20.

THE SOCIAL CONTRACT AND HUMAN DIGNITY

The communal gathering of civic-minded citizens imagined by James Madison and Alexander Hamilton has metastasized into something to be avoided at all cost. Better to stay home, bolt the doors, block out the noise, and wish for better days ahead.

THE SOCIAL CONTRACT comes with a reasonable expectation that the state is obligated to protect its citizens from violence. The natural rights that inspired the drafting of the Constitution included the right to personal security. The Framers made no distinction between mind and body—a citizen had the right to feel secure in both. Protection of self-worth and peace of mind had a place at the table of these newly formed rights. Just as in Franklin Roosevelt’s 1941 “Four Freedoms” speech, one is not truly free if he or she has unmet needs; one is not free if he or she has fears for personal safety. Citizens expect and demand freedom on meaningful terms.

As Heyman wrote in offering a Lockean perspective on natural rights, “My rights entail a correlative duty to respect the liberty and personality of others. . . . [T]he concept of freedom includes immunity from interference. If freedom is to exist, then it must be bounded by an obligation to refrain from interfering with the liberty of others. . . . [F]ree speech is a right that is limited by the fundamental rights of other persons and the community.”¹⁸⁴

From the earliest days of the First Amendment, the natural rights of the speaker were always constrained by the fundamental rights of others. Indeed, at the time of its conception, the American legal system was more likely to be called upon to protect the rights of those who were being harmed by what the speaker had to say, or the manner in which he or she wished to say it, than to defend the right of free speech itself. The founding generation had a more developed understanding of the harm that words can bring. Thomas G. West wrote that, “[a]s for injurious speech, government not only may punish it, but it is obliged to do so . . . for the same reason that government is obliged to punish murder and rape.”¹⁸⁵

Harm from speech was never far from the Founders’ minds. Free speech and civil society were envisioned as equal partners. Article 11 of the Massachusetts Constitution addressed injuries not just to person and property but also to character. Pennsylvania’s Constitution of 1790 recognized the “right to speak, write or print on any subject, but citizens were held responsible for the abuse of that liberty.”¹⁸⁶ Citizens were held accountable for injurious speech by laws that contemplated the prosecution of offenders. The Founders identified four categories of injurious speech: personal libel; seditious libel; speech that harms the moral foundations of society; and speech that brings about injurious conduct. Libel was regarded as a personal injury no less severe than an assault or rape. One who commits a libel “abuses his privilege, as unquestionably as if he were to plunge his sword into the bosom of a fellow citizen.”¹⁸⁷ Chief Justice Thomas McKean of the Pennsylvania Supreme Court ruled in 1788 that “libelous speech was not unlike a personal injury and is ultimately more harmful than the criminal acts of an assassin or arsonist.”¹⁸⁸

The Founders also recognized that the abuse of freedom of expression could bring harm by undermining the moral foundations of society. Speech can have many victims when it tears away at public peace. In an important case before the Pennsylvania Supreme Court in 1824, Judge Thomas Duncan wrote that “[L]icentiousness endangering the public peace, when tending to corrupt society, is considered a breach of the peace . . . [because] it is destructive of morality generally . . . [and] weakens the bonds by which society is held together. . . . [T]hese are not punished as sins or offenses against God, but crimes injurious to, and having a malignant influence on society.”¹⁸⁹ In a case before the New York Supreme Court in 1811, Chief Justice James Kent wrote that speech and writings can be punishable when “they strike at the root of moral obligation, and weaken the security of the social ties.”¹⁹⁰

Clearly, speakers are not the only ones with rights. Listeners have them, too. The First Amendment was never intended to favor the speaker over the listener. In fact, among the basket of expressive freedoms contained in the First Amendment at the time of its creation, the one given the highest priority was the freedom of the press to criticize the government. The rights of individual speakers to do the same thing was secondary.

The original intention of the Founders has taken on a life of its own. The First Amendment is nearly always invoked to defend the speaker’s right to overcome the government’s attempt to silence the content of what is being said. Regulating speech is regarded as the kind of tyranny once reserved for prior restraints on the press, warrantless searches and seizures of homes, and cruel and unusual punishments. The protection of speakers, odious and reprehensible though they may be, is the signature sign of American freedom. Law professor Cass Sunstein was correct when he observed that, “[c]urrently American law protects much speech that ought not to be protected. It safeguards speech that has little or no connection with democratic aspirations and that produces serious social harm.”¹⁹¹ The captive listeners of harmful speech are left without a constitutional remedy—or even a soundproof booth in which to shield themselves from indignity and assault.

