Until recently, you might have thought Americans only knew the second amendment but it turns out that we know the first one, too. Good luck finding anyone who can name the third but we all know the fifth, so as they say, 3 out of 10, isn’t too bad. The problem isn't so much that we don't know the Constitution or its amendments. It's that we don't appreciate what the founding fathers intended when they wrote our government's framework and therefore instead of using our freedoms in worthwhile ways, we pervert and squander them to suit our own selfish desires. Freedom of speech is a fantastic gift, especially for the artist but all too often, we use it as justification for saying pretty much anything. Is that what our founding fathers had in mind?
The US Constitution didn't invent the concept of free speech but because it's embedded in the Constitution as one of our inalienable rights, the world tends to look in our direction, to see how this experiment is progressing. And recently, things don't look that good. Even before this latest drama of government attacks on comedians, the question of what constitutes free speech, who can say what, has been hotly debated. And for writers already reeling under what pronouns can or must be used, or struggling with accusations of cultural appropriation or whether their book needs trigger warnings, or worse yet, having AI stealing their words altogether, we are now facing increasing censorship, particularly, in the U.S, the home of free speech. If James Madison, the author of the Bill of Rights, were alive today, I can't help but wonder, what he would have to say about the current state of affairs?
But perhaps to answer that question, we need to go back to the beginning. Not all the way back because that would take us back to the ancient Greeks. While they are responsible for turning debate into an art form, they're also known for ostracising individuals for no other reason than they didn’t like them. No, I think a better place to start any discussion about free speech is with the Enlightenment and Voltaire’s declaration that even though he didn’t like what you had to say, he was willing to die for your right to say it. And it wasn't only Voltaire and his thoughts on free speech. There were radical views on how society might be restructured. Montesquieu for his concept of a separation of powers, and John Locke for his theories on natural rights. Even Mary Wollstonecraft’s A Vindication of the Rights of Woman that suggested women required the same education and advantages of men. We need to consider their influences because of the impact on the formation of America's governmental framework. Well, maybe not all but 3 out of 4, as they say, isn't too bad. But back to the US Constitution.
Between 1783, when the Treaty of Paris brought an end to the American Revolution and 1786, life in America was in turmoil. There were repercussions aimed at the loyalists. The new government had a huge war debt but because the central government was weak, it didn’t have the ability to raise taxes. Overseas markets collapsed and trade wars broke out between various states. Something had to be done.
Imagine the scene:
The date is May 25 1787 and delegates from all 13 states have arrived in Philadelphia to make a few minor changes to the Articles of Confederation and Perpetual Union. These Articles were cobbled together by the Continental Congress in 1777 and basically, it allowed each state to operate as an independant entity because that's what they were then. But now they are a country and must behave like one. The delegates who arrived that day in Philadelphia, expected to add their two cents worth to the existing document and then head back home. Alexander Hamilton and James Madison, two young men in their 30s, however, had something else in mind. They had this crazy idea that out of this chaos they could create something new. Something the philosopher's of the Enlightenment could only dream of. They could create a new form of government. Armed with writings of the Enlightenment’s great thinkers, they envisioned a government with a strong centralised government but one that still allowed each state to operate within its own framework. They easily sold the attendees on the concept of separation of powers. Executive, Legislative and Judicial. The devil in the detail was in determing how to calculate the number of representatives each state was allowed but after much debate, a compromise was reached. If you’re not familiar with the 3/5 compromise, google it. The most contentious issue, however, was the role of the President. Hamilton and Madison wanted a strong leader. Someone who would represent the nation as a whole, not an individual state. But should that power reside with one person or a committee? And how should they be chosen? How long should they serve? They finally decided on a single President who acted as both the head of state as well as the head of government. James Wilson was the main proponent of a strong executive which he felt was necessary given the turmoil of post war America. This unitary executive was to be elected by representatives sent to an Electoral College. Now that the hard questions had been sorted, someone had to write it all down. The bulk of this work fell to James Madison which brings us back to the original question of what he would think of today’s discourse on freedom of speech.
In regards to censorship, we know he was opposed to it. When John Adams was elected as President in 1796, the French Revolution was already four years in and had turned violent. America was divided on whether to support the French Revolutionaries. In the midst of this debate American merchant ships were attacked by the French. For more details read up on the XYZ Affair but the result was that Adams created an executive order called the Alien and Sedition Act.
Law 1 raised the residency period for foreigners to become citizens from 5 to 14 years. Law 2 gave the President the power to deport anyone he deemed to be “dangerous to the peace and the safety of the United States”. Law 3 gave the President the power to imprison or deport subjects of a hostile foreign nation during times of war. And Law 4 prohibited the publishing of any material that is “false, scandalous, and malicious” pertaining to the United States Government.
This was the President of the United States issuing a command that undermined the very first amendment. Madison didn't hold back. He categorized the Sedition Act as a violation of public trust. He wrote scathing attacks on Adams' fourth law saying that freedom of the press could be abused, but “some degree of abuse is inseparable from the proper use of every thing” and it is better to leave a few “noxious branches” than to cut away the “proper fruits.” The public agreed with Madison and in the elections of 1800, Adams was defeated by his old friend Thomas Jefferson.
That was a resounding victory for freedom of the press but did Madison have views on freedom of expression in the arts. It turns out that he did. He was philosophically opposed to restricting any form of speech or expression, including art, because to do so he concluded, would be to walk “a dangerous path that stifles truth, prevents social progress, and ultimately harms the political health of a republic by limiting the free exchange of diverse viewpoints.”
