Freedom of Speech

Freedom of Speech and Thought

by Paul M. Bessel, August 30, 1995

Basic Principles

Free speech and thought is a basic human yearning, as people want to be able to say what they wish, to express their ideas, desires, and feelings. It is easy to say that everyone should have freedom of speech, but it is just as easy to present reasons for restricting freedom of speech. Some people's speech is hateful, violent, and harmful to the harmony of others. It is often easy to convince a majority that certain things should not be allowed to be said. Most would agree that free speech does not include the right to talk about hiring someone to kill, or to endanger others by yelling "Fire" in a crowded theater just to cause panic. However, most people would also not support the idea that anyone who says something unpopular should be silenced, because that would mean free speech only includes the freedom to agree with the current majority. And most people would not support the idea that "harmony" is so important that people should not be permitted to express ideas designed to try to improve their society just because those ideas are disliked by the authorities. There are still questions about what constitutes "speech," what types of speech, if any, are not entitled to protection, and how other interests should be weighed when judging speech. This is a continuing debate that probably will never end.

Benefits of Freedom of Speech, and Limitations

There are many benefits of freedom of speech. The marketplace idea is a way of saying that the best way to search for advancements in our lives is to encourage people to think and talk as much as they want, with the best ideas eventually gaining the most support. The human dignity concept holds that freedom of speech and thought is an end itself, that the human spirit demands self-expression and each person should be able to say and think whatever he or she wishes even when that person does not intend to convince others, because all of us benefit whenever human dignity is increased. The self-government idea holds that freedom of speech is an indispensable tool in a democracy because it informs the people, helps mold majority decisions, restrains bad actions by leaders, and promotes stability by insuring that those who want to express ideas that are different from the majority can do so in a peaceful manner without fear of punishment.

There are questions about freedom of speech. Should it include the right to lie about another person, and if not, how should we decide when that is what is happening? Should free speech include the right to advocate physical harm, repression, or overthrow of the established order, and if not, who is to decide when certain types of speech fall in this category? If leaders make these decisions, they can say any criticism of them, even the most helpful, should be prohibited.

The First Amendment

The U.S. Constitution was written in 1787 and ratified by 1789, but many objected to the lack of a list of rights of the people. Those who wrote the Constitution initially said there was no need for such a list because almost all State constitutions contained one, but one of the first acts of the first Congress under the Constitution was to write a Bill of Rights. There was little doubt that the first item on this list would include the right of freedom of speech and thought, and this was included in what became the 1st Amendment: "Congress shall make no law ... abridging the freedom of speech." By 1791 this amendment and the others in the Bill of Rights became a part of the Constitution, but it only applied to the federal government. States could adopt laws that violated free speech if they wished.

The 14th Amendment was adopted after the Civil War to insure that the southern States would no longer try to prevent former slaves from enjoying all the rights of citizens. It says: "No state shall make or enforce any law which shall abridge the privileges ... of citizens ..., nor shall any State deprive any person of ... liberty ... without due process of law ...." The Supreme Court eventually started to "incorporate" the rights in the Bill of Rights into the 14th Amendment. The definition of "privileges of citizens" and "due process of law" came to include freedom of speech in 1925. Now, neither the federal nor state governments may infringe on freedom of speech, but what is "speech," and when are there to be limitations, are the subject of numerous Supreme Court cases.

Only governments are limited by the 1st and 14th Amendments. Private groups have the right to restrict freedom of speech of their members, if the members choose to permit that. The issue then becomes when, if ever, should a group such as Freemasonry threaten disciplinary action such as expulsion for members who merely say certain things that the leaders do not like.

Virginia Grand Lodge statements about this subject

Every Mason in Virginia is given a booklet, The Degree of Entered Apprentice, that provides an official explanation of Freemasonry in Virginia. That booklet includes the following:

"The basic idea of Freemasonry is that each man is to think things through for himself and to draw conclusions which bring him the greatest personal satisfaction." (pages 7-8)

The Virginia Methodical Digest contains the following: "Sec. 3.06. Criticisms, Animadversions or Reflections on the Acts of Any Officer May Not be Published in Any Journal. There shall be no publication by any Mason in any printed or public journal of any animadversion or reflection upon the official acts of any officer in Grand Lodge or in subordinate Lodge in this jurisdiction, or any criticism of such acts, either while said officer is in office or after his term has expired. The publishing of such criticisms, animadversions or reflections in the public press, whether in a journal professing to be Masonic or otherwise, is un-Masonic conduct, and shall be so treated by the Lodge to which the Brother so publishing belongs. Any just cause of complaint by any Brother against the acts of any officer in Grand Lodge or a subordinate Lodge, shall be made in accordance with Masonic usage and custom, and not in any public journal."

