The First Amendment and other provisions within the Bill of Rights and the 14th Amendment are generally understood to protect individual rights and liberties against government interference and to enhance individual flourishing.
However, some of these First Amendment rights, most notably the rights of speech, press, petition, peaceable assembly and association — perhaps like the Fifth and Sixth Amendment protections for petit and grand juries, and provisions in constitutional amendments prohibiting racial or sexual discrimination in voting — are also essential to a democratic-republican form of government. They further the goal stated in the preamble to the U.S. Constitution of providing for a government by “We the People.”
‘The only effectual guardian of every other right’
As James Madison observed during congressional debates in 1794, because the people would be sovereign under the new government, “the censorial power is in the people over the government and not in the government over the people” (Bhagwat and Weinstein 2024, pp. 84).
In arguing against the Sedition Act of 1798, Madison said that the “right of freely examining public characters and measures, and of free communication among the people thereon. . . has ever been justly deemed, the only effectual guardian of every other right” (Purcell 2024).
A government that does not provide basic protections for the rights of freedom of expression arguably loses the right to call itself democratic (Bhagwat and Weinstein 2024, p. 86).
Self-government rationale:
People need access to information to make informed decisions
Such a democratic-republican (representative) government allows the people to discuss public issues to influence public opinion and vote on those who will represent them in government. Governments that provide for popular initiatives, referendums, and recall may also vest the public with a more direct, albeit supplemental, role in public-policy making.
In either case, members of the public need access to information and debate in order to make informed decisions. This role is so important that courts in some countries that do not have the equivalent of the protections of the First Amendment within written constitution have still ruled that such rights are implicit in their form of government (Bhagwat and Weinstein 2024, pp. 86-87). Pointing in part to protections for congressional debate and to the public’s role in electing public officials, Professor Akhil Reed Amar has argued that the Constitution was already based on the rights of free expression even before the states ratified the First Amendment (Amar 2010). Alexander Meiklejohn was among scholars who stressed this self-government rationale.
Equality rationale:
Freedom of expression recognizes political equality of all speakers
Although the self-government rationale focuses chiefly on the necessity of free and robust political dialogue in a democratic audience, scholars have also argued that the rights of free expression are also an important way of recognizing the idea of democratic political equality of all speakers (Bhagwat and Weinstein 2024, 88-89).
Philosopher Ronald Dworkin has argued that “such expression serves ‘to confirm [a speaker’s] standing as a responsible agent in, rather than a passive victim of collective action’” (Bhagwat and Weinstein 2024, 89).
Legitimacy rationale
Free expression, association supports government legitimacy
In addition to informing the public, First Amendment protections for free association and expression arguably contribute to governmental legitimacy. By being granted the privilege of participating in government, citizens are effectively exercising sovereignty over themselves rather than being subject to the whims that another individual or individuals are imposing upon them.
The American Revolution was fought in large part as a result of complaints by the colonists that they had no input into the decisions that the British Parliament, whose members they did not elect, made about the taxes they would pay, thus violating the principle articulated in the British Magna Carta of “no taxation without representation.”
Other rationales
Free speech helps in ascertaining truth
Although some Supreme Court decisions have stressed the primacy of political speech, others have also recognized the importance of free expression rights with respect to artistic expression and even the promotion of commerce. Moreover, the First Amendment also specifically recognizes a right to the “free exercise” of religion, which clearly also involves the related rights of speech, press, assembly and association.
John Stuart Mill, a 19th century British advocate of democratic government, argued for freedom of expression as a way of ascertaining truth and subjecting opinions to critical inquiry. He even believed that exposure to false ideas could help individuals refine the truths that they held and give them a better understanding of why they held them.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.