GOVT 2301 The Freedom of Speech And Public Opinion.
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Transcript of GOVT 2301 The Freedom of Speech And Public Opinion.
This is the first of three sections which outline the nature of the
external political pressures imposed on governing institutions.
Interestingly, each is tied into one of the participatory freedoms
established in the First Amendment.
This is a good way to dig further into these freedoms and how they have been impacted by events and
by court decisions.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.”
None of these freedoms were fully recognized or protected in Britain or the American colonies prior to
the Glorious Revolution, and were really only sporadically protected
following that. Recall that the states had no obligation to
recognize these rights until the 14th Amendment was ratified.
The freedom of speech solidified the right of people to not only speak freely but to influence
others, thus influencing the course of public opinion which can in turn
influence the direction of public policy.
The freedom of the press allows for the development of
communications mechanisms that can disseminate speech and
provide information about public events without governmental
interference.
The right to assemble and petition for a redress of grievances allows for the development of interest
groups and the ability of citizens to take an issue to their elected
representatives.
In this section we explore the first of the three. We will look at the
establishment and evolution of the Freedom of Speech and the nature
of public opinion in the U.S.
Blog Labels:
Is the American Public Rational?Marketplace of Ideas
Political IgnorancePolitical Knowledge
PollsPublic Opinion
Here is a critical consequence of Freedom of Speech:
By allowing people to think freely, government allows citizens to form
their own opinions and to be critical of it. They tend to not like
that.
Governments, historically, do not like to be criticized by their people,
and often have not allowed it.
Sedition and Seditious Libel have been punished over history,
sometimes brutally.
Sedition is defined as any spoken or written attempt to:
- bring government into hatred or contempt
- incites people to change government- promotes discontent among the
citizens
Sedition in its modern meaning first appeared in the Elizabethan Era (c. 1590) as the "notion of
inciting by words or writings disaffection towards the state or constituted authority".
"Sedition complements treason and martial law: while treason controls primarily the privileged, ecclesiastical opponents, priests, and Jesuits, as
well as certain commoners; and martial law frightens commoners, sedition frightens
intellectuals.“ - Wikipedia
Before there is speech, there is thought.
Are people free to think freely? Freedom of Conscience,
or Thought
Definition of the freedom of conscience:
“the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others'
viewpoints.”
Madison proposed the following language for the Bill of Rights: “No State shall violate the equal rights
of conscience.”
It was not approved by Congress
Sedition was punished severely in Britain – this included conscience and also to religious convictions.
Some background will help explain this.
When Henry VIII (1509 – 1547) became king he expanded the power (and resources) of the
monarchy by replacing the Catholic Church with the Church of England. He named himself
Supreme Head of the church.
Loyalty to the king – including membership of the Church of England - became especially
important given ongoing hostility with the Catholic Church. To be Catholic was to be considered a potential enemy of the monarch
and traitor to England.
England moved into an era of "conformity of mind" with the new royal supremacy (much akin to the absolutism of France's Louis XIV):
by 1536, all ecclesiastical and government officials were required
to publicly approve of the break with Rome and take an oath of
loyalty – Britannia.com
To not conform was to a potential rebel. To articulate your opinions
meant you were willing to act rebelliously.
The founders were clearly guilty of seditious libel.
Had the revolution failed they would have faced severe
punishment.
The idea that people ought to be free to express their beliefs, even if
they are critical of government began in late 17th Century Britain following the Glorious Revolution
and the limitation of arbitrary monarchic power.
Ideas began to flow freely in Britain.
This included ideas about religion, government, science, etc….
Many early arguments in favor of free expression were found in
Cato’s Letters
These were essays that promoted expanded individual freedom, speech and conscience, and
argued against tyranny.
“SIR, Without freedom of thought, there can be no such thing as wisdom; and no
such thing as publick liberty, without freedom of speech: Which is the right of
every man, as far as by it he does not hurt and control the right of another; and this is the only check which it ought to suffer, the
only bounds which it ought to know. . . .
. . . This sacred privilege is so essential to free government, that the security of property; and the freedom of speech,
always go together; and in those wretched countries where a man can not call his tongue his own, he can scarce call any
thing else his own. Whoever would overthrow the liberty of the nation, must begin by subduing the freedom of speech;
a thing terrible to publick traitors.”
Nevertheless, sedition has been punished over American history, at
least through WWI.
Alien and Sedition Acts.Sedition Act of 1918.
The Montana Sedition Project.
Of course sometimes seditious language can indeed be dangerous to the greater society. How can a determination be made between
“sedition” that is merely the expression on personal political
beliefs and that which is intended to cause harm?
