More Reasoned Speech

Charlotte Whitney, or her attorneys, made the same mistake as many defendants who have been accused of a crime. She failed to bring up possible reasons that she shouldn’t have been charged, or convicted of a crime, when she had her trial. When the United States Supreme Court got her case, it was too late for them to make up facts that were probably true, but had never been established during the trial that ended in her conviction.

Miss Whitney was a political activist and in 1919 she found herself in the middle of an emotionally-laden debate and crackdown surround the evils of socialism and communism. California had passed a law prohibiting what it called criminal syndicalism. By associating with and helping to form the Communist Labor Party of California, Ms. Whitney violated the law and was convicted. The question that justified her appeal to the United States Supreme Court asked if the California law violated a federal question, specifically the rights that allow for freedom of speech and association.

Although fundamental rights enjoy the highest levels of protection, they are not absolute. The government, federal or state, can limit speech and association if the times demonstrate a probability of serious danger to the state. In 1919, the fears surrounding communism and its potential harm to democratic processes seemed real. But Ms. Whitney never even argued that California needed to prove some harm to the state or that her actions would not have resulted in harm. So in the end, she lost.

But her case resulted in a maxim based on the concurring opinion of Justice Louis Brandeis. People often say something like, the remedy for bad ideas is more speech not less. Brandeis’ actual quote was more nuanced. “If there be time to expose through discussion the falsehood 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. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.”

Brandeis starting premise requires time. He was balancing the government's ability to suppress speech in a time of an emergency with the strength of the right to free speech. If no emergency is present, the government has time to remedy falsehoods and fallacies. What most commentators miss when they add their 2 cents in our present day is that fallacies are not refuted by soundbites. They reduce arguments to slogans and philosophies become labels.

We live when opinions, including this one, are easily disseminated, read and then forgotten, unless they conform to previously held ideas.Let’s uphold the maxim encouraging more speech, but strive for more thoughtful speech, factual speech, and helpful speech. While others will continue to spew, we must remain in reason.