GOVT 2301

The Freedom of SpeechAnd Public Opinion

This is the first of three sections which outline the nature of the

external political pressures imposed on governing institutions.

These are the big three

Public Opinion The Media

Interest Groups

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.

Let’s recall the language of the First Amendment.

“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:

Frank LuntzFraming

Free Speech Freedom of Speech

IdeologyIrrational Public

Blog Labels:

Is the American Public Rational?Marketplace of Ideas

Political IgnorancePolitical Knowledge

PollsPublic Opinion

Topic #1

The development of freedom of speech

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.

Cato’s Letter #15

Argued that the freedom of speech is inseparable from public liberty

“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?

One proposal:

John Stuart Mill’s Harm Principle.

In On Liberty, Mill argues against censorship

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

How does the court determine what speech is acceptable and

what speech is not?

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.

For examples of recent controversies see the First

Amendment Center.

Here are three:

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.

Other topical disputes:

Hate SpeechSpeech Codes

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.

The tyranny of the majority may be the most vicious one of all.

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.”

Majorities can suppress minority, or unpopular, opinions.

Intimidation.

Public opinion can be dangerous.

Next Topic

What is the content of public opinion?

How do we know what that content is?

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.

Second: What role is public opinion supposed to play in a democracy?

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.

Words Matter:

The Language of Health Care 2009

“Abuse of words has been the great instrument of sophistry and chicanery, of party, faction, and

division of society.”

- John Adams

Frank Luntz

The Language of Health Care The Language of Financial Reform

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.

Recall this quote from Alexander Hamilton presented in the first set

of power points in this class:

“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

Think about it: Why do you have to take this class?

Education or Indoctrination?

Perhaps my purpose is here is to convince you to accept the

governing regime.

(I’m such a tool)

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.

Examples of Political Generations

Silent GenerationBaby BoomersGeneration XThe Millenials

Schools

The Media

How are opinions measured?

How do we know what people think?

By looking at public opinion polls.

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.

What can go wrong?

Bias

Question WordingQuestion Ordering

TimingIncorrectly Drawn Sample

Framing Effects

A good resource for information from various polls:

Pollster

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?

Schema Theory

“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.

Stereotyping

“ . . . 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.

This means that different groups in society develop different attitudes

about the same things.

Race makes a difference when questions are asked about racism.

The same is true for sexism.

Opinion Leaders

It matters where information comes from.

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.

Question: Do we really have a full range of debate about ideas and

values?

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.

Are certain ideas uniquely American?

The Unalienable Rights?

Popular SovereigntyDemocracy

Self RuleIndividual Rights

Individual FreedomEqual Opportunity

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”

John Adams did not think so either.

“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

Does the public have factual knowledge of politics, government,

and current events?

Poll results suggest that they do not.