Book Review: Freedom, Virtue, and the First Amendment


In this book, Walter Berns critiques libertarian defenses of free speech. He thinks that libertarians defend free speech as an absolute value. In other words, keeping speech free for the libertarian is a more important priority than monitoring the content of that speech. By implication, then, smutty magazines deserve the same protection as the works of Shakespeare or the Bible. Berns thinks that this commitment to freedom goes too far. He thinks that virtue is also an important value. The law, for Berns, ought to shape the character of the citizenry. Having a citizenry composed of people with high virtue will allow the citizenry to reject would-be tyrants, autocrats, etc. There are times when the Supreme Court should prioritize virtue over the value of free speech. For instance, if speech is racist or subversive of our basic principles, some censorship would be alright. Berns thinks that the clear and present danger test, which permits infringement on speech only if it presents a clear and present danger to others, is too loose. Berns questions, for instance, the libertarians tolerance for the spread of communist ideas so long as the communists do not turn to a conspiratorial and revolutionary overthrow of our government. But, this is an odd judgment, since the final words of the Communist Manifesto are, “Workingmen of all countries, unite!” For Berns, it makes sense to exclude immoderate opinions like this, even if they are just ideas not yet put into practice. Libertarians, though, conceive of democracy as a mere process, and don’t care about the outcome produced. As long as people have the right to speak, libertarians approve, since freedom is an absolute value. But, merely respecting this process could lead to disaster.

I am torn as to how to judge Berns’s thesis. The question that arises is, how and who is to judge what counts as an immoderate opinion? If we give a group of elites the right to block certain kinds of speech from public discourse, this group might use this power to expand their influence. They would shut down views that opposed them. This is what happens in a totalitarian society. It’d be nice if we could guarantee that official censors would use their power solely to protect us, but this a rather naïve view of human nature. So, we have to put up with odious views like those of David Duke or Louis Farrakhan, since giving permission to officials would open the door to worse abuses.


5 thoughts on “Book Review: Freedom, Virtue, and the First Amendment

    1. I really struggled with his view. He thinks that there are more important things than free speech. He writes, for instance, “Technical constitutionality, in other words, must be tempered with justice.” An exemplary case is Dennis vs. United States, in which, Berns says, ideas, and not just words that incite dangerous action, were deemed illegal for the sake of the common good. Dennis was a communist leader in America, and he was condemned under the Smith act for teaching of the need to overthrow the U.S. government, not actually doing it.

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  1. If a government begins to censor some kind of speech, then what stops them from censoring other kinds of speech? Freedom of speech is granted to all people. I know that there are folks who say the most outlandish things, but that is the risk we as a society take, when we grant all people the freedom to speak their minds and ideas. If the concern is about preserving good values within the citizenry, it it is more fruitful to persuade the public to adopt good values, than to coerce them.


    1. I tend to agree with this. However, let me play devil’s advocate some. Let’s say there’s someone who’s denying the Holocaust. And I say that he’s not allowed to speak at my university or be involved in a public debate. My reasoning is that letting him take part in these public events will give him a legitimacy that he doesn’t deserve. Letting him speak makes it seem as though there is a legitimate other side to the issue.


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