Alexander Meiklejohn's First Amendment philosophy

(from "Political Freedom")

"The Rulers and the Ruled"

Meiklejohn says that Americans think of themselves as politically free and believe in self-government. "Governments, we insist, derive their just powers from the consent of the governed, " he wrote, adding that if such consent were absent, governments have no power that is just.

He said that the Constitution is based on a two-tiered political agreement. First, all authority, whether to exercise control or determine common action, belongs to the people.

"We, and we alone, are the rulers," he wrote.

However, it is also ordained that each of us is subject to control. Each may be told what she or he is allowed to do or not do and what she or he is required to do. This does not, however, suddenly make the people who rule into slaves

As citizens, people do not become "puppets of the state" after having created the state by common consent, they "pledged allegiance to and keep their pledge."

Control by a self-governing nation, Meiklejohn says, is different from control by a king or a tyrant. To confuse the two is "to lose all understanding of what political freedom is.

Under normal conditions, no freedom exists for people except by authority of government.

Free people are not non-governed. "They are governed - by themselves," Meiklejohn argued.

The U.S. Constitution says, "Congress shall make no law ... abridging the freedom of speech (and press)...."

In such words Congress is not barred from all action on freedom of speech, Meiklejohn argued. Legislation abridging freedom of speech is forbidden, but not legislation to enrich it.

Freedom of mind for citizens in a self-governing society is not fixed. It can be increased by learning, by teaching and by exposure to a free flow of accurate information -- and by bringing people together in communication "and mutual understanding."

Thus, Congress is not forbidden to CULTIVATE the "general intelligence which is important to successful self-government.

Meiklejohn argued that no person reading carefully the First Amendment would miss its absolute nature. "Congress shall make no law..." admits no exceptions and means "no" abridging freedom of speech shall be enacted -- in war or in peace or in times of peril. The people who adopted the First Amendment were not ignorant about the reality of war or dangers to national security.

Meiklejohn argued further that it would be closer to the truth to say that those dangers were exactly what they had in mind as they crafted the amendment. They knew "how terror and hatred, how war and strife, can drive men (and women) into unreasoning suppression."

Meiklejohn asserted that it is clear for modern Americans that the words of the First Amendment mean what they say -- that "under no circumstance shall the freedom of speech be abridged."

However, he argued, no one can doubt that in a well governed society the Congress has the right and the duty to prohibit certain kinds of speech - such as libel, slander, and words that incite people to commit criminal acts.

He emphasized that the First Amendment "does not forbid the abridging of speech" but does "forbid the abridging of the FREEDOM of speech."

The First Amendment allows abridging of speech but does not allow abridging of freedom of speech. Also, the ultimate purpose of the First Amendment is voting.

Meiklejohn cited Socrates and Plato in building his distinction that when a government attempts to limit the freedom of a person's opinion, the person has "both the right and duty of disobedience." On one hand, if the government legally requires a person's property - or life - the citizen must submit, but the government may not limit a person's freedom to have and express opinions.

The paradox of freedom as it is applied to speech is best seen in the model of the town hall meeting, which is the simplest and clearest form of self-government.

In town hall meetings, citizens assemble to discuss matters of public interest -- say, schools, defense, roads, health care -- and act upon them. Each citizen is freed to come and to "meet as political equals." Each has the "right and duty" to think her or his own thoughts, express those thoughts and listen to others' arguments.

Meiklejohn argued that the basic principle is that freedom of speech is not abridged even though a moderator is necessary to open the meeting and arrange the conduct of business under certain rules, which the moderator will enforce. The speakers may speak without interruption if they speak on the issue being discussed and within the time allotted.

As Meiklejohn asserted, in self-governing, freedom of speech does not mean that "every individual has an unalienable right to speak whenever, wherever, however" the person chooses.

The town hall meeting model shows that the discussion is about issues important to the public and shows that in political self-government, the main point is not in the "words of the speakers, but the minds of the hearers."

Meiklejohn emphasized: "The final aim of the meeting is the voting of wise decisions," so voters must be made as wise as possible by making sure they understand the issues and so must have all the "facts and interests" - in other words, that all sides are presented fully and fairly.

The self-governing community uses the voting to gain "wisdom in action" that it can find it only in the minds of the individual citizens. "If they fail, it fails."

"The First Amendment, then, is not the guardian of unregulated talkativeness." It does no mean that on every occasion every citizen shall speak in the pubic debate, but it does mean that "everything worth saying shall be said."

Each of the known conflicting views shall have a share of the available time and that no view shall be denied a hearing because it is on one side of the issue rather than another." It also means that citizens may not be stopped from speaking "because their views are thought to be false or dangerous."

When people govern themselves, "it is they - and no one else - who must pass judgment upon unwisdom and unfairness and danger."

"And that means that unwise ideas must have a hearing as well as wise ones, unfair as well as fair, dangerous as well as safe, un-American as well as American.

"Conflicting views may be expressed, must be expressed, not because they are valid, but because they are relevant. If they are responsibly entertained by anyone, we, the voters, need to hear them. When a question of policy is 'before the house,' free men (and women) choose to meet it not with their eyes shut but with their eyes open. To be afraid of ideas, any idea, is to be unfit for self government. Any such suppression of ideas about the common good, the First Amendment condemns with its absolute disapproval. The freedom of ideas shall not be abridged."

[The book was riginally published by Harpers in 1948]

A summary of Meiklejohn's assertions:

1. Government gets power from the consent of the governed -- PEOPLE are the rulers and the ruled

2. People are politically free and govern themselves; only 1 group has the power: self-governing people

3. There should be no manipulation of the people -- that is the destruction of self-government

4. Political freedom does not mean freedom from control; it means self-control

5. All matters of public policy shall be decided by the people and be equally binding on all citizens whether they agree or not.

6. The First Amendment does not ban Congress from all actions upon speech. It is FREEDOM OF SPEECH, not all speech, that is protected.

7. Protection of freedom of speech related to public policy is protected absolutely -- Congress shall make no law abridging it in peace or in war.

8. The town meeting model shows how FREEDOM OF SPEECH works: Every person is free to come to the meeting; all people are political equals; each has the right and duty to think her/his own thoughts, to express them and to listen to the arguments of others; the moderator keeps order and makes certain every idea gets to be expressed; all the important ideas get put forth; the ULTIMATE PURPOSE is VOTING, thus making self-governing a reality. After the community members have voted and made a decision, all people are bound by the decision.

9. Regarding self-governance, 2 types of speech exist:

A. speech related to self-governing, which must have ABSOLUTE First Amendment protection;
B. Incidental speech (speech not related to self-government, such as gossip, sports, weather, pornography, etc.), which may be regulated in some mannner.

For a full discussion, see "Free Speech and Its Relation to Self-Government," by Alexander Meiklejohn (Harper & Bros., 1948)

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