The U.S. Has Never 100% Upheld the First Amendment (And Still Doesn’t)

The U.S. Has Never 100% Upheld the First Amendment (And Still Doesn’t) August 18, 2020

This may come as a surprise, but the U.S. has never uniformly upheld the right to free speech, and in many cases still limits it. Once you know this history, it’s hard to feel much sympathy for people with bad ideas being deplatformed.

Microphone against a dark background.
Photo by Daniel Sandvik on Unsplash. In public domain.

As I wrote in my previous post, the freedom of expression is widely regarded as a universal human right, albeit one that different governments interpret differently. In the U.S., the First Amendment is held up as a golden beacon of free speech… and yet it hasn’t always been interpreted or enforced that way, and in many cases still is not.

In his excellent book What Snowflakes Get Right: Free Speech, Truth, and Equality on Campus, Ulrich Baer demystifies the history of freedom of speech in the U.S. with an emphasis on its implications for the university setting, where inquiry and truth are important values. Baer also addresses critical moments in free speech history that solidified around Frederick Douglass, escaped slave and prominent 19th century abolitionist and intellectual.

Significantly, Baer asserts:

The First Amendment played an insignificant role in our country’s jurisprudence until early in the 20th century. It was never cited during the 19th century by our Supreme Court but first applied in 1925 to overturn state regulation of speech and used for the first time in 1965 to rule an act of Congress unconstitutional (regulating the mailing of political material). In fact, Douglass spoke against prevailing public sentiment of his era, formalized by the Supreme Court’s morally reprehensible “Dred Scott” decision of 1858 and shared by a great number of white people, which ruled that Black Americans could never be citizens in the United States, even in states where slavery had been ruled illegal. This ruling also affirmed that Black Americans would never have the right of free expression of any other civil liberties such as the vote. Douglass insisted on his speech rights although he did not have a right to speak, and did not enjoy the protection of the First Amendment. But he gave a speech. What does this mean? (75-76)

There’s a lot to unpack here. First, Baer tells us that nobody was running around invoking the First Amendment in the 19th century, and it really didn’t gain traction in major court rulings until the 20th century. In fact, the people supposedly responsible for upholding free speech accepted and enforced limits on their own free speech; as Baer reminds us: “Even in Congress, governed by procedural rules to ensure robust but reasoned debate, the mere discussion of the abolition of slavery had been prohibited for eight consecutive years, from 1836 to 1844, via a ‘gag rule'” (72).

The “gag rule” on discussing abolishing slavery may have ended in 1844 but informally, it continued, as Baer chronicles: “In 1856, Massachusetts senator Douglas Sumner had been caned nearly to death by a South Carolina Representative for criticizing slavery” (73). So it’s not like the esteemed representatives of the U.S. government upheld free speech rights uniformly or even non-violently.

In this political and cultural climate, Douglass risked his life to give speeches about free speech (how’s that for meta). And he’s held up as a free speech absolutist by advocates today, which as Baer points out, isn’t really a great interpretation of the historical evidence, since it misses some major points about the contexts in which he was speaking.

This brings me to my second point about the lengthy block quote above: that Douglass was speaking in conditions that were hostile yet transformative. When Douglass said to a white audience: “Would you have me argue that man is entitled to liberty? that he is the rightful owner of his body?…To do so, would be to make myself ridiculous, and to offer insult to your understanding” (quoted in Baer 45) he was essentially engaged in what linguists and other social scientists would call a performative speech act. Unlike other kinds of speech acts which may function more descriptively, performative speech acts change or accomplish something in the world, as when the right kind of official pronounces someone married and bam now it’s real.

In other words, when Douglass says “that requiring him to present an argument for his liberty, and thus for the alienable rights that include freedom of speech” would insult his audience, he “means that such an argument would insult his listeners’ intelligence as well as their knowledge, since the self-evident fact – of another human’s inherent liberty – is not worthy of any thinking human’s deliberation and attention” (Baer 77). Douglass engages in a performative speech act because, in speaking, he demonstrates that the bigoted attempts to limit his speech are logically unsound (as in, you can’t try to deny someone basic human rights on the grounds that they’re subhuman when they’re standing right in front of you using human language to make an elegant argument). It is a genius move of rhetoric, but it is inescapably linked to its social context and the equation of freedom of speech with the necessity of coming to the table as equals, both of which are points that modern-day free speech absolutists miss.

I know I’m relying a lot of Baer but I think his take on this topic is brilliant. To reiterate, Baer writes that Douglass “exposes the absurdity of expecting some people’s speech not to be measured on the strength of their argument but on whether they qualify as fully human” (77).

And that brings us back to the modern-day context. The concept of free speech is only meaningful if we don’t restrict who can participate based on inalienable or inherent qualities of their personhood. If the very premise of your speech is rooted in “ignorance, insecurity, and unreason” – as Baer argues racism is, in a discussion of author Toni Morrison’s take on the topic – then you will inherently “undermine the conditions for equal and open exchange central to a university” along with other places (80). If your speech is based on dehumanizing others, then it automatically disenfranchises those people, and disqualifies them from engaging on the same level as you; this is exactly the same as inviting Douglass to debate his own humanity. It’s preposterous.