The Harm Principle
“. . . the only purpose for which power can be rightfully exercised
over any member of a civilised community, against his will, is to
prevent harm to others."
Sedition can only be punished if it causes an actual harm. Challenging
authority is not sedition. It is actually necessary in a democracy
for the status quo to be challenged.
Free open debate is necessary in order to either swap error for
truth, or ensure a renewed appreciation for preexisting
principles.
The phrase used to describe this is The Marketplace of Ideas.
The concept was articulated in Oliver Wendell Holmes Jr.’s
dissenting opinion in Abrams v. the United States.
“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition...But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas...that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”
“Free speech is an indispensable tool of self-governance in a democratic society. Concurring in Whitney v.
California (1927), Justice Louis Brandeis wrote that ‘freedom to think as you will and to speak as you think
are means indispensable to the discovery and spread of political
truth.’“ – Rodney Smolla
Key point: The court has ruled that not all speech is the same
Commercial Speech is different from Political Speech and is given
fewer protections. Limits on cigarette advertisements have
been found constitutional.
Some additional readings on commercial speech:
- Commercial Speech.- Governmental Regulation of Commercial
Speech.- LII: Commercial Speech.
- Government Regulation of Commercial Speech.
- CATO: Contrived Distinctions.
It is very difficult to restrict speech on political grounds. It must be demonstrated
that an act of speech had a direct connection with a disruption of public
order.
The mere articulation of an unpopular, even dangerous opinion is not sufficient to
punish the speaker if no harm is likely to result from the speech.
Political Speech is argued to be central to democratic governance, so it is given the highest protection
from the courts.
Strict Scrutiny
Yes, that’s the same standard used for suspect classifications under equal protection claims.
Flag Burning: Texas v. Johnson
Burning a flag carries a political message, so it is protected free
speech.
Cross Burning: Virginia v. Black
Burning a cross, historically, is a symbolic – and real - threat of violence, so it is not protected
speech.
Just recently:
Funeral Protests: Snyder v. Phelps.
Protests at the funerals of American soldiers are protected
speech.
Again, the key question: When does hateful speech cross the line
and becomes dangerous? Does hateful speech create a hostile environment in a educational
institution? Does it do so to the degree that government has an
obligation to stop it?
Question: Is there really a marketplace of ideas in the United
States? Are all ideas equally represented?
Just because there are legal protections to engage in critical
debate, there is no guarantee that there is in fact vigorous debate on
public issues.
Is the promotion of such a goal a compelling public interest?
Additional point: John Stuart Mill thought that public opinion in a democracy can be dangerous.
The voice of the minority can easily suppressed and intimidated.
Where one can be protected from a tyrant, it is much harder to be
protected "against the tyranny of the prevailing opinion and feeling".
People will be subject to what society thinks is suitable — and will
be fashioned by it. – Wikipedia.
Madison asked similar questions in Federalist #10.
How is the “obnoxious individual” or the “weaker party” protected
from the majority?
“ . . . a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government
in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result
from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.”
This will involve an investigation of the means by which we come to
know what public opinion is:
The Public Opinion Poll.
First, a definition:
Public Opinion: the aggregate opinions or values held by a group of people, usually as determined
by a public opinion poll.
In a democracy, public opinion is supposed to determine the direction of public policy.
We discussed this in the section on elections.
But the relationship is complex.
While public opinion influences government, governments try to
influence public opinion.
James Madison on public opinion:
“Public opinion sets bounds to every government, and is the real sovereign in every free one. As there are cases where the public
opinion must be obeyed by the government; so there are cases, where not being fixed, it may be
influenced by the government.”
Governments and political organizations attempt to influence
public opinion in order to gain support for its policies.
While the people are to be sovereign in the American system,
governments, and political organizations, actively engage in
efforts to influence public opinion.
Example: The Permanent Campaign.
“governing with public approval requires a continuing political
campaign”
Governing entities, political parties, and interest groups
actively use polling to determine how best to frame their messages.
“Abuse of words has been the great instrument of sophistry and chicanery, of party, faction, and
division of society.”
- John Adams
Question: How easily can public opinion be manipulated? If it is
easy, then what does this say for the democratic nature of our
government?
Remember that the founders had a mixed view of the opinion of the general population. While they accepted that the nations must rest on the people’s authority,
they were suspicious of the quality of public opinion. This is a theme
we started this class with.
“For my part, I am not much attached to the majesty of the multitude, and therefore waive all pretensions (founded on such conduct), to their countenance. I
consider them in general as very ill qualified to judge for themselves what government will best suit their
peculiar situations; nor is this to be wondered at. The science of government is not easily understood. Cato
will admit, I presume, that men of good education and deep reflection, only, are judges of the form of a government; whether it is constituted on such
principles as will restrain arbitrary power, on the one hand, and equal to the exclusion of corruption and the
destruction of licentiousness on the other” - (Caesar #2) Alexander Hamilton
This explains why there was an effort to educate the public.
