Liberty, Tyranny and License: Tracing the Roots of America’s Free Speech Debate

Ben Crenshaw [00:00:00]:

So it's a lie. That's not the American constitutional tradition. That's not the American political tradition. It's a total inverse and reversal of what the founders believed and what they practiced for hundreds of years. I mean, blasphemy laws continue well into the 20th century, not always enforced, but on the books. And there was an understanding there that like there was this, the civil law element of it, and then there was the law of fashion, the kind of the decorum, you know, and these work together, but all that's been reversed.

Jim Spiegel [00:00:30]:

Welcome to the Kalos Center Podcast. Welcome to another episode of the Kalos center podcast. Today we'll hear part two of my conversation with political scholar Ben Crenshaw. Previously, Ben and I discussed the impact and significance of the Charlie Kirk assassination. Here in the second half of our conversation, we'll turn our attention to a different but somewhat related issue of the right of free speech. So the problem essentially, if I can kind of paraphrase what you've said, is that the critical attitude towards cancel cultures has been too, it's too broad of a brush, that not all, let's say, laws of fashion are equal. It's one thing to cancel, terminate professionally, discipline someone because they have been mocking Charlie Kirk, his mourners, his widow celebrating his murder. And then it's quite another to fire someone because they have declared publicly that there are just two genders.

Jim Spiegel [00:01:39]:

Right. People getting fired for asserting just basic biological facts that even a six year old kid knows. So let's be properly nuanced when it comes to our assessment of people and the claims that they make and how in which laws of fashion are observed.

Ben Crenshaw [00:02:00]:

Yeah, that's correct. There's not only no moral equivalency between the two sides. There's no biological equivalency, historical equivalency, natural, divine, theological. You take every single category and you could just go right down the line and say the left has just propagated lies, falsehoods, radical ideas totally out of step with what was considered to be, you know, beyond question just 25 years ago, 50 years ago then, that was known for hundreds and thousands of years. So yeah, there is no symmetry or equivalency here. And I think we have to hammer that point home.

Jim Spiegel [00:02:43]:

All right, so let's get to the foundation, the conceptual foundations of this talk about what exactly the constitutional right of free speech is and what are its proper limits.

Ben Crenshaw [00:02:55]:

Okay, this is a huge topic. I will not be able to do it just. But I'll try to outline it a little bit for the audience. So the constitutional right to free speech, you have to really, what you have to do here is you have to do American political philosophy before you can do constitutional law. The Constitution comes later. It's a reflection of the American political thought. So let me outline a couple of different kind of, I would say six ideas, main ideas that the founding generation in America, you know, their consensus on speech. And it was first that there is a natural right or a fundamental right to non injurious speech.

Ben Crenshaw [00:03:31]:

So there's a default that we are speaking creatures and we should be able to speak. We have to speak. This is in many ways what makes us human. Speech, reason. And I'll come back to this in a minute. And so we should be able to speak but in a non injurious way. But on the flip side, government is therefore obliged to either discourage or limit or punish injurious speech. So there comes a question of what is non injurious speech versus injurious speech.

Ben Crenshaw [00:04:00]:

And I'll return to that. The third thing is that if government punishes injurious speech, they have to do so through due process of law. So it can't be capricious. It has to be by kind of the judicial principles that were both inherited and then articulated in the state and the federal national constitution. So if someone accuses you of speaking injuriously, you are charged and found guilty. Well, that whole process has to happen through court, a jury of the trial of one's peers, you're presumed innocent, and so forth and so on. In addition, government can't impose prior restraints on speech, meaning an entire like licensing regiment that says, you know, we are going to punish you or restrict you before you do something bad to prevent you from doing something bad. That gives too much power to the government to abuse regulation of speech.

Ben Crenshaw [00:04:55]:

So really, government, I mean, governments can certainly set out the boundaries of what's considered injurious speech. And then, you know, but it can only have power after the fact to correct those who break those laws. The fifth thing is that private associations have a lot of freedom to limit or to dictate the speech within their private associations. So there is a distinction between the power of government and the power of private associations. And in this sense, private associations are considered in certain ways as being like individuals. So there's collective individual or a, you know, company is a public person, something like that. And then the last thing is that government as kind of a property owner has the same free speech rights as a private association. So that kind of like that's the.

Ben Crenshaw [00:05:45]:

In many ways, the philosophy and the. The core here is in the Constitution, it deals. You know, what's the first word of the First Amendment? Congress. So the. The first thing is that the. The First Amendment free speech clause restricts Congress only. And so we're dealing with a federal structure in the United States, which we have to always make originally within the Constitution. You have to make a distinction between the national government and the state.