So yes, we get to restrict freedom of speech at least in terms of who gets access to which platforms if those speakers are making tiresome and illogical arguments based on the racism, misogyny, and homophobia of decades and centuries past. Not only is it a yawn-fest (no new ideas there!) but it’s also insulting and dehumanizing to potential audiences, and as seen above, the ability to engage in free speech rests on acknowledging that free speech must be rooted in equality. And I do mean “we” in that first sentence: I’m not going to invite a guest speaker into one of my college classes if they seem likely to not only insult my students but also deny them basic humanity based on whether they’re trans or Jewish or disabled. We’re all adults, we can get over being insulted… but as a guardian of education, I am not going to allow a speaker to mock and debase the very existence of those under my tutelage, and as Baer and others argue, this is a valuable gatekeeping function that university administrators serve when they say “yeah no, we’re not going to host that alt-right speaker at an official university event.” It’s protecting our students, and it doesn’t make them weak snowflakes but rather affirms their basic right to engage in speech and debate that starts at the insultingly low bar of “We’re all human here. Okay, moving on…”

To quote Baer again: “You may be refuted in a debate because your arguments are weak, wrong, or badly phrased, but you must not be excluded a priori based on whether or not you count as fully human” (80). And I think this is where a lot of the friction in contemporary free speech discussions comes in: folks who are more attuned to equality and basic human rights (I guess we’re labeled social justice warriors or SJWs? as though that’s a bad thing?) are not interested in the arguments of bigots. Bigots tend to dehumanize people, which cancels out the function of free speech since it creates a mockery of the whole thing, asking someone to come to the table and justify their very being. This doesn’t make bigots inhuman, it makes them bad humans, and yet in the attempt to have this type of conversation, to say “wow, no we are really not interested in the bullshit you’re spewing,” somehow that gets twisted into “we’re judging you and think you’re subhuman and hence we’re taking away your free speech rights.” Which, let’s recall, is not what’s happening: denying someone a platform is not the same thing as oppression, which would look more like jailing them or something similarly drastic.

In the interest of wrapping this post up, I want to revisit the idea of gag rules. Earlier I mentioned the pre-Civil War agreement to not talk about abolishing slavery. That type of gag rule is not uncommon in the U.S., despite many people’s belief that we’ve always had this angelically perfect implementation of the First Amendment. Here are a few brief examples of suppressed free speech in the U.S., both then and now:

  • The Comstock Act, passed in 1873, banned U.S. citizens from distributing information about contraception, and the U.S. Postal Service helped enforce this law, helping send people to jail who were guilty of disseminating “obscene” information that included basic manuals of sex education and erotica; it was on the books for decades without much fuss (more info on this university’s page; I’ve been meaning to write my own blog post about it too!)
  • The Global Gag rule, also known as the Mexico City policy, prevents foreign organizations from receiving U.S. aid if they even provide information about abortions (more info at the Planned Parenthood page on the topic)
  • The “Don’t Ask Don’t Tell” rule prohibited U.S. military members from disclosing their sexual orientation if it was not heterosexual… seems like a free speech restriction to me? ( has a fascinating history of it here)
  • In 2018, a Supreme Court ruling “affirmed the right to restrict language on abortion in faith-based clinics even when they receive public funding” (Baer 110)

The maddening thing? The support for this suppression is usually coming from folks who would scream “First Amendment!” if their attempt to verbally trample on someone’s humanity was denied. Sorry, maybe that’s just me being cynical. But the hypocrisy is evident when, as Baer explains: “By prohibiting speech about a legally permissible procedure, they are doing exactly what they decry as unconstitutional when a college declines to host a white supremacist” (110). How conservatives deal with the mental acrobatics of cognitive dissonance when suppressing free speech on allegedly religious grounds is beyond me, especially given that the U.S. hypothetically promotes a separation of church and state (and I have yet to see many anti-abortion arguments that are not rooted in religious belief).

To recap: freedom of speech is only meaningful when all can be equal participants. We need to not rely on abstract ideas about the nonexistent universality of the freedom of speech, nor assume that the “marketplace of ideas” will govern the exchange equitably, not assume that reason and truth will magically enforce themselves. Don’t take this to mean that I’m in favor of censorship – I’m not! – but rather that certain platforms require certain guidelines, and academic/intellectual/educational ones in particular benefit from a bit more guardianship so that we don’t willy-nilly let in alt-right speakers who will dehumanize our students to their faces and thereby eject them from having a seat at the table of learning. Baer has a ton more to say about this in particular but don’t worry, I’m done quoting my newest BFF, this post doesn’t need to be any longer than it currently is.


(also, shout-out to the reading group on academic freedom at Butler University, which provided me with this book and with many instances of intellectual companionship and challenge that were thought-provoking, useful, and enjoyable)


Baer, Ulrich. What Snowflakes Get Right: Free Speech, Truth, and Equality on Campus. Oxford University Press, 2019.

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