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Rationales for Free Speech

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 domainpromoting 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.


8 Comments

  1. promoting societal tolerance is very important, and extremely subjective. We live in a white supremacist, patriarchal society and all of our institutions uphold these ideologies. So, how do you promote a just societal tolerance, when the current tolerance is already so defined by the centuries of racism and sexism? It’s an uphill battle for sure

  2. this idea of tolerance when it comes to language is kind in its initial function, but what happens when someone else’s language does not tolerate me? some forms of speech are silencing and completely untolerant of others, like bigotry, sexism, homophobia, and racism. Why should we have to tolerate what does not tolerate us?

  3. We need to tolerate each other, but what about when the other cross the limits? Liberty of expression is precious, but people do not regulate their word. It causes problems, then tolerance is lost.

  4. The fifth rationale is something that is quite interesting to think about. I think social tolerance is very important to be able to listen to both sides of the conversation. It is quite odd that we often paint those with different opinions than us as inherently evil but it is also understandable. I have an uncle who is very conservative, intolerant, Trump-voting and all, but he is really kind when politics are not involved. Therefore, it almost becomes this conflict where, politically, his views break my heart, but as a person, he is just my uncle. There is such a tug of war with how one should feel about a person, their political values, and the individual as a whole because oftentimes, one does not parallel the other.

  5. I agree that societal tolerance would be great because everyone would feel the need to understand the perspective of others but at the same time I can’t stop thinking about the idea that there are people that have ideas that are just not okay for example, racism. There are ideas that just should not be accepted even though tolerance is something good it can become something bad in the long run

  6. As am in considering the importance of free speech and the weight that it holds on our country I begin to realize that its admiration also brings fear. It seems that although this is a pillar for what we think “America” stands for there are immediate limits that come with its level of importance. Something that is in high demand and high value does not come naturally to all. What I am getting at is, there is a sprinkle of irony surrounded our natural born rights and their limitations.

  7. Promoting societal tolerance, that’s a tricky thing to add in such polarizing times. I think that this principle could become problematic when it comes to hate speech, especially since we’ve seen such a rise in neoconservative hate speech, are we meant to promote societal tolerance of that? It’s a tricky and double-edged sword and while I see the positives of the argument, I can surely see how it could become twisted to a negative.

  8. Sean NicholasOct 30, 2020
    This posting specifically mentions the four traditional constitutional values that are advanced by protecting freedom of speech. I feel like these are things that are still used and argued within today’s society, especially given the state of our current administration which has caused many if not more people to become politically active, sharing their opinions, and participating in political outings.

    Brittany TamayoOct 30, 2020
    There are four traditional values that support the rationale for having free speech, and a fifth that Lyles has brought up. I think that idea is interesting, it is definitely a benefit for all of society. Meanwhile, the other four traditional values I think are more catered towards individuals. I do think that it is important to promote societal tolerance.

    Brianna GuedesOct 30, 2020
    The four traditional constitutional values can also be seen as protecting what the majority does to the minority in terms of spreading misconception, lies, etc

    Rama IzarOct 29, 2020
    I think that the fifth value that Lyles mentions (promoting societal tolerance) is interesting. In some cases, yes, I can see how freedom of speech can promote societal tolerance. However, I think this country is extremely divided and that there is little societal tolerance. I think some of us can say that we are open-minded and can tolerate ideas we don’t like (like putting pineapple on pizza or something with minimal harm), however, with topics like “Do Black lives matter?,” I personally do not find that I can tolerate any answer besides “yes, of course they do.” Basically, what I am trying to say is that yes, in an ideal world where the biggest problems are about whether or not you should put pineapples on your pizza, freedom of speech should indeed promote societal tolerance. But, this is not the world we live in. The world we live in deals with racism, police brutality, accessible healthcare, climate change, etc. etc. etc. To many, these topics are non-negotiable and therefore, freedom of speech does not necessarily promote tolerating other views. My examples weren’t the best, but I hope this made sense.

    Kevin Lyles
    oh this is a great comment, thank you for sharing.

    Emma Whaley
    Emma WhaleyOct 22, 2020
    The concurring opinion of Whitney v California, in a sense, outlines and summarizes the four rationales for freedom of speech. The first, promoting democratic self-governance, ensures that information and a wide range of views to be permitted, which I could tell from the part where he states, “public discussion is a political duty.” The second rationale, to promote the search for the truth through operation of the marketplace of ideas, instead of government regulation, I think is very important because government regulation on ideas would lead to no difference and no diversity, which is an important aspect of this country, in my opinion. Even in the concurring opinion, he states how hazardous it would be to discourage thought, hope, and imagination. The third rationale, to advance the individual autonomy, by protecting our ability to express ideas without punishment is equally as important, especially as it relates to democracy and our government because individual ideas, opinions, and thoughts are important in a representative democracy. The last traditional rationale, providing a safety valve for individuals to express their dissatisfaction by speech rather than turning to other means because their speech is suppressed, is found in the context of the opinion where he discusses how the path to safety of a stable government lies in the opportunity for free discussion of these problems and grievances and offers a free “marketplace” to propose remedies and offer individual opinions on how to fix the issues. I think, in regard to Lyle’s fifth rationale, that it is equally as good of a reason, if not more, for the freedom of speech. America is a “melting pot”, meaning there are people of all ethnicities, races, religions, etc, so by having the freedom of speech, we begin to become more tolerant and even more welcoming of these people from different backgrounds than ourselves, allowing for a better social cohesion.

    Jyah VoraOct 18, 2020
    In the case Whitney v. California, Justice Brandeis gives her four rationales for free speech. They include: promoting democratic self governance, promoting the search for truth through the operation of the “marketplace of ideas,” advancing individual autonomy, and finally to provide a “safety valve.” Professor Lyles added a fifth rationale: promoting societal tolerance. I agree with Lyles’s rationale because I feel like most people won’t listen to what they don’t believe in or only align with people who are similar to themselves. I think it is important to diversify!

    Marissa ScavelliOct 24, 2019
    I like that Lyles included the fifth rationale to consider here (promoting social tolerance) because it’s super important in our society for people to tolerate ideas that they may not like. We live in a country where people come from all different backgrounds, cultures, etc. and of course not everyone will see eye to eye. But we are all entitled to our own opinions and ideas so we cannot attack someone else for their own beliefs, unless they entail a clear a present danger…. But overall I think promoting social tolerance is being open minded to others views even if you do not necessarily agree. If everyone was more open minded maybe we would have a more peaceful society. To add to that, I feel like a lot of our government officials do not practice societal tolerance.

    Philip Garza
    I totally agree. I think it’s really important for people to try and have a little societal tolerance instead of getting their feelings hurt just because they don’t agree with something.

    Kevin Lyles
    I am not sure if I agree with what I stated. I am conflicted. Hopefully we can discuss this in class. Perhaps after “freshly painted white walls”
    Oct 26, 2019•Delete

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