Ben Crenshaw [00:06:11]:

State government. And the national government and state government basically had, you know, different jurisdictions, different limitations, different privileges or prerogatives. So Congress could not restrict, kind of blanket. Restrict the speech of everybody in the nation, even if state governments were given more leeway to do that in particular moral cases. But what's really key here, Jim, is that the right to free speech in the Constitution, the national Constitution and the state constitutions was primarily conceived of by the founders as being a political right, meaning it was the right to gather in political assemblies, to articulate common causes and ideas, to petition your government, to elect your representatives, for your representatives to be able to speak without prohibition in their assemblies. And what you find over and over again, especially in the state constitutions, is something like, say, New Hampshire's Constitution of 1784 says this. The freedom of deliberation, speech and debate in either house of the legislature is so essential to the rights of the people, then I cannot be the foundation of any action, complaint or prosecution in any other court place whatsoever. And this is repeated in Massachusetts, Pennsylvania, Maryland, Delaware, Kentucky, Tennessee, Ohio, Michigan, all their early state constitutions.

Ben Crenshaw [00:07:37]:

It was conceived as fundamentally as a political right to be able to speak and act together as the people, and especially people's representatives, to not be gagged and their legislative houses from speaking openly and debating issues. Now, there was also kind of a concomitant private right of free speech and private society. And you find this in a few constitutions like Vermont and so forth. But it's important that. To recognize that the First Amendment and the constitutional right to free speech first of all only limits Congress. It does not necessarily limit the states, and it's focused on political speech because Congress has jurisdiction over kind of the great and national things of all the people and all the states together. It's kind of. It's more explicitly a political constitution for their national life together.

Ben Crenshaw [00:08:29]:

Whereas the states reserve what was known as police powers, this health, safety, morals, religion of the people were left to the states to regulate. So the national government's not going to get into state economic affairs, not going to regulate the religion of the States, it's not going to deal with, you know, tort cases at the state level and so forth. So the states, most of the legislation and the life of the people was handled at the state level. So that gives you kind of like the broad overview. And I'll say a couple of the things before we can get into maybe, you know, more properly what is, what is the limits of the right to speech. And that is that the founding generation always made a distinction between liberty and license. So you talk about the freedom of speech, liberty of speech, and of the press. What do they mean by liberty? Well, they said on the one hand you can have tyranny and the other hand you can have license.

Ben Crenshaw [00:09:22]:

License is a form of tyranny. So traditionally tyranny was an external form of coercion or oppression that took away someone's freedom, restrained you, priorly oppressed you, threatened to, you know, very harshly punish or kill you if you did something. That's one form of suppression, oppression and tyranny. The other form though, is if you go, if you give too much freedom, it's really not giving too much freedom. The founder's understanding of liberty is really kind of a recipient, helium, golden bean, in which if you go too far one way or the other way, you get excess that turns into a vice. It's not really too much freedom. You can't have too much freedom. If you have true freedom, you can push it to its ultimate maximum and always be good and beautiful and moral and ordered and you can be as free as you can possibly be and it'll be wonderful.

Ben Crenshaw [00:10:11]:

That's the kind of freedom God has. But it just colloquially we could say too much freedom leads to license. And that is when you are a slave to yourself, to your own passions. And there is no restraint, there's no internal restraint. And the founders would say this kind of freedom is not freedom, it is a self slavery. And their basic formula was that a republican government, small R Republican, meaning a government by the people, which there's a consent of the people and a close connection between the people and the representatives. You cannot have a republican government form of government without virtue in the people. And you cannot have virtue without religion, without true piety, without understanding that I have.

Ben Crenshaw [00:10:58]:

I am not just a material being. This is not just methodological naturalism and public atheism. But I am created by God. I have a soul. My soul will live afterwards. There is a supreme God of the universe who will judge me. There is a reward and punishments in the afterlife. This is not the only life that there is.

Ben Crenshaw [00:11:15]:

So they would say, you need that at least that the very minimum, that understanding of religion or Christianity in order to have true virtue, in order to have kind of self government that wells up from within that leads to true liberty and not license and not tyranny. So this applies to every single right that they talk about in the Constitution, the bills of rights, whether it's the US Constitution or the state constitutions, every conception of liberty. You know, conservatives in the 20th century would call it ordered liberty, the common contemporary term on the right. They didn't really, they didn't talk that way, just talked about true liberty or moral liberty or Christian liberty. They even use the term Christian liberty. And so to wrap up this section, like, they made a distinction between liberty and license or liberty and tyranny. And this applies to speech. And so this is why they said, well, certain kinds of injurious speech either fall into tyranny on the one hand or license on the other.

