On Free Speech

A US Senator with a century-old plea to not fight folly with madness

As longtime readers will know, this newsletter has no use for partisanship, and I generally avoid contemporary political debates. I was a newspaper columnist long ago and I found that steering well clear of the shrieking and motivated reasoning and general bug-eyed nuttiness of political debate did wonders for my mental health.

But sometimes, as I poke among the archives, investigating passions long since extinguished, I come across something that is so breathtakingly relevant to today that I have to break my rule. At least a little.

You know, I am sure, about the efforts of Ron DeSantis and many other Republicans to suppress certain ideas they don’t approve of in schools, libraries, and universities. Well, I came across something written by another Republican almost a century ago that speaks directly to those efforts. I won’t offer my own comments. I will simply give you a little background and share this man’s powerful words.

William Borah was a lawyer who became an influential senator from Idaho. A progressive in the heyday of progressivism, Borah was also a Republican at a time when “progressive Republican” was far from an oxymoron. Serving in the Senate from 1907 until his death in 1940, Borah became an Idaho legend.

On December 26, 1925, Borah published an essay in one of the most popular general-interest magazines of the inter-war period, Liberty. The headline summed it up nicely. “Free Speech,” reads the banner, “a protest against the practice of trying to control opinions by law.” (All emphases in what follows are mine.)

Borah, a committed opponent of war, started by attacking the Great War in Europe that had concluded seven years earlier.

War is the most prolific source of arbitrary power, and therefore the great enemy of free speech. Arbitrary power and free speech cannot live together. During the World War the provision of the Constitution, “Congress shall make no law abridging the freedom of speech or of the press,” was disregarded. The Congress and the courts refused to be bound by it.

To discuss the causes of the war as we now know them to have been, to discuss profiteering, or unwise bond issues, or taxation, or any subject of deep concern, if the discussion did not harmonize with the course of the government, was criminal, and men were punished for doing these things.

A moving picture producer who produced a scene of the American Revolution wherein British soldiers were dressed as Indians attacking the inhabitants, was imprisoned because the judge thought it might dampen our devotion to Great Britain.

….No more serious duty rests upon a people who would maintain free institutions than to see that the precedents of war are not carried over into the precedents of peace.

That opening is a canny strategy. By 1925, American opinion had swung hard against the war and it was now widely believed that American involvement had been a mistake. This is William Borah, trial lawyer, getting the jury on his side before he even starts his main argument.

The issue which has prompted Borah to write? The state of Tennessee had made it illegal to teach human evolution in the classroom. A high school teacher, John T. Scopes was charged with violating the law. What became known as the “Scopes monkey trial” became a national and international sensation.

Since the evolution trial in Tennessee, I have received many letters from people who seemed to believe it to be the duty of government to punish those who would question in any way the generally accepted teachings of Christianity.

One of these letters I answered. The author, apparently a gentleman of sincerity and culture, contended it was the duty of the government to make it an offense for men to speak against the inspiration of the Bible or the divinity of Christ. His reason was to the effect that the government must regard as its enemies those who would teach doctrines which would undermine the faith of the people and destroy the character of its youth. He said in substance: Why punish communists, who reject all religions and not punish those who would undermine and destroy the Christian religion?

To him, I replied as follows, in part:

“I do not take issue with you upon the worth of Christianity… but I wholly differ with you and your theory that in order to maintain it, it must be by law protected from criticism or assault — that in order to preserve the Christian belief, all inquiry must be shut off and all criticism denied.

“No more fatuous chimera ever infested the brain of man than that you can control opinions by law or direct beliefs by statute, and no more pernicious sentiment ever tormented the human heart than the barbarous desire to do so.

“The field of inquiry should remain open, and the right of debate must be regarded as a sacred right. I do not speak personally and therefore I trust not offensively when I say that whether in religion or in politics, touching things divine or things earthly, I look upon those who would deny others the right to urge and argue their proposition, however irksome or pernicious they may seem, as intellectual and moral cowards.