Questions for discussion

1. Masonic writers and leaders frequently say that Freemasonry supports freedom of thought and speech, even saying this is why Masons have been persecuted, but exactly what does this mean? In what ways has Freemasonry supported freedom of speech and thought in the past, and now?

2. To what extent should free speech prevail within Freemasonry? Should Masons be permitted to express their opinions about how to improve Lodges and Grand Lodges, or should they be required to only support what Grand Masters and Masters want said? If Masons should be permitted to express their opinions, but only within certain restrictions, what restrictions can be made that will still permit real freedom of speech rather than a phony freedom?

3. What is meant by harmony in Masonry? Is harmony promoted only when everyone is required to support what the leaders want to hear, or if there are differences, only those differences that the leaders will allow to be expressed? Does this promote or harm the purposes of Freemasonry?

4. Some people say that those who join Masonry know the limitations on freedom of speech and thought, and they should accept those limitations or get out. Is this best for Freemasonry, either in terms of its results or what it says about an organization that would have that attitude?

5. If there should be a balance between freedom of speech and harmony in Masonry, where should the line be drawn? No one would probably support a rule that said every Mason must say he supports everything the leaders of Lodges and Grand Lodges, and appendant bodies, say and do, but on the other hand no one would probably support a rule that said every Mason had the right to constantly bring the business of each Lodge to a stop by criticizing everything said and done by Masonic leaders. But should Masons be permitted, in a polite manner, to say they disagree with the policies of a Grand Master, to suggest alternate policies in a manner designed to attract support, to express their opinions about the competence or a Master or other Masonic leaders? If not, because of the need for harmony, does this allow certain people to impose their policies, which may be very bad ones, without allowing others to help correct them?

References

Free Speech in an Open Society, by Rodney A. Smolla, 1992.

The First Amendment Book, by Robert J. Wagman, 1991.

The First Freedom: The Tumultuous History of Free Speech in America, by Nat Hentoff, 1980.

A Worthy Tradition: Freedom of Speech in America, by Harry Kalven, Jr., 1988.

The Oxford Companion to the Supreme Court of the United States, 1992.

From ASHCROFT, ATTORNEY GENERAL, et al. v. FREE SPEECH COALITION et al., decided April 16, 2002

Congress may pass valid laws to protect children from abuse, and it has. E.g., 18 U.S.C. 2241, 2251. The prospect of crime, however, by itself does not justify laws suppressing protected speech. See Kingsley Intl Pictures Corp. v. Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959) (Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech) (internal quotation marks and citation omitted)). It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities. See FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978) ([T]he fact that society may find speech offensive is not a sufficient reason for suppressing it); see also Reno v. American Civil Liberties Union, 521 U.S. 844, 874 (1997) (In evaluating the free speech rights of adults, we have made it perfectly clear that [s]exual expression which is indecent but not obscene is protected by the First Amendment) (quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989); Carey v. Population Services Intl, 431 U.S. 678, 701 (1977) ([T]he fact that protected speech may be offensive to some does not justify its suppression).

As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children. See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring).

The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government cannot constitutionally premise legislation on the desirability of controlling a persons private thoughts. Stanley v. Georgia, 394 U.S. 557, 566 (1969). First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

To preserve these freedoms, and to protect speech for its own sake, the Courts First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct. See Kingsley Intl Pictures Corp., 360 U.S., at 689; see also Bartnicki v. Vopper, 532 U.S. 514, 529 (2001) (The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it). The government may not prohibit speech because it increases the chance an unlawful act will be committed at some indefinite future time. Hess v. Indiana, 414 U.S. 105, 108 (1973) (per curiam). The government may suppress speech for advocating the use of force or a violation of law only if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). There is here no attempt, incitement, solicitation, or conspiracy. The Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct.

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