The first time that most American children are exposed to the idea of free speech is in the aftermath of a painful experience. Some other child has uttered a cruel insult and an adult will teach the hurt child the famous rhyme: Sticks and stones may break my bones, but words will never hurt me. The rhyme has an admirable aim of teaching children an important lesson about free speech: that there is a difference between words and physical violence, and how in a free society, the proper way to respond to hurtful words is with more words, not by lashing out with violence. While they will later receive further education about free speech and the First Amendment, this rhyme is the foundation upon which our shared understanding of free speech is built.
But this rhyme might well be the most ridiculous lie we ever tell children. Of course words can hurt. Some of the deepest, most lasting wounds are inflicted with words. The apostle James warns of the potentially destructive power of words:
Look at the ships also: though they are so large and are driven by strong winds, they are guided by a very small rudder wherever the will of the pilot directs. So also the tongue is a small member, yet it boasts of great things. How great a forest is set ablaze by such a small fire! James 3:4-5 (ESV).
Do we honestly believe that children are naïve enough to believe that words can never hurt? Would we ever want a child to believe this? And yet we continue to use this rhyme to introduce children to the concept of free speech.
Is it any wonder that with such an absurd foundation, many people end up rejecting free speech and calling for the censorship of disfavored speech? If your core understanding of free speech is that words will never hurt or cause harm, yet you constantly see that words do in fact hurt and cause harm, then it makes sense to either: (1) conclude that protected free speech does not actually include any hurtful or harmful speech; or (2) reject the very idea of free speech as irrational nonsense.
The most obvious example is the movement to criminalize so-called “hate speech,” but this is hardly the only example. Trump’s insistence that he would “open up our libel laws,” or that the FCC should revoke the licenses of broadcasters who publish “fake” news both reflect a view that speech should only be “free” so long as it does not hurt or cause harm (as Trump sees it). Ditto for the dozen Democratic Senators who demanded that the FCC investigate whether it was in the “public interest” (as Democrats see it) to allow Sinclair Broadcasting to retain its licenses.
It is now commonplace to hear progressives complain about how the right has “weaponized the First Amendment,” causing the progressive agenda to flounder in court. As one law professor put it in this article:
Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to sympathize with the speakers or believe that speech in general was harmless. But the claim that speech was harmless or causally inert was never true, even if it has taken recent events to convince the left of that. The question, then, is why the left ever believed otherwise.
This perfectly illustrates the problem with the Sticks-and-Stones understanding of the First Amendment: if you believe that the underlying rationale of the First Amendment is that speech is harmless and therefore shouldn’t be punished, you will eventually come across speech that you don’t view as harmless, and if this speech is not in fact harmless, then it obviously can’t be protected by the First Amendment. Invariably, the speech that you view as harmful will just so happen to overlap with the speech that you disagree with. Your own speech, of course, could never be harmful.
The Sticks-and-Stones model of the First Amendment is, in fact, completely backwards. The underlying rationale for the First Amendment is not that speech is harmless, it is that speech is one of the most powerful forces known to man. Speech can change the course of history, it can bring empires crashing down, it can shake the foundations of the world. The First Amendment exists because we believe that words and ideas are far too powerful to leave under government control. We may be willing to entrust the government with a monopoly on the legitimate use of violence, but we dare not allow anyone to monopolize the use of words. If you feel the need to replace the Sticks-and-Stones rhyme with a catchy phrase which will help children understand the foundational importance of free speech, then one is readily available: the pen is mightier than the sword.
The tyrants of the world have long been aware of this, which is why they invariably try to control speech. While there are a depressingly large number of people who have been silenced, imprisoned, or killed for daring to speak out against their government, in the long run most attempts at censorship are unsuccessful. Ultimately, individuals will find a way to express forbidden ideas. One need look no further than the tragicomedy unfolding in China, where government censors are scouring the internet in a vain attempt to remove all references to that fount of sedition known as Winnie the Pooh.
Indeed, attempts at suppressing speech often backfire, generating greater sympathy and support for the “harmful” ideas that the censors were trying to suppress. Prior to the Civil War most Southern states attempted to censor and suppress abolitionist speakers and literature on the grounds that it would incite a slave insurrection. Southern states indicted and issued arrest warrants for abolitionist publishers in the North, and Southern congressmen demanded that the Post Office refuse to distribute abolitionist publications. Far from harming the abolitionist cause, this censorship caused many Northerners, who otherwise might have remained ambivalent about slavery, to turn against the South because of the threat slavery posed to free speech in the North. The issue of Southern censorship of abolitionist speech was so controversial that by the time that John C. Frémont ran as the Republican Party’s first presidential nominee in 1856, the party’s campaign slogan was “Free Soil, Free Speech, Free Men, Frémont!”
Of course not all speech is good speech. Just look at the millions of victims of the writings of Marx, Lenin, and Mao. It is certainly tempting to think that maybe, just maybe, if socialist, fascist, and Nazi writers had been censored before their vile ideologies could take hold that millions of lives could have been saved. Yet history does not support this argument. Imperial Russia was certainly no haven of free speech, and the pre-revolutionary government did all it could to censor socialist thought. As former ACLU president Nadine Strossen explains in her new book:
Proponents of “hate speech” laws assume that the enforcement of such laws might have prevented the spread of Nazi ideology in Germany, but the historical record belies this assumption. Throughout the Nazis’ rise to power, there were laws on the books criminalizing hateful, discriminatory speech, which were similar to contemporary “hate speech” laws. . . . The German “hate speech” laws were enforced even against leading Nazis, some of whom served substantial prison terms. But rather than suppressing the Nazis’ anti-Semitic ideology, these prosecutions helped the Nazis gain attention and support.
Strossen goes on to explain how modern hate-speech laws are far from effective, but instead they actually promote repugnant ideologies by giving them even more attention and allowing vile individuals to cloak themselves with the mantle of free-speech martyrdom. The pattern is clear: attempts to censor speech that is viewed as being harmful or dangerous are ultimately ineffective and counterproductive.
The power of speech, however, goes far beyond the ability to simply withstand censorship. The true power of speech is that it can actually change minds. And it isn’t just my speech that can change other people’s minds. The speech of others can, if I dare let it, change my own mind. Speech can inform me of things that I am ignorant; it can correct me when I am mistaken; it can point out the flaws in my logic; it can challenge my preconceived notions; it can cast down my most cherished beliefs; it can attack the failings in my character; it can make me a better man. This process is not pleasant, and these words can indeed hurt me, but it would be folly to fight against it. There is no governmental power, even in the most totalitarian of states, which can match this power of speech. That is why the pen is mightier than the sword.