Ben Crenshaw [00:12:15]:

Neither one of them is liberty. Neither one of them is true speech. And so now we have to, we have to figure out what is the standard for tyranny and license. And then, you know, what specific areas did they call injurious speech?

Jim Spiegel [00:12:30]:

Okay, that's helpful. So with that in mind, particularly given the very wording of that First Amendment, you know, the. That Congress shall make no law that abridges that freedom of speech, among other things. Do you think that this right is right now in our country, in our contemporary moment, under an especially great threat? And if so, why do you think that's the case?

Ben Crenshaw [00:12:57]:

Yes, I do. And this is why. When you look into what the founders believed was a true freedom of speech, they first of all did not believe that government ought to regulate for truth versus error. It's not just like, well, if you say something false or if you're philosophizing about an error or falsehood or something like that, if you write a treatise and it turns out to be completely wrong, then you can be censored. The standard was not just like bare truth or falsehood. No, the standard was specific areas that were false that were injurious. So this included seditious libel, criminal conspiracy. No people, no person in a civil polity has a right to turn the people against their own government if that own government is something that they have consented to and they have established they agree with and want to live under.

Ben Crenshaw [00:13:50]:

So every government by definition, has an interest in preserving itself. Seditious libel can be prosecuted by the national government or by state governments. Criminal conspiracy can be speech that involves conspiring with others or encouraging others to commit crimes. That's illegal at both the national and the state level. In terms of the specific areas where states originally had domain that included personal libel. So they thought that a person's reputation was in many ways equal to their life. If you slander and destroy a person's reputation in public, you may make it that their wife divorces them on the basis of a slanderous falsehood. Their children might disown them.

Ben Crenshaw [00:14:29]:

They might lose their job and their livelihood. They could be dispossessed, and, you know, they might kill themselves. So you don't have the right to maliciously and intentionally slander someone and say falsehoods about them that can be treated in state court. You could bring a charge against somebody also blasphemy. Blasphemy against God. Intentionally. Not just writing a public treatise like Thomas Paine did on the Age of Reason or the Rights of Man, in which you're debating with others about the nature of God in relation to humans and civilization and so forth. But no, like the malicious intent of deprecating and impugning the religion of the people by saying things that are.

Ben Crenshaw [00:15:12]:

That are clearly offensive to the people and false. There's. In my American Reformer article, I touched on a couple cases where you can see this in Massachusetts and New York, Pennsylvania, and then just generally, obscenity, pornography, malicious speech. So all of these areas, they thought none of these were protected under free speech, not at the national level, not at the state level. So what has happened. What's happened is basically all of that's been reversed. And, you know, some of it comes through, you know, political movements in the 20th century. A lot of it comes through, you know, Supreme Court cases and jurisprudence, some of it through, you know, say, the work of Rawls and other, you know, kind of secular political philosophers.

Ben Crenshaw [00:16:00]:

And what we have today is kind of this absolutist concept of speech. According to what we might call John Stuart Mill, no harm principle. And we use the same terminology, like injurious versus uninjurious speech. Harm, not harming. But I mean, you know, this. This basic libertarian principle is so watered down to just like, if. If speech meets the level of basically criminal conspiracy, leading immediately leading to the physical harm of someone's body, that's the only time in which you can intervene. Blasphemy has been eliminated as a standard of injurious speech.

Ben Crenshaw [00:16:38]:

Obscenity wiped away. In the 1966 case of Memoirs vs. Massachusetts, the Freedom of the press of speech there originally it was that the press had. The freedom of the press, or the right of the press to speak was predicated upon their good intention to seek the truth and to kind of like, get to the bottom of the issue publicly for all sides involved. And so it was actually their burden to show that their speech was not intentionally malicious, was not a false statement for the purpose of propagating a falsehood in public. But the New York Times Company versus Sullivan case in 1964 reversed the burden of proof. Said now, no, the public official who is being, you know, told a falsehood by, you know, the. Some reporter somewhere, they have the proof to show that there's some kind of actual malice standard on the part of the reporter.

