Mr. Chairman, I deeply appreciate your courtesy in asking me to join with you in an attempt to define the meaning of the words, "Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances"
Whatever those words may mean they go directly to the heart of our American plan of government. If we can understand them, we can know what, as a self-governing nation, we are trying to be and to do. Insofar as we do not understand them we are in grave danger of blocking our own prejudices, of denying our own beliefs. It may clarify my own part in our conference if I tell you at once my opinion concerning this much debated subject.
The First Amendment seems to me to be a very uncompromising statement: it admits of no exceptions. It tells us that the Congress and, by implication, all other agencies of the government, are denied any authority whatever to limit the political freedom of the citizens of this nation. It declares that with respect to political belief, political discussion, political advocacy, political planning, our citizens are a sovereign and the Congress is their subordinate agent.
Mr. Chairman, in view of your courtesy to me I hope that you will not find me discourteous to you when I thus suggest that the Congress of which you are members is a subordinate branch of the government of the United States. In saying this I am simply repeating in less passionate words what was said by the writers of the Federalist Papers when, a century and three quarters ago, they explained the meaning of the proposed Constitution to a body politic which seemed very reluctant to adopt it. Over and over again the writers of those papers declared that the Constitutional Convention had given to the people adequate protection against a much feared tyranny of the legislature.
It is chiefly the legislature, the Federalist insists, which threatens to usurp the governing powers of the people. In words which unfortunately have some relevance today it declared that it is against the enterprising ambition of this department that the people ought to indulge their jealousy and exhaust all their precautions. And further, the hesitant people were assured that the convention, having recognized this danger, had devised adequate protections against it. The representatives, it was provided, would be elected by vote of the people. Elections would be for terms brief enough to ensure active and continuous, popular control. The legislature would have no lawmaking authority other than those limited powers specifically delegated to it. A general legislative power to act for the security and welfare of the nation was denied on the ground that it would destroy the basic postulant of popular self-government on which the Constitution rests.
As the Federalist thus describes with insight and accuracy the constitutional defenses of the freedom of the people against legislative invasion, it is not speaking of that freedom as an individual right which is bestowed upon the citizens by action of the legislature. Nor is the principle of the freedom of speech derived from a law of nature, or of reason in the abstract. As it stands in the Constitution, it is an expression of the basic American political agreement that in the last resort the people of the United States shall govern themselves. To find its meaning, therefore, we must dig down to the very foundations of the self-governing process. And what we shall there find is the fact that when men govern themselves it is they, and no one else, who must pass judgment upon public policies.
That means that in our popular discussions unwise ideas must have a hearing as well as wise ones, dangerous ideas as well as safe, un-American as well as American. Just so far as at any point the citizens who are to decide issues are denied acquaintance with information, or opinion, or doubt, or disbelief, or criticism which is relevant to those issues—just so far the result must be ill-considered, ill-balanced planning for the general good. It is that mutilation of the thinking process of the community against which the First Amendment is directed. That provision neither
the legislative, nor the executive, nor the judiciary, nor all of them acting together has authority to nullify. We Americans have decided, together, to be free.
Mr. Chairman, I have now stated for your consideration the thesis that our American political freedom is not on any ground whatever subject to abridgment by the representatives of the people.
May I next try to answer two arguments which are commonly brought against that thesis, in the courts and in the wider circle of popular discussion. The first objection rests upon the supposition that freedom of speech may on occasion threaten the security of the nation, and when these two legitimate national interests are in conflict, the government, it is said, must strike a balance between them. That means that the First Amendment must at times yield ground. Our political freedom may be abridged in order that the national order and safety may be secured. In the courts of the United States, many diverse opinions have asserted that balancing doctrine. One of these, often quoted, reads as follows: "To preserve its independence and give security against foreign aggression and encroachment is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated.”
That doctrine tells us that the government of the United States has unlimited authority to provide for the security of the nation as it may seem necessary and wise. It tells us, therefore, that constitutionally the government which has created the defenses of political freedom may break down those defenses. We, the people, who have enacted the First Amendment may, by agreed-upon procedure, modify or annul that amendment. And since we are, as a government, a sovereign nation, I do not see how any of these assertions can be doubted or denied. We Americans as a body politic may destroy or limit our freedom whenever we choose. But what bearing has that statement upon the authority of Congress to interfere with the provisions of the First Amendment? Congress is not the government—it is only one of four branches, to each of which the people have denied specific, unlimited powers as well as delegated such powers. And in the case before us, the words "Congress shall make no law abridging the freedom of speech" gives plain evidence that so far as Congress is concerned the power to limit our political freedom has been explicitly denied.
... Our doctrine of political freedom is not a visionary abstraction; it is a belief which is based in long and bitter experience which is thought out by shrewd intelligence. It is the sober conviction that in a society pledged to self-government it is never true that in the long run the security of the nation is endangered by the freedom of the people. Whatever may be the immediate gains and losses, the dangers to our safety arising from political suppression are always greater than the dangers to that safety arising from political freedom. Suppression is always foolish. Freedom is always wise. That is the faith, the experimental faith by which we Americans have undertaken to live. If we, the citizens of today, cannot shake ourselves free from the hysteria which blinds us to that faith there is little hope for peace and security either at home or abroad. Second, the rewriting of the First Amendment which authorizes the legislature to balance security against freedom denies not merely some minor phase of the amendment, but its essential purpose and meaning. Whenever in our Western civilization, inquisitors have sought to justify their acts of suppression they have given plausibility to their claims only by appealing to the necessity of guarding the public safety. It is therefore that appeal which the First Amendment intended, and intends, to outlaw. Speaking to the legislature it says: when times of danger come upon the nation you will be strongly tempted and urged by popular pressures to resort to practices of suppression such as those allowed by societies unlike our own in which men do not govern themselves. You are hereby forbidden to do so. This nation of ours intends to be free. Congress shall make no law abridging our political freedom.
