[MUSIC] I am Jeffrey Rosen and I'm here at the National Constitution Center in front of the First Amendment tablet. Let's talk about why the founders believed that Congress can make no law abridging the freedom of speech, press, religion, assembly, and petition. Well, they had four reasons which have been developed by the Supreme Court over the course of American history. First, freedom of conscience is an unalienable right because people have the right and the duty to think for themselves. Second, free speech makes our representatives accountable to we, the people. Third, free speech is necessary for the discovery of truth and the rejection of falsehood. Fourth free speech allows the public discussion necessary for democratic self-government. Remarkably, all four of these reasons are clearly and brilliantly expressed in two texts that we're going to talk about today. Thomas Jefferson's original draft of his Virginia bill for establishing religious freedom from 1777 and Justice Brandeis's opinion in Whitney v. California from 1927. Let's begin with Jefferson's bill, which he drafted after returning to Virginia from Philadelphia when he wrote the Declaration of Independence. Jefferson considered his religious freedom bill among the three most important accomplishments of his life, important enough to be inscribed on his tombstone, along with his having drafted the Declaration of Independence and founded the University of Virginia. Under Virginia's colonial religious code at the time, all dissenters were required to support and attend the established Anglican Church. Presbyterians and Baptists could be arrested for practicing their faith or preaching the gospel. Quakers and Jews and other dissenters could be denied the freedom to marry or to have custody of their own children. Jefferson proposed not only to disestablish the Anglican church and remove all criminal punishments for dissent, but also to prohibit all compelled support for religion of any kind. He concluded that because freedom of conscience is a fundamental right, government can regulate overt acts against peace and good order, but it lacks all power to intrude into the field of opinion. Let's review each of Jefferson's four reasons. First, freedom of conscience is an unalienable right because people have the right and the duty to think for themselves. Jefferson said, "Well aware that the opinions and beliefs of men depend not on their own will, but follow involuntarily the evidence proposed to their minds. God have created the mind free and manifested his Supreme will that free it shall remain by making it altogether insusceptible of restraint." In other words, Jefferson argued, freedom of conscience is by definition, an unalienable right. One can't be alienated or surrendered to government. Because our opinions are the involuntary result of the evidence contemplated by our reasoning minds. We can't give presidents or priests, or teachers or fellow citizens the power to think for us even if we wanted to, because we are endowed by our Creator with the capacity to reason, and therefore, we can't help thinking for ourselves. Second, free speech makes our representatives accountable to we people. In his religious freedom bill, Jefferson emphasized that it's crucial in a democracy for citizens to be able to criticize public officials. Because legislators and religious leaders, being themselves fallible and uninspired, as Jefferson said, will always try to impose their own opinions and modes of thinking on others. Jefferson's prediction came to a head in the controversy over the Alien and Sedition Acts in 1798 when the Federalist Congress made it a crime to criticize the federalist president, John Adams, but not the Republican vice president, Thomas Jefferson. Third, free speech is necessary for the discovery of truth and the rejection of falsehood. Jefferson concludes his religious freedom bill with words expressing his unshakable faith in the power of reason, and reasoned deliberation, to distinguish truth from error. The words that he used are inscribed in marble on the Jefferson Memorial in Washington. "[T]ruth is great and will prevail if left to herself, she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate." Fourth, free speech allows the public discussion necessary for democratic self-government. Jefferson believed that in a democracy, all citizens have an equal right and responsibility to exercise their rights of conscience. As he put it in the Virginia bill, "proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he professors are announces this or that religious opinion is depriving him in injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right." In 1927, in the greatest free speech opinion of the 20th century, Justice Louis Brandeis distilled Jefferson's four reasons for protecting free speech into a few inspiring paragraphs. The case was called Whitney v. California. Here we see the first Jewish justice insisting on the right of Anita Whitney, a white woman, to make a speech defending anti-lynching laws, which were designed to protect the life and liberty of African Americans. Whitney made her speech at a communist party meeting. She was convicted under a California law that made it a crime to associate with organizations that advocated doctrines that might lead people to break the law. In 1926, Brandeis had read Jefferson's original draft of the Virginia bill for establishing religious freedom. In his Whitney opinion, the following year, Brandeis adopted and refined Jefferson's standard for ensuring that government could only punish overt acts of law-breaking and not the expression of dangerous opinions. As Brandeis put it in Whitney, "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced and there must be reasonable ground to believe that the danger apprehended is imminent." Brandeis's inspiring test for protecting free speech, namely, government can only ban speech if it's intended to and likely to cause imminent and serious injury, was based on his Jeffersonian faith in the power of what he called "free and fearless reasoning to expose falsehood Republic discussion as Brandeis put it, "If there be time to expose through discussion the falsehoods and fallacies to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression." Brandeis's test was finally adopted by the Supreme Court in 1969 and the Brandenburg case. As a result, the U.S Supreme Court and the United States of America now protect free speech more vigorously than any other country in the world. Brandeis went on in Whitney to summarize Jefferson's four reasons for why government can't make laws designed to restrict free speech. In the process, Brandeis achieved a constitutional poetry. I'm now going to read Brandeis's central passage, listen closely for each of Jefferson's, four reasons. Here we go, "Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty." That's a quotation from Pericles' funeral oration. "They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth. That without free speech and assembly, discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine, that the greatest threat to freedom is an inert people, that public discussion is a political duty and that this should be a fundamental principle of the American government." Well, that's the most inspiring paragraph on free speech ever written. But as that paragraph shows, all four of Jefferson and Brandeis's reasons for protecting free speech are based in an overwhelming faith in reason itself. The First Amendment is based on that faith, that people will take time to develop their faculties of reason through education and public discussion. That public discussion will be a check on arbitrary and partisan demagogues, rather than enabling them. That more speech will lead to the spread of more truth rather than more falsehood and that people will in fact take time for discussion and deliberation rather than making impulsive decisions. All four of these founding phase are being challenged in a polarized age of social media which is based on a business model of enrage and engage. Twitter and Facebook and other platforms have accelerated public discourse to warp speed, creating virtual versions of the mob. Inflammatory posts based on passion, travel farther and faster than arguments based on reason. Rather than encouraging deliberation, mass media can undermine it by creating filter bubbles and echo chambers in which citizens see only those opinions they already embrace. For these reasons, some are calling for America's free speech tradition to be reconsidered or amended. Here at the National Constitution Center in front of the First Amendment tablet, we are proud to preserve, protect, and defend the faith in reasoned deliberation that is the foundation of the freedom of conscience protected by the First Amendment, which encompasses the five freedoms of speech, press, religion, petition, and assembly. As America's leading platform for non-partisan constitutional education and debate, we bring together Americans of different perspectives to cultivate their faculties of reason. Only by listening to the best arguments on all sides of the constitutional questions at the center of American life can you exercise your right and duty to make up your own mind. Like Jefferson and Brandeis, and Frederick Douglass, and Ruth Bader Ginsburg, and all of these great free speech heroes of American history, we are dedicated to what Jefferson called the illimitable freedom of the human mind. For here, as Jefferson said, we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it. [MUSIC]