Ben Crenshaw [00:17:33]:

And to prove an actual malice is virtually impossible. How can you get inside someone's psyche and say you knew that it was false when you said it? Of course, the reporter could always come back and say, oh, no, I really thought it was true. I didn't know it was false. So in many ways, the court has reversed the freedom of speech, moral standard, real true liberty standard, the freedom founders believed into what we call free expression. I want to make this point. This is really important. The founders understood speech in terms of the Aristotelian category, the ancient Greek category of logos. Speech is reason.

Ben Crenshaw [00:18:07]:

It is in many ways the connection between the divine and the human. And what Aristotle said distinguishes man from the beast is not just that he has noise. He doesn't just have free phone. Phone is just communication noise. Animals use noise to communicate with each other all the time. No man has logos. He has this capacity to make moral distinctions between what is good, what is evil, what is profitable, what is unprofitable, what is beautiful, and what is ugly. And on that basis, the people, in their public deliberation and their common speech, attempt to establish a political commonwealth, not just for the preservation of mere life, but the good life, a life worth living, which is a higher and noble calling according to what is good and what is beautiful and what is truly profitable.

Ben Crenshaw [00:18:57]:

So what's happened is that was the view that the American founders took. They're always talking in moral tones. They're always talking what is good, truly good, what is honorable, what is beautiful. And that standard has been reversed in the 20th century to just mere expression. It's back to an animalistic concept of phone. A just express yourself. This is the expressive conduct that the supreme court talks about. You're just gonna emote, passion, whatever.

Ben Crenshaw [00:19:25]:

I can say it. And they said, no, this is what The First Amendment protects. So it's a lie. That's not the American constitutional tradition. That's not the American political tradition. It's a total inverse and reversal of what the founders believed and what they practiced for hundreds of years. I mean, blasphemy laws continue well into the 20th century century, not always enforced, but on the books. And there was a understanding there that like there was this, the civil law element of it, and then there was the law of fashion, the kind of the decorum, you know, and these work together.

Ben Crenshaw [00:19:58]:

But all that's been reversed. And so what we have now is we have license. We just have nothing but license, which is a form of slavery to self. And like you knew, all you got to do is rebookate a Plato's Republic. And you know, once you have a democratic man who is full of passion and licentiousness, what comes after that Tyranny, the rule of the tyrant. These people are unable to govern themselves and so they must have a master to rule over them. That is what's at stake here. We're losing our ability to have self government, constitutional government, and we are moving into the realm of having to be ruled by a tyrant to control us because we have no control over ourselves, our speech, our political institutions.

Ben Crenshaw [00:20:37]:

That's what's at stake.

Jim Spiegel [00:20:40]:

Yeah, and at the same time that you have this kind of extreme license understanding of free speech, you have people making very strong case defenses of the idea of some sort of federal ministry of information or misinformation is very Orwellian. And you know, that's focused on truth or falsehood or truth as understood by, you know, particular regime, which is just, you know, I mean, that is certainly the face of tyranny as well. So my next question for you is, you know, what can we do as Christians living in this republic to guard and preserve the right? I think what you just laid out is something that in one form or another, all Christians or defenders of just, let's say a truly historically based, faithful to the Constitution and our founding principles, concept of what free speech actually is and be able to articulate that and identify where we have gone wrong in our contemporary times here in America. It's really, it's sad and frightening actually, because as you know, we are trending not just in this area, but in other areas as well, towards something tyrannical. And you know, may God help us to avoid that. I want to conclude just by asking a couple of questions that are more personal for you as a Christian political scholar. Do you see your work as A political scholar as a divine calling. And if so, how do you specifically want to act on that calling?

Ben Crenshaw [00:22:19]:

Yes, I do. And the reason for that is I have been steeped in New England election sermons from the 17th and 18th century. For the past few years I've been working on my dissertation which deals in 18th century religion and politics. And what you find is the American political tradition viewed government as a divine ordinance from God. And if you go back to Calvin, he talks about the two kingdoms, the civil political realm on the one hand, and the church on the other. Martin Luther talked about the three estates, the family, the church and the civil government. So this is a very reformed view, that God is actually established different orders of government and associations among men for their well being and their flourishing. And the civil government is not just a mere creation of man.

Ben Crenshaw [00:23:06]:

It's not just a contract in which the will of man obtains or rules. It's not just a form of conventionalism all the way down. And we can do whatever we want as long as we agree to it or consent to it. That's kind of a bare consent standard, which is a perfect version what the founders believe. No, they said government itself, the very office, the very purpose, the ends of government is ordained of God. And they went right to Romans 13 and just like always, exegeting Romans 13:1 8, always, always, always. And the civil officials are diaconate, they are deacons, ministers of God, they fulfill his will. And not to say that this puts them the divine stamp of imprimatur on every single political ruler like Nero or whoever, but it's to say that the office, the purpose, the origin of the office and its ends have a divine approval and origination and order in society.

