Imagine if the Founding Fathers had conceived of liberty and freedom in contemporary terms, as problems to be managed, as sources of risk and harm. Imagine if Thomas Jefferson had penned the Declaration of Independence now, with the assertion that life, liberty and the pursuit of happiness were inalienable rights coupled with the get-out ‘except when said pursuit causes ill health’. Imagine if the American Constitution and, subsequently, the Bill of Rights had been drawn up today, complete with a set of sub-claused qualifications and caveats about offending people on grounds of race or religion. As for the First Amendment, so crystalline in its protection of free speech and press freedom, it just could not have been formulated today in the way that it was. ‘Congress’, it runs, ‘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.’
It doesn’t say ‘Congress shall make no law abridging freedom of speech except when a person uses threatening, abusive or insulting words likely to stir up hatred’. It doesn’t say ‘Congress shall make no law abridging freedom of speech except when it is necessary to protect health or morals, or the reputation or rights of others’. In short, it doesn’t contain caveats or exceptions. In the eyes of the Founding Fathers, people’s freedom to think what they choose to think, to believe what they choose to believe, and to say what they want to, was absolute - it brooked no compromise.
And why were there none of the exceptions, or the caveats, or the famous ‘limits’ to free speech that we’d no doubt find if a Bill of Rights was drawn up to today? Because, quite simply, freedom of thought and speech was seen as something too important to be bounded or qualified. It wasn’t that someone like Thomas Jefferson, or Tom Paine, or Voltaire, not to mention the many others who breathed in the radical, liberty-thirsting air of the time, were unaware of malicious speech, or abusive speech, or even just plain idiotic speech. Not everyone was dead smart during the Age of Enlightenment. It’s just that at that moment freedom, and free speech, was seen in its positive aspect, as something that benefitted humankind, a principle that prevented a government from slipping towards tyranny, that allowed the ‘better angels of our nature’ to flourish, that aided the pursuit of truth. See, for instance, Madison’s criticisms of the Alien and Sedition Acts in 1800 in which he drew on the First Amendment to defend the press’s right to be ‘seditious’, and made a case for ‘the intent to excite… unfavourable sentiments against those who administer the government’. For Madison, then, the freedom to lambast public figures, to excite others’ antagonism towards those figures – something that today would be classed as ‘incitement to hatred’ – was far more important than protecting those figures from emotional harm. The emphasis always fell on freedom of speech, and never its restriction.
Today, the Founding Fathers, and later the likes of John Stuart Mill, whose defence of free speech was, at points, equally as stalwart as his liberal predecessors across the pond, are implicitly assumed to have underestimated the harm in free speech. They were naive; they didn’t know what we know now; namely, that freedom of speech is never absolute, that there must be limits.
Just think of the number of people who proclaim their support for free speech before reeling off a list of reasons why its exercise must be limited. In the UK, for instance, the head of civil-liberties group Liberty, Shami Chakrabarti, is seemingly more concerned with the problems of free speech than its benefits – hence she once talked of ‘respecting freedom of conscience, thought and religion and free speech within such proportionate limits as are necessary to protect others’. Little wonder she ended up sat on the ‘panel of experts’ at the press-freedom-quashing Leveson Inquiry.