Distinguished Professor draws fine line for judicial decision-making on free speech

14 October 2016

Distinguished Professor of Philosophy Dan Robinson outlined a narrow path for judges to negotiate in their decision-making on cases of free speech, in his lecture at Wolfson College last night on the history of free speech from Locke to the First Amendment.

Professor Robinson charted the historical milestones in the development of protections for fundamental rights that we take for granted today, arguing that, since the time of Madison, such liberties were primarily focused on protecting religious freedom, and that “freedom of speech has always been parasitic on freedom of religion”.


Freedom of speech has always been parasitic on freedom of religion


Encompassing 300 years of philosophical thought, Professor Robinson argued that Locke’s A Letter concerning Toleration was written in response to religious dissenters, and is better understood as a kind of evangelism rather than a defence of the civic realm.

Throughout the lecture, Professor Robinson invoked some of the most elegant defences of free speech through the ages, including Milton’s injunction against censorship: “who kills a Man kills a reasonable creature, Gods Image; but hee who destroyes a good Booke, kills reason it selfe, kills the Image of God, as it were in the eye”.

Yet his thesis did not baulk at the age-old argument concerning the balance to be drawn between freedoms of speech and protections against slander, libel, purgery, blackmail, and the like, not to mention the question of what constitutes speech itself, as Professor Robinson provocatively raised by asking: “Is burning a flag an act of speech?”


Is burning a flag an act of speech?


To illustrate his observation that the clarity of a principle soon gives way to conflicting interpretations when applied to real-world circumstances, Professor Robinson cited the judgment of Justice Harlan in overturning the conviction of a man for wearing a jacket in a courthouse that displayed the phrase, "F*** the Draft": “one man’s vulgarity is another’s lyric”.

The levity of the anecdote that the defendant argued that it was his girlfriend who had stencilled the slogan on his jacket and that he was, at that time, “not opposed to the draft”, was leavened by an observation made by the lawyer Louis Brandeis in favour of deliberation and debate over censorship: “the remedy to be applied is more speech, not enforced silence”.

This view was endorsed in a 1949 ruling of Justice Douglas in Terminiello v. Chicago, "A function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."


A function of free speech is to invite dispute. It may indeed best serve its high purpose when it induces unrest, creates dissatisfaction, or even stirs people to anger


Yet the dangers of an uncritical adoption of this position were brought to bear when Professor Robinson described the case brought in Skokie, Illinois in the 1970s, in which a group of neo-Nazis succeeded in obtaining a licence to march in the city displaying the swastika, despite the fact that the population was 50% Jewish, including the families of many Holocaust survivors.

Professor Robinson concluded by identifying the two great threats that the First amendment, and indeed liberty wherever it is found, could face: firstly, that courts rule contrary to public expectation; and secondly, that courts rule completely in line with public opinion. It is this fine line, dividing over-responsiveness and indifference to public opinion, that judges must navigate in order to continue to uphold and protect these, at times, conflicting freedoms.

The lecture was convened by Professor Sir Richard Sorabji, as part of a series on free speech. Please note that the lecture by Timothy Garton Ash has been postponed until further notice.

A podcast of the lecture will be available to download from our Podcast pages next week.