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Foundational Thoughts on Free Speech

    In the conversation about what free speech is and what it should look like in present-day America, it may be useful to look back at some of the Founders’ ideas of this concept. While authorial intent should never be the only method with which we understand a document such as the United States Constitution, especially given the fact that it was written by and for a much less diverse America and that many court cases have set precedents in interpreting these documents since then, it can still be integral to understanding the principles which can then be applied to the present.
    The freedom of speech afforded to U.S. citizens does not appear in the text of the U.S. Constitution; rather, it was added in the First Amendment, which also protects the freedoms of religion, press, assembly and petition. The reason these rights were not formally listed in the Constitution is because the writers of the draft which was eventually ratified understood the Constitution to be an enumeration of the powers of the government rather than a listing of the rights of citizens. In other words, the Constitution was in place to protect citizens by stating exactly which powers the government had, as well as putting in place checks and balances to prevent tyranny. It was not intended to tell citizens what freedoms they had.
    The Founders, especially those in the Federalist Party, believed that any powers not expressly given to the government in the Constitution were logically, then, rights which were held by the people. Alexander Hamilton, a Federalist, argued that listing the rights of citizens in the Constitution could even be dangerous. In Federalist 84, writing as Publius, Hamilton wrote, “I go further and affirm that bill of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous… For why declare that things shall not be done which there is no power to do?” To Hamilton, listing rights in the Constitution left room so that the document could be interpreting that the government was allowing those rights to its citizens, when in actuality, those rights were meant to be implicit in citizenship. Although those in favor of the amendment wanted these rights to be listed so that the rights would be protected, to others, it seemed instead to endanger those rights.
    Direct commentary on free speech was relatively scant until the twentieth century, during which time a series of court cases has worked to interpret what kinds of speech are and are not protected by the First Amendment. The Founders rarely wrote explicitly about this right, and when they did, they usually spoke more about the freedom of the press than speech. In these cases, First Amendment rights were always discussed as being in place for the protection of the citizens. The power of speech and the press are to be protected because these are rights with which people can claim agency against potential tyranny.
    As the concerns with these rights have historically been geared towards the idea of protection and empowerment, perhaps not everything about which people claim their First Amendment rights lives up to that idea. Is wearing a swastika or a Confederate flag an intelligent commentary on an abstract political idea or is it an attempt at resistance against perceived slights against oneself at the expense of the feelings of fellow citizens? Is the outspoken Facebook post effecting positive change, or is it a cry for attention by pointing out the faults of others? In light of the historical understandings of freedom of speech, if one is actually respectful and purposeful about employing their rights, perhaps invocation of this right should be reserved for those occasions when something positive is actually being achieved rather than any time one wants a quick defense of one’s every trifling statement.

The Voice of Protest

Freedom of Speech and Colin Kaepernick

Freedom of Speech and Colin Kaepernick