During the second half of the twentieth century, this idea of reasonable and sensible restraints placed upon freedom of expression as somehow being incompatible with American liberty was elevated to its own mythology. And it would surely have surprised the Founding Fathers for whom the right to speak freely was absolute as long as exercised responsibly. The Founders believed in more modesty around speech, imagining a nation that cultivated thoughtful, respectful orators rather than shameless blowhards. We have lost perspective on the limits of speech because we have forgotten how important speech was to the deliberations that led to the founding of this country. The Founders chose their words carefully. And they did not weaponize them either. Jurist St. George Tucker wrote in 1803 that, “Liberty and speech . . . consists in the absolute and uncontrollable right of speaking, writing and publishing, our opinions concerning any subject . . . without restraint, except as to the injury of any other individual, in his person, property, or good name.”¹⁹² The Vermont jurist Nathaniel Chipman wrote in 1798 that, “Man has no right to pursue his own interest, or happiness, to the exclusion of that of his fellow men.”¹⁹³ That principle applied as much to speech as to trespass—both could infringe on the rights of others.

The right of free speech always came with natural limits—even before Justice Murphy created categories of proscribed speech. The Founding Fathers never regarded free speech as a blank check, always payable under the full faith and credit of their new Constitution. As Thomas West astutely observed, “[t]he Founders protected liberty but not licentiousness. . . . Equal natural rights also imply equal natural duties. Your right to life and liberty means that I have a duty not to harm or enslave you.”¹⁹⁴

Even under the libertarian traditions of Locke, Jefferson, and Cato, the exercise of a given freedom, especially speech, was always understood to be contingent on the respect shown to the rights possessed by others. In the series of essays that inspired the American Revolution known as Cato’s Letters, speech was recognized as a freedom provided that it “[i]njured neither the society, nor any of its members.” Thomas Jefferson believed that natural rights, which represented the foundation of the Bill of Rights, were limited by a prohibition not to “commit aggression on the equal rights of another” and by “the natural duty of contributing to the necessities of the society.”¹⁹⁵

The philosophers of the Enlightenment took as an article of faith that all human beings were naturally endowed with both freedom and dignity. Freedom was never unlimited; and any claim to freedom was circumscribed by a reciprocal duty to respect the freedom of others and to refrain from interfering with their own equally shared liberties.¹⁹⁶ The essence of the social contract is not merely a grant of rights with the assurance of governmental protection of those rights. The “social” end of that contract carries with it the expectation that there are duties owed by individuals to the communities in which they were bound. It is the community, through the regulatory powers of the state, which is charged with the duty of keeping the peace, protecting the people from harm, and promoting of the common good.¹⁹⁷

Heyman observed that there was always “wide agreement that, as natural rights, the freedoms of speech and press were limited by the rights of other individuals. . . . [M]ost Americans believed that those freedoms were also bounded by the rights of the community, such as the right to preserve the public peace.”¹⁹⁸

Curbing government excess has turned on itself, where the excess is committed by citizens drunk on liberty, distorting its original purpose and becoming perpetrators of an altogether different kind of tyranny—citizens against citizens. Much of the same argument can be made about the Second Amendment, where absolutists maintain a militia mentality that is more a mirage than an American right. The First Amendment was intended to empower citizens to speak out against their government. Now it has been misappropriated into a weapon aimed at fellow citizens.

Free speech was meant to draw people out into the public square where they would be made better informed, engaging in healthy debate, enticed to contribute their own ideas to the public discourse. But as law professor Robert Post observed, “the First Amendment, in the name of democracy, suspends legal enforcement of the very civility rules that make rational deliberation possible.”¹⁹⁹ The public square has become the private domain of those not with the better argument, but with the bigger bullhorn, tougher hide, and more aggressive tone. Why venture out of the house to exercise a fundamental right that is touted as a defender of neo-Nazis and white supremacists? The communal gathering of civic-minded citizens imagined by James Madison and Alexander Hamilton has metastasized into something to be avoided at all cost. Better to stay home, bolt the doors, block out the noise, and wish for better days ahead.

Physical violence that results in a harmful battery is addressed under both criminal and civil law because it violates both the criminal laws of the state and the civil laws in tort that protect and compensate individuals. A tort is a wrong committed against an individual; a crime is a wrong against the entire community. The duties owed to the community are not forfeited simply because an individual has an action in tort. These are two separate actions. A defendant owes debts to society and has a duty not to cause harm to individuals.

Yet, when it comes to speech, courts are reluctant to protect the public if it means interfering with the First Amendment rights of a speaker. Individuals remain free to pursue their civil remedies in tort. Why is the state deprived of a remedy against a speaker who may end up liable in tort?

A further paradox is that criminalizing violent acts against the body gives rise to tortious remedies that are seldom possible with speech. Offending personal dignity under tort law receives a better day in court than a similar assault from a speaker, which is more likely to go unpunished under criminal law.²⁰⁰