Justice Brandeis’s concurring opinion in Whitney v. California encapsulates the four traditional rationales for protecting freedom of speech:
“Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” Whitney, 274 U.S. 357, 375 (1927).
Justice Brandeis’s quote above captures what have been thought to be the four traditional constitutional values that are advanced by protecting freedom of speech: promoting democratic self-governance by ensuring the greatest amount of information and the broadest range of views are permitted in the public domain; promoting the search for truth through the operation of the “marketplace of ideas” rather than government regulation; advancing individual autonomy by protecting our ability to express ideas—whether political, artistic, ideological, etc.—without fear of punishment; providing a “safety valve” for individuals to express their dissatisfaction or anger by speech rather than turning to other means because their speech is suppressed.
A fifth rationale that I [Lyles] want you to consider is promoting societal tolerance—i.e., freedom of speech requires people to learn to tolerate ideas that they may not like, which builds habits of mind that in turn lead to greater tolerance of people whom they may not like.
All of these rationales are subject to elaboration, examination, and criticism, and we will discuss them throughout the second half of PolS 354.