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On December 15, 1791, the First Amendment to the U.S. Constitution was adopted as part of the Bill of Rights (the first ten amendments to the Constitution).
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As with many other passages of the Constitution, the authors did not provide specific definitions of what “freedom of speech” meant to them, and so U.S. courts have been called on to help in providing guidelines for when speech is protected and when it is not, though even these issues are often far from clear.
In general, though, the U.S. has guaranteed its people the right to express their opinions (in all forms, from words to images and other media) without governmental interference or regulation, within reasonable limits. (The writers of the first amendment were surely influenced by the ancient Greek concept of parrhesia, or “open speaking,” the practice of speaking the truth, often to power; see, for instance, Foucault’s series of 1983 lectures at UC Berkeley on “truth-telling as a role.”) These limits, as defined over the years by courts, generally do not protect speech that is characterized by threats of serious harm, libel or slander, obscenities, and plagiarism.
How the first amendment affects students in public schools was tested in 1965 when students at an Iowa high school wore black armbands in protest of the Vietnam War. They were suspended by the school for providing a harmful “distraction,” but the case was decided in favor of the students and their freedom of expression was upheld.
The last few years have seen serious issues of freedom of speech on many college campuses across the country: should students’ right to freedom of speech allow them to shout down or chase out or disinvite controversial speakers whose views they disagree with? Should that right protect online speech for or against Israelis and/or Hamas as the battle in Gaza rages? Should a governor be able to ban the presence of certain groups on school grounds because their speech will offend others? I’m fairly certain that questions like these have been a focus on your own campus, and may be so even as I write this.
I recently read an op-ed piece in the New York Times that spoke to our current situation and provided another gloss on “free” speech. In “What ‘Snowflakes’ Get Right about Free Speech,” Ulrich Baer argues that attempts to deny the right to speak to some “should be understood as an attempt to ensure the conditions of free speech for a greater group of people, rather than censorship.” In Baer’s analysis, limiting the free speech of some can be acceptable if it will allow other marginalized members of a community a chance to take part in public discourse. Baer’s argument is surely subject to question, especially since it would often be very hard to tell which groups are more marginalized than others, or which groups might be more or less harmed by the “free” speech in question.
Reading about the history of freedom of speech, about the most significant court cases regarding the issue, and about the turmoil that the right to speak (or not) is causing on our campuses today makes me think that this is surely a “teacherly moment” in which we can engage students in thinking—thinking rhetorically—about what the first amendment means today and, moreover, what they think it potentially should mean for the future. This kind of rhetorical approach would help students step back, at least for a time, from the us vs. them, right vs. wrong stances that are so emotionally appealing and consider the current controversy in light of history, of court rulings, and of other precedents. It might help them to look at alternative perspectives, to consider them carefully, and to try to figure out just where they stand on who has the right to “free” speech. An analysis like this calls for small group work, and for very careful preparation. But the possibility for greater understanding—at the very least of the deep complexity of the issue of free speech—seems to me worth the effort.
Image from Wikimedia Commons
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