“The men who build up and maintain great religions and the men who build and maintain free governments are not afraid of the open arena. Hence the fathers, wisest and bravest the builders, said: ‘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 rights of the people peaceably to assemble and to petition the government for redress of grievances.’

“A religion or a government which cannot survive under the principle established in that great amendment, be assured, cannot long be preserved by denial of the principle.

Neither do I find fault with vigilance or criticize the devotion of those who watchfully resent things written or spoken in derogation of our government or which may be thought menacing to our institutions.

We have brought together here under one great system of government liberty and order, personal initiative and national power; and no higher proof of good citizenship can be found and zeal for the maintenance of the citizen the system. But free speech, free press, and the right to assemble peaceably were indispensable in the framing of the government and they are vital and indispensable to its perpetuity. Instead of free speech being a menace as we are disposed apparently to think at times, it is our only safeguard.

Our institutions must, and in my opinion, can stand the test of experience; they must, and in my opinion, can undergo without impairment the scrutiny, even the scourge, of every delusion or mad scheme which the restless and discontented may advance. But they cannot survive the denial of free speech, the destruction of a free press or the refusal to permit the people to assemble and present their views or grievances.

These principles, with the other guaranties of the Constitution, are indispensable to the maintenance of our government. We cannot expect in these times of ceaseless inquiry and intellectual turmoil, when the very foundations of human belief are assailed, that our form of government, our political creed, will escape in greed as to their worth and their efficiency. But we are not going to get excited and tear down our own structure and trample upon our own principles in the false belief that we are at once annihilating the enemy.

Now Borah expands his argument. It’s not merely the banning of anti-Christian views he is pushing back against. It is also the strange new doctrines that have sprouted up in revolutions around the world — notably communism, in firm control of the Soviet Union after the revolution of 1917 and years of civil war, and fascism, which came to power in Italy only three years earlier and has attracted a substantial following in America.

The fascist leaders denounce liberty as a delusion, a thing of the past, and deny all those who take issue with them the right of free speech or the press. The communists strike at the very foundation of orderly liberty, but in another way, though the fascists and communists reach the same goal ultimately, and they also deny free speech and free press to those who take issue with them.

We take issue with both, and yet there are those who would thoughtlessly accept their practices and adopt their methods and deny free speech and a free press to those who preach their doctrines.

The fascists excluded from their country a reputable representative of a great American newspaper because he was writing things deemed injurious to the government. We excluded from this country a communist because it was believed he would likely speak in behalf of his faith, thereby working injury to our government and people. In other words, both feared the people might be induced to accept beliefs inimical to existing order.

The communist denied entry by the United States was Shapurji Saklatvala, a British Member of Parliament.

I do not myself believe it necessary in defending American institutions and American principles to adopt the instruments of warfare of either the fascists or the communists. We shall fare better in the final results if we fight it out in the integrity of the principles which the framers incorporated in the Constitution.

Here, Borah gets to the crux of his argument. Free speech isn’t merely right. It’s effective — far more effective than censorship.

Responsibility alone will make people strong and resourceful. The surest safeguard of democracy in these times and new and strange doctrines is the average citizen who has come in contact with all political creeds and all political heresies and knows precisely what he is doing what and what he wants, and where he is going, or wants to go.

The most futile policy imaginable in these days of the telephone, telegraph newspapers, magazines, and the radio is the effort to bar out heresies and dangerous doctrines by some kind of censorship or by denying the citizen opportunity to hear and be heard.

…

I presume it is something in the nature of treason to so declare, but it is true, nevertheless, that agitation is the lifeblood of free institutions. Some look upon it as the source of revolution. It is its most certain preventive. Give the people the right to urge their views, let their views be ground out through the channels of public opinion and with that, they will be content. Take away this right and they will ultimately seek other remedies.

…

When you drive men from the public arena where debate is free, you send them to the cellar, where revolutions are born. ‘Better an uproar than a whisper.’

The greatest service once can render the cause of clean and efficient democracy in these days is to encourage fearless and independent discussion of all matters of public concern.

What can I add to this? Nothing. Except perhaps to note how wonderful it would be to see today a United States senator, of any party, write something this clear, elegant, principled and powerful.