What is free speech, really?

Anonymous asked this question on 8/5/2000:

Could you explain the quote , "The First Amendment allows activities we hate" from Oliver Wendell Holmes. This would really help me. THANKYOU.

stevehaddock gave this response on 8/5/2000:

During British rule of the American colonies, free political speech as we now know it just didn't exist anywhere in the world. Although America had an active press and its own legislatures, what you could actually say was quite circumscribed. For example, to criticize the King, or even to question whether a King was necessary was treason, punishable by death.

In the years leading up to the American Revolution, American politicians started questioning the policies of the British parliament, a body they had no elected representative to but a body which had the power to pass laws applying to the American colonies. However, back in those days, the British had a lot of support in the American colonies, and the authorities had the solution to critics - arrest and, not uncommonly, execution. In fact, several signers of the Declaration of Independence were hunted down, tried and executed.

After the Colonies won the war, things didn't get much better. Instead of criticizing the British, Americans started criticizing their own state governments! Luckily, the U.S. constitution had strictly defined treason to exclude seditious words, and limited it to seditious acts. However, that didn't stop the states from coming down hard on speech they didn't like - shutting down newspapers and arresting critics were not unknown.

When the Constitutional Congress met in 1791 to draft the bill of rights, speech and religion were at the top of the list. The United States was full of people of different religions (whereas Britain was religiously homogenous by comparison). It was also full of people who disagreed violently, especially about one issue - slavery. Although slavery had been legal in all the Colonies before the war, the Northern colonies had banned it outright almost immediately. It only survived in the South. Both sides wanted to make sure that no-one could prevent them from stating their point of view on this, or any other issue.

Nowadays, the first amendment has been given broad application, but probably an application that would please the founding fathers. They realized, as did Oliver Wendell Holmes, that popular speech did not need protection. Only unpopular speech does, and that means, by definition, minority speech.

And again, if any issue brought more bad feelings to the fore than did any other in the early history of the United States, it was slavery. Both sides tried to use the power of the law to even restrict the power of the other to spread their ideas. Some Southern states even made being in possession of anti-slavery literature a death penalty offence!

Now, there are as many controversial issues as there were in the 1790s. Abortion, social services, racism, capital punishment and a dozen other issues make the blood boil on both sides of the debate. Let's face it, no matter which side you take on the debate, you are going to tick some people off! However, now the law realizes that, instead of arresting these people to keep the peace, those people have to be protected.

The best example I have ever seen of this in action was in Alabama in the 1960's. Governor George Wallace sent the police to break up a peaceful demonstration of blacks who would march through Alabama in support of civil rights for fear that whites would descend on the march and turn it violent. After Wallace turned back the marchers twice, president Johnson sent in the National Guard to protect the marchers as they marched.

So Holmes was right. The more despicable something seems to be, the more we have to protect the rights of people to say it. As the Alabama marchers proved, blacks did deserve the same political and civil rights as whites. It is now a comfort to us that now we come down harder on those who believe the reverse, and the KKK can now be arrested for holding a parade without a permit.

Anonymous rated this answer:

stevehaddock , thankyou for your answer , it is excellent , exactly what I was looking for.

JesseGordon responded:

... [Joining ACLU after Skokie]

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