How Free Should
Speech Be?

by Rev. Sam Trumbore
March 12th, 1995
Unitarian Universalist Fellowship of Charlotte County

Interpreting Free Speech is always a hot topic of debate but especially so oflate as the First Amendment has come under attack by the Left as well as theRight. Feminists want to ban pornography that advocates violence againstwomen. Hate speech is being restricted on college campuses. Right here in Charlotte County there is a move afoot to ban a book from the required readinglist for a class which includes references to homosexuality. People today are increasingly willing to sacrifice their rights to achieve and maintain order in our society. It behooves us in these repressive times to take a close look at how the First Amendment is being interpreted. Freedom of speech is a huge topic. Perhaps you've noticed that ministers in general and this minister in particular likes to pick broad sermon topics. I've been reading the book available from the Charlotte County Public Library by Rodney A. Smolla titled Free Speech in an Open Society [1].

This list comes from a partial list of all the areas the First Amendment is currently or in the past has been applied. The diversity of this list makes it hard to see how the same method of evaluating free speech could be applied to draft-card burning as well as to topless clubs or computer networks. Three simplistic solutions [3] have been and continue to be offered as a way to deal with the diversity of speech issues. The first is reading the U.S. constitution literally: It reads "The Congress shall make no law" which means no laws. This position, labeled Absolutism by Supreme Court watchers was championed most recently by Justice Hugo Black and William O. Douglas, "without any ifs, buts, or whereases." Simple as this approach is, it is problematic because this interpretation would mean no restrictions on copyright infringement, no ability to sue for libel, no protection against false advertising, no ability to restrict pornography in the evening paper, etc.

The second approach for interpreting the meaning of free speech is known as Historicism, or trying to figure out the original intent of the amendment. Many judges in deciding ambiguous cases strive to follow the intent of the law rather than the letter. There are many problems with this method of interpretation having to do with figuring out exactly was in the heads of the framers when they wrote those words. And then we have to talk about each man's thoughts who ratified this amendment. In some areas of free speech there is historical clarity such as political speech. But extended from there I wager there were many intentions in the minds of the framers and likely no consensus on exactly what freedom of speech meant. And even if there were, it is doubtful if it might extend directly to computer networks or cable TV regulations.

The third major approach used to approach freedom of speech is called "balancing." Balancing is seductively simple: in any conflict between free speech and other social values, the weight of the speech interest is balanced against the weight of the competing interest, and the conflict is resolved under a straightforward cost/benefit analysis. This approach is simple and offers a complete solution to free speech issues with no internal logical imperfections. This method of interpretation is used in most of the rest of the world where speech is treated like any other social interest like "driving, sexual practices, marriage, divorce, commercial transactions, ownership of property, service in the armed forces, etc." But is free speech just another social interest competing with other social interests or does it deserve more consideration than that? If it is calculated that Unitarian Universalist voices, being around 1% of the population are much less important than the Catholic or Southern Baptist voices, our voices and opinions could easily be squelched because the cost of allowing our Satan inspired corrupting ideas expressed far outweighs any benefit for the glorification of God in which we trust.

Allowing dissenting voices is often expensive. One of the costly regulations the Reagan administration was happy to discard was the expensive FCC regulation which allowed equal time for opposing views. Haven't heard that lately have you? Smolla observes:

The problem with balancing is that it greatly strengthens the ability of the majority to censor the minority. And since we as Unitarian Universalists are not a majority of anything, I'd say we should be cautious about advocating this approach. Because I have a quite limited time to hold forth on a topic on which numerous books have been written and complicated analysis done, I ask your forgiveness for making such short work of these methods of interpretation. In other settings they may be entirely appropriate and useful but for interpreting the Bill of Rights, the Supreme Court has steered another direction. Understanding how the Supreme Court interprets freedom of speech is interesting for more people than just professors, civil libertarians and aspiring lawyers. The rules they use have relevancy to the way we conduct ourselves as Unitarian Universalists speaking in this public forum. Justice is of primary importance to U.U.'s. Our desire to be fair to each other and offer a free pulpit to this community hangs in the balance.