If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.
— Justice William Brennan, Texas v. Johnson (1989)
What is the liberty of the press?
Who can give it any definition which would not leave the utmost latitude for evasion?
—Alexander Hamilton, The Federalist Papers, #84 (1788)
The First Amendment
“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.”
This is the First Amendment of the Constitution of the United States. It guarantees, among other things, freedom of speech. The clause that contains the words “freedom of speech” also adds “or of the press.” It recognizes that each in some measure is involved in the other.
The first clause protects the “free exercise” of religion, something that obviously includes the freedom to espouse ideas and doctrines that others in the community might find objectionable. The last clause says the people have the right to assemble peaceably and “to petition the Government for a redress of grievances.” These, too, have implications for both speaking and writing.
The impetus for the First Amendment came from the Anti-Federalists, patriots who looked at the proposed Constitution with grave, even violent, suspicion. These men, generally writing out of a true concern for civil liberty, were afraid that the Constitution would create a tyrannical central government and threaten the very liberties they had fought a war to reassert and defend. Some of the Anti-Federalists were never reconciled to the new order, but others were willing to sign on if the Constitution was supplied with a bill of rights. In the end, the Federalist agreed.
Writing in a series of articles eventually collected as The Federalist (1788), Alexander Hamilton argued that a bill of rights was not only unnecessary, but also quite possibly dangerous. He argued, for instance, that the “freedom of the press” was incapable of any clear definition.
Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all, as intimated upon another occasion, must we seek for the only solid basis of all our rights (#84).
Hamilton distrusted what he saw as meaningless platitudes. He thought, rather, that the meaning and defense of “the freedom of the press” must rest with the character and conscience of the people and their elected officials. By extension, the same would be true for that broader category: freedom of speech.
Liberty in France
Meanwhile, across the Atlantic, France’s National Assembly was pounding out its own manifesto concerning human rights: The Declaration of the Rights of Man and of the Citizen (1789). With regard to freedom of speech, the Declaration said this:
No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.
The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.
The revolutionary government wanted to glory in freedom, but it inevitably had to recognize that the words “freedom of speech” needed context and qualification. Public order required it. Therefore the State would have to set limits on this hypothetical freedom. But the National Assembly, beyond a general appeal to natural rights and a respect for the liberty of others, did not give specific standards or guidelines for the laws that might properly define and limit freedom of speech.
The Source of Liberty
Freedom needs definition … it needs boundaries. Absolute freedom, true anarchy, is simply chaos, and necessarily ends in the triumph and tyranny of the man with the most guns — or a controlling share in the media. True freedom requires order, but an order that respects the image of God in man, that does not coerce private opinion, and that does not require a man to sin against his own conscience. In other words, true freedom requires the boundaries of law.
But the question is: Which law? Or whose law? By what standard should we or can we measure out and limit true freedom? Which law-order, if any, is truly compatible with liberty?
Once again we return to the issue of ontology or “being.” If reality is at bottom undifferentiated spirit or impersonal atomistic matter, then any talk of right or of rights is meaningless. What is, is right. There is no transcendent standard by which right and wrong may be measured, no absolute beyond existence by which we might legitimately say, “This is right, and this is wrong.” And in the absence of any applicable moral absolutes, the concept of human rights is dead in the water. We may speak of “rights” granted by society or the State, but this is pure chimera. Such “rights” are nothing but bare permission for the moment and can be taken away as easily as they were granted. No harm, no foul. What is … is “right.”
Only on the basis of a transcendent Absolute can there be any real talk of right and wrong or of human rights. Liberty, to be anything more than bare, momentary permission from the existing social order, must be rooted in an Absolute that stands outside of and beyond all human social order and all created reality. Liberty is meaningful only on the presupposition of the personal Creator God, who both transcends creation and is immanent within it, and who has spoken to man in words he can understand. A meaningful concept of liberty presupposes the Triune God of Scripture.
What Do the Scriptures Say?
But it isn’t enough to say that liberty comes from God. We must actually search God’s Word to see how His law provides for and limits freedom – in this case, freedom of speech. We must especially note the difference God’s law makes in this area between sins and crimes. Not every sin is a crime. Not every lie or bit of gossip or angry exclamation is a crime as far as Scripture is concerned. By principle and case law, Scripture tells us what limits civil law ought to place on speech and related forms of communication.