Lingamfelter: Freely Spoken

By Scott Lingamfelter

In these days of turmoil and political upheaval—to say nothing of political correctness—free speech in America is under attack not witnessed since our Revolution. Setting aside our political biases momentarily, most people across the political spectrum can find a point of agreement on this proposition. Free speech is fundamental to American freedom.

However, political forces in America have increased their efforts to limit speech they disagree with or find offensive. This despite the fact that there is no inherent right “not to be offended.” Indeed, free speech anticipates the presence of crude, disrespectful, discourteous, impertinent, and insolent people who spew bitter or vile words or proffer ideas that are highly offensive. Unfortunately, gone are the days where people can find comfort in the childhood chant “sticks and stones may break my bones, but words will never hurt me.” There was much wisdom in that aphorism for those seeking to weather the offenses of a mouth filled with insults. Not so much now. We live in times where profound offense can be pried from even the most obscure reference in the most unintended utterance. The misplaced double entendre is now as perilous as a well-placed double-edged sword.

Yet limiting speech is not new, indeed it is sustained in law. A person is not entitled to shout “fire” in a crowded theater. In 1919, the Supreme Court decided in Schenck v. United States that a defendant’s speech in opposition to the draft during World War I was not protected free speech under the First Amendment given the urgency of conflict. Fifty years later in Brandenburg v. Ohio the Court limited banned speech to that which was likely to incite imminent lawless action, like a riot, thereby introducing the “imminent lawless action” test. That test contemplates (1) one’s intent to speak, (2) the imminence of lawlessness, and (3) the likelihood of that lawlessness occurring. It remains in place today and has yet to be significantly challenged. Interestingly, the Brandenburg decision had the effect of overturning the conviction of a vile person adjudicated in Ohio for advocating violence to further racism. While the Brandenburg decision itself did not support racism, it did create a legal standard used for evaluating attempts to punish inflammatory speech.

So what are we to take from all of this? First, we live in a nation that has clearly articulated the right to free speech in the First Amendment to the U.S. Constitution and situated it among our rights to practice our faith, have a free press, and assemble peacefully to petition our government.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

All of those rights are vital to our freedom. But the right to free speech is particularly important among them. Indeed, the right to free speech is pivotal to what our Founders knew was fundamental to a free society, namely the freedom to distill the truth of a matter. That can only be done in the context of debate where speech is not limited to certain words and ideas. The essence of distilled truth occurs in the marketplace of ideas, even using speech we find objectionable, even grossly offensive.

Second, it would be a wonderful thing if every young person would learn from the beginning of life that there are few substitutes for good grace and manners. Rudeness, hatred, and expressing speech and ideas that are abhorrent to a free society is disgusting. But if such things find a way into our debates—which some surely will in a free society—the antidote is more, not less free speech to counter objectional expressions and get to the truth.

Finally, the argument for more speech to counter words and ideas considered offensive is itself an offensive notion to some in the “woke” culture, as well as those committed to the violence, arson, and destruction that began last spring across the nation. An intolerance of free speech will assuredly lead us to the same tyranny our Founders opposed when they spoke freely to a British monarch who would suppress their dissent with armed force.

Consider our Declaration of Independence, that reads like a legal indictment of King George III.

“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”

The Declaration concluded by declaring the King a “tyrant” and “unfit” to rule. Aren’t you glad that was freely spoken by men ready to die for free speech? Memo to Congress; it’s time to rein in monopolistic social media tyrants.

Scott Lingamfelter is a graduate of VMI and the University of Virginia Law School, a retired U.S. Army Colonel after 28 years of service, and a former member of the Virginia House of Delegates from 2002-18.