Søren Kierkegaard once quipped, “People demand freedom of speech as a compensation for the freedom of thought which they seldom use.”
The Danish philosopher and theologian provides us with an accurate backdrop for the terrifying events that unfolded on January 6 in Washington D.C.
Insurrectionists, inspired by former President Donald J. Trump’s false claims of a stolen, fraudulent election and his fiery speech on Jan. 6, broke into the U.S. Capitol, killing police officer Brian Sicknick.
Before the former president’s term ended, the U.S. House of Representatives impeached the president for a second time, stating, “Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.”
This week, at the former president’s second impeachment trial, the term “freedom of speech” is being cited frequently by his lawyers and supporters as they argue for his acquittal by the U.S. Senate.
Trump’s lawyers and supporters argue that the former president cannot be held accountable for his speech because it is constitutionally protected under the First Amendment.
While freedom of speech is a sacred right for all U.S. citizens, Trump’s argument fails at the point of honest assessment and application.
Without getting lost in the woods of legal jargon, the U.S. Supreme Court has ruled numerous times that freedom of speech can be limited for several reasons:
- Inciting actions that would harm others (Schenck v. United States, 249 U.S. 47, 1919).
- Making or distributing obscene materials (Roth v. United States, 354 U.S. 476, 1957).
- Burning draft cards as an anti-war protest (United States v. O’Brien, 391 U.S. 367, 1968).
The court recognizes that words are extremely important in a free society. Words define. Words inspire. Words incite.
While freedom of speech is a sacred right, it is not absolute. As former First Lady Eleanor Roosevelt pointed out, “Freedom makes a huge requirement of every human being. With freedom comes responsibility.”
Freedom is not the absence of responsibility. On the contrary, freedom relies on both personal and social responsibility.
As individuals, we have the responsibility to utilize speech for the common good. As a just society, we have the responsibility to protect the rights of all citizens, especially when the tension of rights is present.
Over his 29 years on the bench, Supreme Court Justice Oliver Wendell Holmes (1841-1935) wrote extensively on freedom of speech.
Holmes engineered the “Clear and Present Danger” test to guide his opinions regarding freedom of speech. He wrote in Schenck v United States (1919), “Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Holmes’ “Clear and Present Danger” test was replaced in the 1950s by the “Preferred Position Doctrine.” This doctrine acknowledged a hierarchy of constitutional rights, noting that some freedoms garner preference over others.
Interpreting constitutional rights and freedoms through this lens ushered in a new understanding of individual liberties and civil rights.
For example, can a citizen use speech to discriminate against another citizen? Can a shopkeeper cite freedom of speech as a defense for hanging a “Whites Only” sign on their front door?
As one can witness, constitutional freedoms are not always absolute. There are instances when a “preferred position” of rights must intervene, establishing one right over another.
Therefore, as Trump’s lawyers and supporters argue that the former president’s speech is constitutionally protected, an important question begs to be asked: “Why is the former president’s right to free speech more important than Officer Brian Sicknick’s right to live?”
While freedom of speech is an essential component to a thriving democracy, when a citizen uses speech to incite violence against another citizen, then the latter’s right to live outweighs the former’s right to speak.
More so, citizens must begin to realize that freedom of speech does not divorce a person from responsibility. Actions, even when they are merely words, have consequences.
We would all do well to follow Kierkegaard’s advice to think before speaking, but we would also do well to follow the urging of James 3:5-6 and tame our tongues.
CEO of Good Faith Media.