Review of Jonathan Turley.” The Indispensable Right: Free Speech in an Age of Rage.” New York: Simon & Schuster, 2024.
Although there are many volumes recounting the history of freedom of speech in the United States, few present as full-throated and compelling a defense as Jonathan Turley’s recent book.
Turley is a law professor at George Washington University who has frequently testified before Congress, litigated numerous cases and served as a legal commentator for multiple news organizations. He believes that freedom of speech is not simply a functional tool for supporting democratic government, but a fundamental natural right — like those articulated by John Locke and Thomas Jefferson and embodied by James Madison in the First Amendment — essential to human flourishing.
Portraying the First Amendment as a statement of natural rights
Turley observes that Madison designed the Bill of Rights to “expressly declare the great rights of Mankind secured under this Constitution” and calls the free speech protection “the strongest protection for free speech in history” (p. 49). Turley observes that Madison ended the free speech protection with a period rather than, as in the French Declaration of the Rights of Man and the Citizen, with a comma followed with qualifications (p. 50). (This is not technically correct because other rights, albeit not limitations, are listed after freedom of speech and before the period.)
One fascinating comparison is cleverly illustrated with a picture of Norman Rockwell’s painting of “The Connoisseur” in which a gentleman seeks to contemplate the meaning of a Jackson Pollock painting. Turley likens his view of the First Amendment to Rockwell’s realism. Although many constitutional scholars and Supreme Court justices, like art critics, prefer to treat the First Amendment as an abstract Pollock painting, in which they can balance First Amendment rights against other claims, Turley portrays himself like realist Rockwell who realistically treats these rights as the absolutes they appear to be.
Like historian Wendell Bird, who outlined his views on the Sedition Act of 1798 in “Press and Speech Under Assault” (2016), Turley believes that Madison intended freedom of speech and press to put an end to the crime of seditious libel. Turley believes these rights were meant to supersede, rather than perpetuate the views of the English judge and legal commentator, Sir William Blackstone, who interpreted the rights of speech and press as simply barring prior restraint, but subject to a host of subsequent prosecutions.
Examples of restricted speech in practice
Turley goes on to show, in vivid prose, how some of the most vigorous defenders of free speech for themselves often sought to suppress such speech on the part of others. John Adams and Samuel Adams praised the Boston Tea Party but later sought to suppress Shay’s Rebellion and criticism of the government through the Sedition Act of 1798. Although Madison does not appear to have faltered, even his close friend Thomas Jefferson hoped to use state seditious libel laws to harass his political opponents.
Turley is critical of Justice Oliver Wendell Holmes Jr. and his positivistic and relativistic clear and present danger test and his analogy of falsely shouting fire in a crowded theater. Turley believes this test and analogy erode speech protections during times of rage when they are most needed. Turley is equally concerned that Justice Robert Jackson’s view that the constitution is not a suicide pact tends to balance speech against security rather than understanding that freedom of speech actually enhances such security and human flourishing.
As the title of his book suggests, Turley believes that we are living in a time of political rage, but he points out that this is far from unique. From the time of the Whiskey Rebellion, the Sedition Act, Fries Rebellion, the War of 1812 (Andrew Jackson comes in for particular censure), the Civil War, two world wars, the Cold War, and the riot at the Capitol Building on Jan. 6, 2021, supposed supporters of free speech have sought to balance this right against public exigencies. They have rarely focused on the difference between forceful advocacy and overt legal actions that directly harm others.
Turley, who considers the events of Jan. 6 to constitute “a desecration of our constitutional process” (p. 181), objects to calling the riot an insurrection and does not think those who participated should be excluded from office under Section 3 of the 14th Amendment. He is wary of piling on charges of seditious conspiracy against those at the Capitol who are already being prosecuted for illegal behavior.
Turley believes we have far more to fear from governmental rage than we do from popular rage. He further believes that the former often begets the latter and strengthens it by creating martyrs and driving such speech underground where it cannot be combated. He opposes elevating political speech above other types of speech, which are also conducive to human flourishing.
Concerns about social media censorship, campus speech suppression
Turley is particularly concerned about censorship by large social media companies, especially when they are pressured by government. He argues that some of the COVID-19 stories that the government encouraged social media to suppress, especially those objecting to the closing of public schools and questioning the efficacy of mask wearing, ultimately proved to be true, or largely so. In this reviewer’s judgement, however, Turley does not sort out what freedom such private entities should have to curate postings on their sites or clarify whether government is in a position to seek to prevent the exercise of such decisions.
Turley calls out individuals who have questioned some of Donald Trump’s statements and actions while engaging in similar behaviors as, for example, questioning the results of the 2016 presidential election or calling upon their supporters to fight. In this reviewer’s judgment, there is still no equivalence between those actions and Trump’s role in questioning the results of the 2020 election, spreading “fake news” and fomenting violence on Jan. 6.
Turley is particularly concerned about justifications for suppressing speech on college and university campuses and strongly supports the Kalven Report and the policies adopted by the University of Chicago, where he attended. He fears that policies, which he documents, attempting to create safe zones and otherwise protect students from disfavored or uncomfortable speech have eroded speech. In what could be a slippery slope, he supports governmental efforts to withhold its funding from institutions that do not give free range to speech.
Turley notes that that many American allies, including Canada, the United Kingdom, France, Ireland, Germany and France, have continued to suppress speech without successfully stemming the rise of extremist political movements.
It is doubtful that any reader will agree with all that Turley has written in this book, but it forcefully presents the view that the First Amendment is more emphatic and revolutionary than most previous writers have taken it to be. Turley’s book is almost as indispensable for encapsulating this exalted view as the First Amendment is for articulating the freedom of speech.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.