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By Fred Obee 

Constitution tested by silos of belief, spread of lies | Guest View


Last updated 6/15/2022 at 4:15pm

Much is lamentable in our political discourse. It can be senselessly coarse, wildly inaccurate, insulting and cruel. But it also can be inspirational and move us to courageously confront the intractable and corrupt.

While calls to limit our right to speak freely are always with us, over centuries, we have concluded that while abuses do occur, it is better to suffer them than to limit people who just might have something valuable to say.

This idea was first was given its due in colonial America when a printer named John Peter Zenger was hauled in the front of a magistrate in 1735 to answer for libels that appeared in his newspaper. In those days, simply criticizing the government was considered libelous, and Zenger was caught dead to rights.

Anonymous writers had indeed accused the government of being corrupt and unfair.

The prosecution was delighted, then, when Andrew Hamilton, a leading colonial attorney, admitted Zenger had published the criticisms. But then he did what no attorney in the colonies had ever done. He turned to the jury and argued that no person should be convicted of libel if the words he spoke were the truth.

"The question before the court and you, gentlemen of the jury, is not of small or private concern," Hamilton said. "It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty."

The jury decided in favor of Zenger, and although it would take decades before this idea was adopted as a matter of law, looking back, the Zenger decision is acknowledged as "the germ of American freedom," the morning star of that liberty which subsequently revolutionized America.

For the next two centuries we built on the idea that free speech was central to our national character, not just in libel cases, but in speech generally, but we continued to struggle with the idea that even hateful speech should be protected.

It wasn't until 1919, that Supreme Court Justice Oliver Wendell Holmes squarely addressed our discomfort in an opinion that today is widely heralded as one of the most important intellectual turning points in our nation's history.

"The best test of truth," Holmes wrote, "is the power of the thought to get itself accepted in the competition of the market.

"That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge.

"While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

So far, we have marked the centuries balancing our right of free speech against all other rights, and we have fashioned some practical limits. Our belief has been, that only in the bright light of constant scrutiny, can the truth begin to emerge.

Embracing that belief today requires some real courage, when untruths and misinformation fly at the speed of light. One wonders if Holmes today would amend his analysis, or whether he, or any other justice, would support curbs on speech, judging them to be an "imminent threat" to the country.


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