A prominent lawyer and former member of the Obama White House recently penned a piece on free speech, and suggested that the debate on free speech was, to use his words, “Broken.”

He takes issue with the Supreme Court’s commitment to “the marketplace of ideas,” and with Justice Brandeis’s comment that the remedy for falsehood and fallacies is “more speech, not enforced silence.”

He argues that countering false arguments – he gives his own list – with the truth is usually less than effective because “counter speech is ineffective. Lies lodge in the human mind.” He suggests that this “psychological reality raises serious questions about current constitutional understandings and also about the current practices of social media platforms… in trying to stop falsehoods.”

He closes his argument with this statement:

“No one should assume the role of a Minister of Truth. But informed by psychological research, some social media providers have improved their policies for dealing with lies about COVID-19-sometimes by taking them down.

That’s strong medicine, usually to be avoided. But when there’s a serious threat to health or safety, or to democracy itself, it’s just what the doctor ordered.”

Is it? Before we tighten the screw on free speech, let’s consider just what it is that we are trying to do here.

To do that, consider what has been written down as to the basic purpose of the United States, it’s found in the Declaration of Independence and in the Preamble to the Constitution.

The Declaration states:

> We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
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> The Constitution identifies the goals:
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> …in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”
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> That’s a pretty straightforward list. And yes, those words have been expanded over the last 200 years, and concepts and needs and wants and privileges that might have left the Founding Fathers scratching their heads have suddenly materialized inside the Constitution. But the central idea remains the same – government as a servant of the people, and the goals remains the same – protect our rights – provided by the Creator, and provide justice.
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> And what is the first step protect those rights?
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> One of the foremost advocates of free speech, and the necessity to protect that right, was Alexander Meiklejohn, philosopher and one time president of Amherst College.
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> The First Amendment Encyclopedia says of Meiklejohn:
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> The core of Meiklejohn’s understanding of the First Amendment is that a commitment to self-governance is the bedrock principle that justifies freedom of speech.
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> As he wrote in “The First Amendment Is an Absolute” (Supreme Court Review [1961]), Meiklejohn believed that the “revolutionary intent of the First Amendment” was to “deny to all subordinate agencies,” such as Congress or the president, any “authority to abridge the freedom of the electoral power of the people.”
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> In “What Does the First Amendment Mean” (University of Chicago Law Review 20 [Spring 1953]), he explained further that the First Amendment guarantees the political freedom of the people of the United States by ensuring that they are presented with open discussions of all issues, even from unpopular viewpoints. The value in free speech, therefore, is that it produces informed voters.
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> In short, an informed electorate can only exist if there is free speech, and is therefore necessary, critical, for the survival of the nation itself as liberal democracy (liberal in the classic sense). This right, therefore, supersedes all other concerns.
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> Democracy, as the word is often used, and perhaps as the writer of the oped used it, is an ill-defined thing, some sort of vague notion that people vote for their government, but one in which safety takes precedence over freedom and rights. Ignoring for the day that we (and most of the people on the planet) live in some form of republic, not in democracies, the fact remains that a democracy separated from fundamental rights is pretty thin gruel.
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> The United States is a democracy, but so is North Korea, Communist China, and Iran. Nazi Germany had elections. So did the Soviet Union. The generic process means little, particularly if there are other forces at work that can bend the process to achieve a desired result, as was recently trumpeted in Time Magazine, of which I am sure we will see more.
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> As with everything in life, the goals count, not the plan, and, for the most part, not the process (presuming the process remains both legal and moral).
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> The nation’s goals are clearly spelled out. Our rights – which precede government, they are not provided by government – are protected so that we might debate, express ideas, to challenge those in positions of power; all with the aim of achieving those national goals.
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> Defending those rights, even at great cost, is therefore right and necessary. The strong medicine the lawyer suggests above is just the kind that kills the patient; let’s avoid it.
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