States through the present day.
Webster's 1828 Definitions:
FREE'DOM, noun
1. A state of exemption from the power or control of another; liberty; exemption from slavery, servitude or confinement. freedom is personal, civil, political, and religious. [See Liberty.]
2. Particular privileges; franchise; immunity; as the freedom of a city.
3. Power of enjoying franchises.
4. Exemption from fate, necessity, or any constraint in consequence of predetermination or otherwise; as the freedom of the will.
5. Any exemption from constraint or control.
6. Ease or facility of doing any thing. He speaks or acts with freedom
7. Frankness; boldness. He addressed his audience with freedom
8. License; improper familiarity; violation of the rules of decorum; with a plural. Beware of what are called innocent freedoms.
SPEECH, noun
1. The faculty of uttering articulate sounds or words, as in human beings; the faculty of expressing thoughts by words or articulate sounds. speech was given to man by his Creator for the noblest purposes.
2. Language; words as expressing ideas. The acts of God to human ears cannot without process of speech be told.
3. A particular language, as distinct form others. Psalms 19:2.
4. That which is spoken; words uttered in connection and expressing thoughts. You smile at my speech
5. Talk; mention; common saying. The duke did of me demand, what was the speech among the londoners concerning the French journey.
6. Formal discourse in public; oration; harangue. The member has made his first speech in the legislature.
7. Any declaration of thoughts. I, with leave of speech implor'd, repli'd.
2023 Merriam-Webster's definitions are as follows:
Free Speech: speech that is protected by the First Amendment to the U.S. Constitution
also : the right to such speech
an unconstitutional restraint on free speech —
Nat'l Law Jour.
What changed? The former meaning was as bestowed by the Creator, the second is as bestowed by the State. That is indeed interesting. As the world has become less Godly, Jefferson's Bill of Rights has become more and more restricted. We see this inclination towards more laws in our Second and Fourth Amendments in the form of Gun Control and TSA's unlawful searches of citizens without Probable Cause. We have also seen this in modern times, but it is worth noting that the debate of how freedoms should be restricted or not has always been present. Noah Webster, author of the 1828 Webster's dictionary didn't believe that the Bill of Rights was prudent as it would allow for crimes to be committed under the color of “Rights”. He and Jefferson debated this publicly and even wrote letters back and forth on the topic.
In Jefferson's Letter to Noah Webster in December of 1790, Jefferson stated:
“It had become an universal and almost uncontroverted position in the several states, that the purposes of society do not require a surrender of all our rights to our ordinary governors: that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly incroaching on, if submitted to them. That there are also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shewn a disposition to weaken and remove. Of the first kind for instance is freedom of religion: of the second, trial by jury, Habeas corpus laws, free presses.”
https://founders.archives.gov/documents/Jefferson/01-18-02-0091
We can find the more modern sensibilities, in a perverse way, in Webster's reply:
“That both policy and right require that the delegation should at all times possess the whole power of the state for the purpose of preventing all possible wrong and obtaining all possible good—That every right claimed by a citizen of a free government is liable to vary with circumstances; except what rest wholly on the moral law; that therefore every right, created by political law, should be always subject to be modified by the power that created it, viz. the will of the state, which is always the will of the delegation.—That in short, the election and organization of the body which is to express the will of the state, is the only power which the people and a convention can exercise, and the only power which an ordinary legislature can not. ”https://founders.archives.gov/documents/Jefferson/01-18-02-0106
Jefferson also wrote this to David Humpreys in a 1789 letter:
"There are rights which it is useless to surrender to the government and which governments have yet always been found to invade. These are the rights of thinking and publishing our thoughts by speaking or writing; the right of free commerce; the right of personal freedom. There are instruments for administering the government so peculiarly trustworthy that we should never leave the legislature at liberty to change them. The new Constitution has secured these in the executive and legislative department, but not in the judiciary. It should have established trials by the people themselves, that is to say, by jury. There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army." --Thomas Jefferson to David Humphreys, 1789. ME 7:323
Remember that both of these men were arguing from the Judeo-Christian Framework and had both agreed upon morality. The debate was concerning the long term good of the nation. Webster saw the need to enforce morality via the government. Jefferson, however, feared the tyranny that they had just escaped returning in the form of a hard theocracy, and wished to institute a government governed by Godly men, in a sort of soft Theocracy. We can see that the worst fears of both men have been realized.
We can also see the playing out of this debate in the form of Supreme Court Decisions over the years. Not all speech is protected.
In Roth vs the United States, Roth was charged with indecency for his “A Quarterly for the Fancy-Free” publication, a porno magazine subscription. The case was decided against Roth in that the material was harmful if in the hands of children.
The dissenting opinion of Justice Earl Warren in the Roth vs United States case was interesting. His concern was “the broad language used here may eventually be applied to the arts and sciences and freedom of communication generally.” This was stated in spite of Justice Warren's assent that pornography was not constitutionally protected.
So what then, is Freedom of Speech limited? If so, how and why? Let us look at another case.
In Hess vs Indiana, Gregory Hess screamed in public that the protest would “take the *bleeping* streets later.” The Supreme Court overturned a call to violence charge in that there was no definite time laid out in Hess's call to violence.
So what is the defining line? What is protected speech? In a legal sense, the simplest and most true to an originalist interpretation of the Bill of Rights is likely the following: “You have full personal autonomy, until you commit an offense against another individual and are found guilty of a crime under common law.”
Now, as a Christian, we should understand this principle well. What our Founding Fathers in America created was a very similar legal system to the moral system that our Heavenly Father has instituted: You have the freedom to make moral decisions, but lack the freedom to decide the consequences for your sins. Actions, not thoughts, expressed or spoken are what warrant punishment. We need to hold that standard clearly for ourselves and for our nation so that we can be a witness and testimony to the world.
https://founders.archives.gov/documents/Jefferson/01-18-02-0091
https://founders.archives.gov/documents/Jefferson/01-18-02-0106
https://www.youtube.com/watch?v=39kc29lCQ94
https://languagemuseum.org/noah-webster-an-american-dictionary-for-an-american-english/
https://www.history.com/topics/us-presidents/thomas-jefferson