The First Amendment’s guarantee of freedom of speech and of the press is currently in danger. Some politicians are openly lamenting the constraints the Amendment puts on efforts to quell alleged “disinformation,” a few even proposing for criminal sanctions against Americans who transmit it. Against this backdrop, constitutional scholar and New York Post columnist Jonathan Turley’s The Indispensable Right comes as a breath of fresh air. Without denying the indisputable fact that social media platforms have magnified the spread of false information and lunatic conspiracy theories, Turley echoes the traditional, liberal view that the best, if not the only, remedy for it is the freedom to provide true information, without supervision from any “referees.” 

Unfortunately, in his noble effort to uphold the rights to freedom of speech and of the press, Turley sometimes goes too far in grounding those rights and establishing their limits. Central to his argument is a distinction between “functionalist” defenses of free speech, which value it as a means to other ends, notably the effective operation of democratic self-government, and what he terms its “autonomous” justification, as the core expression of our humanity. In accordance with this distinction, Turley applauds Supreme Court Justice Hugo Black’s “absolutist” reading of the First Amendment, according to which its prohibition on Congressional enactments “abridging” the freedom of speech must be understood to forbid any legal restrictions of speech whatsoever.

But Turley cites no text composed by the Founders, or from the liberal philosophers who inspired them, as a source for his functionalist versus autonomous distinction. And as a matter of law, one must note that a prohibition on abridging “the freedom of speech” is not literally the same as banning any legal limits on what anyone says or writes. 

As Alexander Hamilton explains in Federalist #84, denying the need to include a Bill of Rights in the Constitution, “the liberty of the press” (and by implication, that of speech) has no fixed meaning, but is a right whose practical import “must altogether depend on public opinion, and on the general spirit of the people and of the government.” In a note, Hamilton adds that it would be no more significant to include in the Constitution a declaration “that the liberty of the press ought not to be restrained” than one holding “that government ought to be free” or “that taxes ought not to be excessive.” 

And while James Madison eventually applauded the Bill of Rights (which he drafted) as a means to “expressly declare the great rights of Mankind secured” by the Constitution, he made no reference to the First Amendment prohibition being “absolute” in Black’s sense. Nor did he portray it as less “dispensable” than other fundamental human rights, such as the Lockean trinity of “life, liberty, and the pursuit of happiness” embodied in the Declaration of Independence, which might conceivably take priority over it. 

An additional complication lies in the fact that the First Amendment refers only to Congress, not even to the President—let alone to the powers of state governments. Only thanks to the Supreme Court’s “incorporating” the Amendment’s guarantee against the states through its reading of the Fourteenth Amendment’s “due process” clause did the actions of state and local governments become subject to it. That process began with the 1931 decision in Near v. Minnesota, which guaranteed the freedom of the press from prior restraint, while denying that such freedom was “absolute.” And a decade later, in Chaplinsky v. New Hampshire (a decision derided by Turley) the Court expressly excluded from the First Amendment’s protection “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words—those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” As the Court observed, “such utterances are not an essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” In other words, the Court adopted just the sort of “functionalist” rationale for freedom of speech that Turley finds deficient.

Starting in the late 1950s, the Court would indeed extend the First Amendment’s protection to such forms of “expression” as pornographic films, flag burning, and wearing a jacket emblazoned with the slogan “F-k the Draft” in a courthouse—an extension that Turley applauds. But his central concern is quite rightly with the freedom of political speech and of the press. Yet while he reasonably laments occasions in American history when the Federal government has arguably deviated from the core meaning of the Amendment (as in the Sedition Act enacted by Federalists under the Adams administration), one may question whether his judgment takes adequate account of the political circumstances that led to some of these enactments, which he dismisses as mere expressions of government “rage.”

Turley opens his book, somewhat curiously, by quoting Thomas Jefferson’s remark, in a 1787 letter to Abigail Adams, that he “like[d] a little rebellion now and then,” comparing it to “a storm in the atmosphere.” Indeed, Turley himself, in the second part of his book, “The Ages of Rage and the Crucible of Free Speech,” tends to blur the distinction between the freedom of speech he aims to defend and (relatively minor) acts of rebellion in American history, ranging from Shays’ Rebellion and the Whiskey Rebellion in the earliest years of the Republic to the radical student and racial uprisings of the 1960s, the Antifa and MAGA movements of 2020, and the “revival of American sedition” in the Capitol riot of January 6, 2021. In each of these cases, however, consideration of the circumstances at the time should make the government’s acts of “suppression” more understandable. 

Consider, for instance, the situation the US faced in the era of the Shays’ and Whiskey Rebellions. With some justification, Turley portrays the grievances that led to these uprisings sympathetically. But the fact remains that both uprisings were forcible challenges to government authority, only a few years after the achievement of independence from Great Britain. In effect, they violated in advance the maxim stated by Abraham Lincoln, at the start of the Civil War, that in a republic, there must be no appeal from ballots to bullets as a means of protesting alleged governmental injustices. 

In fact, Shays’ Rebellion was one of the major events leading to the Constitutional Convention of 1787, since it was taken to demonstrate the need for a more powerful central government to enforce the laws. Likewise, the Whiskey Rebellion occurred only six years after the Constitution was adopted. What security could ordinary citizens feel, and how deep would their attachment be, to that document, if the Federal government proved unable to prevent such uprisings? 

Turley’s denunciation of Abraham Lincoln’s “attacks on dissenting political views” as “the most extensive” ones of the nineteenth century displays the same insensitivity to political circumstances. For some reason, Turley finds Lincoln’s actions as Commander in Chief limiting Constitutional liberties as embodying the deepest “betrayal,” since “he was a man of great sensitivity to constitutional values” yet “abandoned them out of [military] necessity.” 