... The purpose of the Constitution is, as we all know, to define and allocate powers for the governing of the nation. To that end three separate governing agencies are set up and to each of them are delegated such specific powers as are needed for doing its part of the work. Now that program rests upon a clear distinction between the political bodies—the legislative, executive, and judicial, to which powers are delegated. It presupposes, on the one hand, a supreme governing agency to which originally all authority belongs. It specifies, on the other hand, subordinate agencies to which partial delegations of authority are made. What then is the working relation between the supreme agency and its subordinates? Only as we answer that question shall we find the positive meaning of the First Amendment.
First of all then, what is the supreme governing agency of this nation? In its opening statement the Constitution answers that question. "We, the people of the United States, " it declares, "do ordain and establish this Constitution.... " Those are the revolutionary words which define the freedom which is guaranteed by the First Amendment. They mark off our government from every form of despotic polity. The legal powers of the people of the United States are not granted to them by someone else —by kings, or barons, or priests; by legislators, or executives, or judges. All political authority, whether delegated or not, belongs constitutionally to us. If anyone else has political authority we are lending it to him. We, the people, are supreme in our own right. We are governed, directly or indirectly, only by ourselves.
... What are the intellectual processes by which free men govern a nation and which therefore must be protected from any external interference? They seem to be of three kinds. First, as we try to make up our minds on issues which affect the general welfare, we commonly, though not commonly enough, read the printed records of the thinking and believing which other men have done in relation to those issues. Those records are found in books, ancient and modern, in magazines of fact and of opinion, in documents and newspapers, in works of art of many kinds. All this vast array of idea and fact, of science and fiction, of information and argument, the voter may find ready to help him in making up his mind. Second, we electors do our thinking, not only by individual reading and reflection, but also in the active associations of public or private discussion. We think together as well as apart, hold meetings in order that this or that set of ideas may prevail, in order that that measure, or this, may be defeated. Third, when election day finally comes, the voter, having presumably made up his mind, must now express it by his ballot. Behind the canvas curtain, alone and independent, he renders his decision. He acts as sovereign, one of the governors of his country. However slack may be our practice, that, in theory, is our freedom.
What then, as seen against this constitutional background, is the purpose of the First Amendment as it stands guard over our freedom? That purpose is to see to it that in none of these three activities of judging shall the voter be robbed by action of other subordinate branches of the government, of the responsibility, the power, the authority, which are his under the Constitution. What shall he read? What he, himself, decides to read. With whom shall he associate in political advocacy? With those with whom he chooses to associate. Whom shall he oppose? Those with whom he disagrees. Shall any branch of the government attempt to control his opinions or his vote, to drive him by duress or intimidation into believing or voting this way or that? To do so is to violate the Constitution at its very source. We, the people of the United States, are self-governing—this is what our freedom means.
Mr. Chairman, this interpretation of the First Amendment which I have tried to give is, of necessity, very abstract. May I therefore give some more specific examples of its meaning at this point or that? First, in the field of public discussion when citizens and their fellow thinkers peaceably assemble to listen to a speaker, whether he be American or foreign, conservative or radical, safe or dangerous, the First Amendment is not in the first instance concerned with the right of the speaker to say this or that; it is concerned with the authority of the hearers to meet together to discuss, and to hear discussed by speakers of their own choice, whatever they may deem worthy of their consideration. Second, the same freedom from attempts at duress is guaranteed to every citizen as he makes up his mind, chooses his party, and finally casts his vote. During that process no governing body may use force upon him, may try to drive him or lure him toward | this decision or that, or away from this decision or that. For that I reason no subordinate agency of the government has authority to ask, under compulsion to answer, what a citizen's political commitments are. The question, Are you a Republican? or Are you a Communist? when accompanied by the threat of harmful or degrading consequences if the answer is refused, or if the answer is this rather than that, is an intolerable invasion of the reserve powers of the governing people. The freedom thus protected does not rest upon the Fifth Amendment right of one who is governed to avoid self-incrimination; it expresses the constitutional authority, the legal power of one who governs to make up his own mind without fear or favor, with the independence and freedom in which self-government exists.
Third, for the same reason, our First Amendment freedom forbids that any citizen be required under threat of penalty to take an oath or make an affirmation as to beliefs which he holds or rejects. Every citizen, it is true, may be required, and should be required, to pledge loyalty and to practice loyalty to the nation. He must agree to support the Constitution but he may never be required to believe in the Constitution. His loyalty may never be tested on grounds of adherence to, or rejection of, any belief. Loyalty does not imply conformity of opinion. Every citizen of the United States has constitutional authority to approve or to condemn any laws enacted by the legislature, any actions taken by the executive, any decisions rendered by the judiciary, any principles established by the Constitution. All these enactments, which, as men who are governed, we must obey, are subject to our approval or disapproval as we govern. With respect to all of them, we who are free men are sovereign. We are the people. We govern the United States.
... Conflicting views may be expressed, must be expressed, not because they are valid but because they are relevant. If they are responsibly entertained by anyone, we the voters need to hear them. When a question of policy is before the house, free men choose to meet it, not with their eyes shut but with their eyes open.
To be afraid of ideas, of any idea, is to be unfit for self-government. Any such suppression of ideas about the common good the First Amendment condemns with its absolute disapproval. The freedom of ideas shall not be abridged.