The First Amendment’s guarantee of freedom of speech and of the press is currently in danger. Some politicians are openly lamenting the constraints the Amendment puts on efforts to quell alleged “disinformation,” a few even proposing for criminal sanctions against Americans who transmit it. Against this backdrop, constitutional scholar and New York Post columnist Jonathan Turley’s The Indispensable Right comes as a breath of fresh air. Without denying the indisputable fact that social media platforms have magnified the spread of false information and lunatic conspiracy theories, Turley echoes the traditional, liberal view that the best, if not the only, remedy for it is the freedom to provide true information, without supervision from any “referees.”
Unfortunately, in his noble effort to uphold the rights to freedom of speech and of the press, Turley sometimes goes too far in grounding those rights and establishing their limits. Central to his argument is a distinction between “functionalist” defenses of free speech, which value it as a means to other ends, notably the effective operation of democratic self-government, and what he terms its “autonomous” justification, as the core expression of our humanity. In accordance with this distinction, Turley applauds Supreme Court Justice Hugo Black’s “absolutist” reading of the First Amendment, according to which its prohibition on Congressional enactments “abridging” the freedom of speech must be understood to forbid any legal restrictions of speech whatsoever.
But Turley cites no text composed by the Founders, or from the liberal philosophers who inspired them, as a source for his functionalist versus autonomous distinction. And as a matter of law, one must note that a prohibition on abridging “the freedom of speech” is not literally the same as banning any legal limits on what anyone says or writes.
As Alexander Hamilton explains in Federalist #84, denying the need to include a Bill of Rights in the Constitution, “the liberty of the press” (and by implication, that of speech) has no fixed meaning, but is a right whose practical import “must altogether depend on public opinion, and on the general spirit of the people and of the government.” In a note, Hamilton adds that it would be no more significant to include in the Constitution a declaration “that the liberty of the press ought not to be restrained” than one holding “that government ought to be free” or “that taxes ought not to be excessive.”
And while James Madison eventually applauded the Bill of Rights (which he drafted) as a means to “expressly declare the great rights of Mankind secured” by the Constitution, he made no reference to the First Amendment prohibition being “absolute” in Black’s sense. Nor did he portray it as less “dispensable” than other fundamental human rights, such as the Lockean trinity of “life, liberty, and the pursuit of happiness” embodied in the Declaration of Independence, which might conceivably take priority over it.