Lincoln was indeed a man of deep attachment to Constitutional procedures (for instance, issuing the Emancipation Proclamation only as a matter of military necessity and therefore limiting its geographic scope). But he understood, as Turley seems not to appreciate, that when forced to choose between preserving the Union amid its greatest crisis and obeying every jot and title of the Constitution’s text, his duty as President was to the former goal. (For instance, Lincoln was compelled to suspend the writ of habeas corpus in Maryland at the outset of the Civil War, rather than waiting for Congress to do so, lest the arrival of Federal troops by train to fight the Confederacy be blocked by Southern sympathizers, likely to be acquitted of any criminal charges by pro-slavery juries.)

In mocking the virtue-crusader Anthony Comstock for his post-Civil War attacks on “everything from contraception to masturbation to obscenity,” including writings containing “blasphemy” or espousing “sexual freedom,” Turley has an easy case. What is revealing, however, is the emphasis he places on “a critical schism in the free speech community” following the war between “’Civil’ libertarians, associated with groups such as the ACLU,” which (at the time) “emphasized narrower, functionalist views of free speech tied to democratic theories,” and “libertarian” groups like “the Free Speech League,” which “adopted a more sweeping protection” that would apply to issues like obscenity. While Turley clearly favors the latter doctrine, he supplies no Constitutional or moral ground for supporting it.

Returning to the political sphere, Turley makes a plausible case against the excesses of Woodrow Wilson’s “crackdown on political dissent” during World War I, but is much less persuasive in excoriating the warning of the distinguished Justice Robert Jackson, shortly after World War II, against the Court’s following “doctrinaire” First Amendment “logic,” lest the Bill of Rights be turned “into a suicide pact.” (Jackson, who had served on the international War Crimes Tribunal, made this observation in dissenting from a decision striking down an ordinance that criminalized speech tending to arouse public unrest—in this case, as applied to a vitriolic, racist speaker whose outrageous remarks had provoked an unruly crowd. While the ordinance may well have been unconstitutional, Jackson was acutely aware of the dangers such speech might pose to the preservation of free government.)

With greater justice, Turley punctures the reputation of the famed, supposedly libertarian justice Oliver Wendell Holmes Jr. by uncovering his nihilistic denial of the meaningfulness of the notion of natural rights. Yet Turley’s rejection of the “clear and present danger” test that Holmes devised for measuring whether a speech might Constitutionally be punished (subsequently replaced decades later in the Court’s more demanding Brandenburg decision) raises further questions of political prudence. Arguably, contrary to Turley, Chief Justice Fred Vinson was correct in upholding the Smith Act prohibition of the advocacy of the violent overthrow of the government in his 1951 Dennis decision, on the ground that the First Amendment “cannot mean that before the Government may act” against such advocacy (in this instance, by leaders of the Communist Party) “until the putsch is about to be executed, the plans have been laid, and the signal is awaited.” 

It is surely no answer to Vinson to maintain, as Turley does, that “any nation that cannot withstand the competition of ideas [including the idea of its violent overthrow] lacks the foundation and legitimacy to be sustained.” That assertion can be regarded only as a matter of blind faith—one which Justice Jackson might have pointed out, with a view to the “competition of ideas” that took place in Weimar Germany, cannot be justified by reason or experience. (And if, as Turley maintains, “governments have long defined certain speech as incitement” just because it opposes their policies, the answer to the abuse of that claim is indeed to be found at the ballot box.) In other words, a proper understanding of the First Amendment will entail clearly distinguishing between outright advocacy of illegal and violent or seditious actions, in circumstances that make it likely the advocacy will have practical effects, and the abuse of government’s authority to regulate communication that it calls “disinformation” (as in the Biden Administration’s endeavors to ban the news about Hunter Biden’s laptop, or challenges to its claims about the origins of COVID or the government’s response to it, from social media).

Similarly, when Turley seems to blame the excesses of the Weather Underground of the 1960s on the government’s supposed persecution of its members’ “rage rhetoric,” how would he have had the government address the 4,330 bombings, resulting in 43 deaths, committed by leftist radicals in a 15-month period in 1969–70: just wait for the bombs to explode? Surely, once the bombings began, the government had to possess the authority to intervene. In sum, contrary to Turley’s wish for a “bright line” to distinguish legally protected from genuinely incendiary and dangerous speech, it would appear that proper application of the First Amendment inevitably requires the exercise of prudential judgment.

Turley himself at least draws the line against excusing the violence perpetrated in the Antifa riots of 2020, calling Antifa “arguably the most anti-free speech movement in modern United States history” and noting its origins in prewar German communist and anarchist groups. He does not specify, however, that Antifa’s leaders should have been restrained from publicizing their antiliberal, antidemocratic ideas until they broke out into widespread violence. (Recall the warnings of Justices Jackson and Vinson.) At the same time, he persuasively warns of the danger of using charges of sedition, as some state officials attempted to do, to remove Donald Trump and his erstwhile Congressional supporters from the 2024 Presidential ballot, on account of the 2020 Capitol riot that Trump’s rhetoric helped inspire. 

One need not agree with Turley’s concluding call for “ending [all] Sedition and Speech Prosecutions” to applaud his exhortation in Part IV to restore free speech (threatened by “speech codes”) and his challenge to the imposition of “academic orthodoxy” in higher education, as well as his call to overturn “censorship by surrogate” authorized by the Biden administration to compel social media to ban what it considered “fake news” from reaching the public. In both his scholarly writing and his journalism, Turley has been a hero of the sort of free speech regarding public affairs that the authors of the Constitution intended. Despite the reservations I have expressed about parts of his argument, The Indispensable Right itself constitutes a practically indispensable contribution to our current debates.