Book Review: Freedom, Virtue, and the First Amendment

berns_freedom_sized

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.

Advertisements

3 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.

      Liked by 1 person

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s