Educational institutions are often used to promote certain values,
which leads to common acceptance of certain beliefs
Education is argued to be one of a handful of factors that influence an individual’s political socialization.
The study of political socialization concerns how people acquire the opinions they possess as adults.
Why is someone a Republican? Or a liberal? Or a supporter of gun
rights? Or of collective bargaining?
There are four leading factors which influence the formation of
public opinion:
FamiliesPeer Groups
SchoolsThe Media
Families, obviously, have the primary impact on political
attitudes, but this impact tends to be indirect. Families tend to have a
major impact on party identification, but not necessarily
on policy positions.
Peer groups have been increasingly argued to be dominant
determinants of attitudes among the young, and even beyond. Some
of these impacts can be due to membership in a political
generation since individuals born at the same time are exposed to
similar events.
Public Opinion Polls
A public opinion poll is a systematic way to estimate the attitudes and opinions of a large
group of peopleby drawing a representative
sample of that group and asking them questions.
Polling has become ubiquitous over the past several decades. Almost all
aspects of politics use polling to determine not only what public thinks
about certain issues, but how their opinion might be manipulated.
Major polling organizations include:
ABC NewsAmerican National Election Studies
Associated PressCBS News
CNNGallup
General Social Survey at NORCWall Street Journal/NBC News
Washington PostFox
Marist Pew Research Center
Siena CollegeQuinnipiac University
The Gallup Poll
The oldest of the polling organizations. Founded by George
Gallup who helped develop the random sampling process.
Gallup became noteworthy due to a stunt he pulled to demonstrate
the accuracy of his methods
The Literary Digest Poll.
Random Sampling
A random process is used to draw a sample from the population the researcher wishes to study. The
theory is that anyone in that population has the same chance to
be drawn into the sample.
Using a sample of 1,000 respondents, a valid poll can
generally state, within 3% points plus or minus, what opinions are
on a given issue.
The development of public opinion data has allowed research into the
various factors associated with public opinion formation.
Processing Information
Do we use incoming information to develop opinions or to we evaluate
incoming information based on whether it confirms pre-existing
beliefs?
Do we use incoming information to develop opinions or to we evaluate
incoming information based on whether it confirms pre-existing
beliefs?
“Schemata are an effective tool for understanding the world. Through the use of schemata, most everyday situations do not
require effortful processing— automatic processing is all that is required. People can
quickly organize new perceptions into schemata and act effectively without effort. For example, most people have a stairway schema and can apply it to climb staircases they've never seen
before.” – Wikipedia.
“ . . . standardized and simplified conceptions of groups, based on
some prior assumptions. Generally speaking, these ‘stereotypes’ are not based on objective truth, but
rather subjective and often unverifiable content-matter.” –
Wikipedia.
Incoming information is often processed through “filters” that
people have developed in order for them to make sense of the world.
Conservatives tend to believe only conservatives and liberal only
liberals.
The same information can be discounted if comes from someone
the recipient does not like.
A bit of irony: Though the US is based on the idea of free speech,
the country itself is based on certain principles that tend to be
agreed to by most Americans.
These are articulated in the country’s fundamental documents and reinforced by schools, families
and peer groups.
Question: Are these sincerely held by individuals or is there pressure to conform to the tyranny of the
majority?
Was Mill right?
Regardless, as abstract values few people would disagree with them.
Disagreements tend to emerge when questions become more
concrete.
Example: We might agree that individual freedom is a
fundamental value, but disagree about what specific things people
should be free to do.
Should drug use and sexual activity be personal choices, or can they be
subject to societal rules?
People may have different definitions of “freedom” and
different places they draw the line between liberty and order.
What about the right to privacy?
We might think that privacy is a good thing, but disagree over what
we should have privacy to do.
Another example: Is there really equal opportunity in America?
Answers can differ based on personal experience
Question: Is the public rational?
Can it provide a solid foundation for democracy? Can a democracy
survive if based on an ignorant public?
- Public Ignorance and Democracy
Have opinion polls demonstrated whether the public is truly capable
of providing the basis for a democracy?
Recall that James Madison did not think they were.
Madison, on public opinion in Federalist #10:
“The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under
which popular governments have everywhere perished”
“The proposition that the people are the best keepers of their own liberties
is not true. They are the worst conceivable, they are no keepers at all;
they can neither judge, act, think, or will, as a political body.”
- John Adams