“Without freedom of thought there can be no such thing as wisdom and no such thing as liberty without freedom of speech.” – Benjamin Franklin.
Recent calls for “regulation” of speech that certain people find offensive confuse the right to speak with a license to speak. License is the “permission granted by competent authority to engage in a business or occupation or in an activity otherwise unlawful.” A right, in contrast, is the inalienable authority to do something, or to refuse to do it, which exists by virtue of one’s humanity. According to Justice William Brennan: “The Framers of the Bill of Rights did not purport to ‘create’ rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be existing.”
New Hampshire has a strong tradition of protecting freedoms of speech and thought dating back to the formation of our Constitution. The most obvious provision for speech in our Bill of Rights is Article 22, which declares that “Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved.” Rather than an engine for inciting violence, the framers of our State Constitution viewed the right to speak as an essential protection against external threats. The true evil was the crown, not the delicate sensibilities of colonial New Hampshire residents.
An undoubtedly related provision of the Constitution is found at Article 4, which poetically affirms the right of Conscience: “Among the natural rights, some are, in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the Rights of Conscience.”
It is easy to gloss over the importance of this provision, which, in some measure makes our State Constitution more complete than the federal version. While the U.S. Constitution guarantees freedom of speech, freedom of press, and freedom of assembly, among other things, it is the New Hampshire Constitution that strikes at the heart of the matter. Quite simply, the right to speak is emblematic of the right to think, and the right to think also means not being compelled to do something that goes against one’s conscience. U.S. Supreme Court jurisprudence has recognized the connection between thought and speech, generally favoring an expanded interpretation of the things that qualify as “speech,” because they demonstrate an exercise of one’s conscience. We in New Hampshire should be proud of our recognition of this right, and of the fact that we thought of it first.
The framers even saw fit to include a Right of Revolution in Article 10 to guard against the evil of political subjugation, declaring that when all “means of redress. . .” (including civilized discourse) were found to be ineffectual, “the people may, and of right ought to reform the old, or establish a new government.” In a free society, the time for speaking may indeed reach an end – it ends when the time for revolution begins.
To bring this into the present day, it is worth mentioning that on Jan. 11, Fosters published an opinion piece by Laurenne Ramsdell entitled: “UNH Professor: Shooting part of growing incivility.” The article failed to provide a single fact to support Professor Bruce Mallory’s outrageous claim that the tone of public discourse was responsible for Jared Loughner’s actions, leaving readers to ponder why it did not appear on the editorial page. More importantly, it shamelessly advanced a point of view, which, if taken to its logical end, represents a very dangerous political position – that society’s failure to be an “ideal civil society” was somehow responsible for the random acts of an insane gunman.
The reality is that there may be a myriad of “causes” for the Arizona shooting, but the proponents of limiting speech find only one, the flaws of society’s capacity for civil discourse. And to be clear, the majority of speech that is called “uncivilized” by these same stewards of public discussion are conservative viewpoints. In some cases, though not in the Jan. 11 article/editorial, conservative legislators and talk show hosts are even being called out by name.
The hard truth for progressives is that if we take our Constitutions seriously, then we should not tarnish the sacrifices made by Americans in defense of the principles they contain. “Civil discourse” does not mean agreeable positions. In our system of laws, offensive speech is protected. The line between speech that should be tolerated and that which should be suppressed is thin, but it is there nonetheless. In the advice of Supreme Court Justice Oliver Wendell Holmes:
[W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
Those advocating for censorship of certain viewpoints, tones, or political beliefs would do well to remember that there is rarely much that is common about common decency. Political speech is a basic right under our system of government, but one could argue that political disagreement is even more essential. Vitriol and rhetoric are a part of the political process, like it or not, and since no person has a monopoly on the truth, it will never be possible to draw the line between an illegitimate opinion and a legitimate one.
But all of the focus on “civility” misses the point completely, at least from a Constitutional perspective. Our founders knew that a person’s right to exercise their conscience was the most important verification that they were truly free. After all, you may deprive me of my right to speak, and I will still be free, but when you deprive me of my right to think there is nothing left. Whether discourse is “civil” is not determined by the opinion of the listener, it is determined by whether society is civilized enough to recognize the speaker’s right to say something distasteful.