Of course, James Madison's freedom of speech did not extend to all forms of speech. Rather than list all the exceptions, he listed what was covered.
"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 other forms of speech were unprotected by the first amendment which means that local states could apply their own laws. These unprotected forms of speech include fraud, false advertising, defamation, child pornography, and inciting violence against the government. The last item, Madison might have argued in favour of protecting as well because in Federalist Paper 10, he argued that America’s great number of factions and diversity would be the very thing that avoided tyranny. “The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.” Madison had no way of knowing how social media would change the way the game was played. Still 4 out of 5 is, as they say, not too bad.
And that highlights both the strength and weakness of the first amendment. Madison’s words are deceptively simple but they leave a lot of room for interpretation and over the years there's been a lot of interpreting on behalf of the Supreme Court.
Take defamation, for example. It was assumed to be personal speech and therefore not protected by freedom of speech. Local and state laws determined what was libel or slander until that was used as a vehicle to stifle free speech. During the civil rights movement of the 50s and 60s, activists were targeted habitually with slander and libel cases that cost them both time and money. In effect, southern governments were allowing the legal system to be used to suppress criticism of racial segregation. The Times fought back, leading to a ruling by the Supreme Court – Times v Sullivan. The Supreme Court ruled:
“Against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Obscenity was also considered outside the protection of the first amendment. But then in 1957, Alfred Butler, sales manager for Pocket Books, was arrested for selling a copy of The Devil Rides Outside by John Howard Griffith to a police officer. According to Michigan censors the book, while fit for adults, was not fit for juveniles. Butler was found guilty and fined $100 but Butler, like the Times, decided to take the case to the Supreme Court. It was the first challenge to obscenity laws and how they infringed on the right to free speech. The ruling of the Supreme Court on Butler v Michigan was:
“The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig.”
While obscenity is still not considered protected by the first amendment the determination as to what is obscene is the determining factor. If a work of art is repressed but it is not deemed obscene, then the first amendment applies. Needless to say it is important for artists to know the boundaries. The 1973 Miller v California, sets the current standard. The legal definition, or Miller test, defines obscene material as any that lacks "serious literary, artistic, political, or scientific value". If it is not obscene, it is protected.
So where does cancel culture come into the debate? Because cancel culture, like the ancient Greek practice of ostracising, operates on a personal level; I don’t like what you said/did/are therefore I’m going to boycott/fire/give a bad review, it is not subject to first amendment rights and protections. On the other hand, there’s also no law against expressing an opinion unless it violates an existing law such as defamation, fraud, false advertising, inciting violence or fails the obscenity test. Does that mean that cancel culture has fallen through the cracks. Has the legal system fauled to keep up with the rimes? According to self-professed experts on the subject such as Aja Romano:
“To many people, this process of publicly calling for accountability, and boycotting if nothing else seems to work, has become an important tool of social justice — a way of combatting, through collective action, some of the huge power imbalances that often exist between public figures with far-reaching platforms and audiences, and the people and communities their words and actions may harm.”
Sounds a lot like Madison's argument in the Federalist paper no 10.
But what if it’s the government using cancel culture to suppress free speech? Last year the National Rifle Association took Maria Vullo to the Supreme Court, alleging that the superintendent of New York’s Department of Financial Services was coercing its regulated banks and insurance companies from dealing with the NRA. Justice Sonia Sotomayor, writing for the court, said: "Six decades ago, this Court held that a government entity's "threat of invoking legal sanctions and other means of coercion" against a third party "to achieve the suppression" of disfavored speech violates the First Amendment. Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” Which brings us to the question of whether Trump's tirade against late night talk show hosts violates the comedian's rights to free speech. But then one could also question whether Trump's spurious lawsuits against anyone who opposes him is a violation of their first amendment rights, but then I'm not a lawyer, simply a writer speculating on what freedom of speech really means.
And what would any discussion on free speech be if we didn’t look at hate speech. While there is no legal definition for hate speech in America, a number of countries have introduced laws that to some degree prohibit inciting violence to others. Where I live, in Australia, there are laws against maliciously using speech to offend, insult, humiliate or intimidate because of someone's race, religion or ethnicity. Having said that, 50 writers boycotted the Bendigo Writer’s Festival because of a code of conduct that prohibited writers from using “inflammatory, divisive or disrespectful" language and stipulated that they had to adhere to a controversial definition of antisemitism. When does civility over rule the freedom to express an opinion. Does protesting a foreign country's actions constitute hatred of its inhabitants? Such discussions may upset the peace, but as Madison pointed out, better to leave ‘a few noxious branches’.
So where does this leave the writer? We live in a time when freedom of expression, while protected by the first amendment, is nonetheless under pressure from cancel culture. It’s not a new dilemma. Orwell’s 1984 was censored for its political views, D. H. Lawrence’s Lady Chatterley’s Love for obscenity, J. D. Saliger’s Catcher In The Rye for it’s vulgarity. For some writers, fear will force them to withdraw their work or their publishers may decide to withdraw it for them. For others, subtlety will enrich their writing like Jonathan Swift’s Gulliver’s Travels. And then there are those that will write, regardless of whether their views are rejected or accepted by the mainstream. In some ways, the mere fact that there is a first amendment should inspire writer’s to pursue their own search for truth. And for that, I thank the young James Madison.