Ben Crenshaw [00:24:05]:

And so when I as a Christian, you know, I'm part of the local church believer since I was a young kid, saved by grace through faith, continually being refined through Christian discipleship. I am a Christian, I'm a part of the church. But I do all my work in official, scholarly and professional work in civil government. But to me it's not. It's another divine ordinance of God. And it is for man's well being. You cannot have a good society, a peaceful society, a well ordered society, or even a good life without civil order, without civil order, you have anarchy, you have chaos, you have a strong man that arises or some kind of tribal feuding. And with too much, you know, with wrongly ordered civil power, you have tyranny.

Ben Crenshaw [00:24:53]:

So on the one hand you either have the state of mankind before the flood, everybody did what was right in his own eyes and they all killed each other. Or you have Babel. After the flood, all mankind got together and tried to create a tyrannical and imperial order that would reach up to heaven and make man God. No. God said, I'm going to call Abraham and I am going to make your name great. I'm going to make you into a great nation and your descendants great through you. God's purpose for civil government. I really think the biblical teaching is that it's a kind of nationhood or nationalism of sorts, in which each people will have an ordering that is commensurate with who they are, their geography, their language, their way of life, and so forth.

Ben Crenshaw [00:25:37]:

So I do think of my work as being part of a divine calling because I work as a Christian in the ecclesiastical, you know, with the realm of ecclesiastical government, but I work in civil government. Both of these are divine or ordinances and offices created by God for the flourishing of humans.

Jim Spiegel [00:25:57]:

That's really good. All right. So the question I like to conclude all our conversations with is the most broad and really the ultimate question for all of us. Whatever our walk of life is professionally, whatever our personal interests are, and that is, what is your view of the meaning of life? And how has your professional work, how does it aim to work out that conviction in practice?

Ben Crenshaw [00:26:26]:

Yeah, this answer goes along with what I was just saying in many ways. Yeah. I mean, the meaning of life, it's a life well lived. It's a life of human excellence for God's glory. Both, you know, how we're distinct from the animals and we're distinct from God, but we are called to be recreated in Christ's image. And Christ is truly man and truly God. And so we are in many ways called to not just human excellence, but a kind of a divine calling, a divine excellence as well. And so, you know, this can be lived out in many different areas of life, many different professions, whether you're married or unmarried, whether you live on this continent or that continent, or speak this language or that language.

Ben Crenshaw [00:27:10]:

So I certainly think that there's many expressions of a life well lived to the glory of God. But in terms of my work, you know, I, you know, there's. There's always this tension in Christianity and politics of, well, aren't you paying too much attention to the temporal realm? Don't you care too much about public utilities and not about the gospel? Like, why aren't you preaching the gospel? Why aren't you concerned about heavenly things? I mean, like, these are light and temporary matters. Paul Tells us there's eternal glory. Why aren't you focused on that? That's a true. That's what a true Christian would do. Eternal glory. Be focused on those things.

Ben Crenshaw [00:27:48]:

A heavenly perspective. And my response is, yes, in a sense. But also, you know, Christ was incarnate. He came to earth. He lived as a human being. He cares about our bodies. We are not divided persons between the body and soul. And it's not just that we will die and go to heaven.

Ben Crenshaw [00:28:07]:

Our soul will survive the body. It's that Christ will come back, the new Jerusalem will come back. There'll be a new heaven and a new earth, and we will live a heavenly, corporeal, incarnate life on this earth. And where you were faithful with little, now you will be entrusted faithful with much. Then. So there will be civil government in heaven, there will be civil order. And so the work that I do now is not unrelated to the reward that happens then. You know, it's not.

Ben Crenshaw [00:28:34]:

To say that if you were impoverished and it was tyranny and war, civil war and bloodshed and famine and your wife and children are killed and you're ground to the dust, that you can't still live a good life pleasing to God and you know, not curse him to your dying breath, and God will reward you. It's true. But that is not, you know, that is not what God wants for us. You know, he wants us to flourish. He wants us to have the experience, abundant life, the fullness of life. And that includes having things like civil peace and functional families and robust churches and running water that's clean and doesn't kill us. I mean, all of these things, they're all of this tangible and enfleshed way of living. This is all part of God's created world.

Ben Crenshaw [00:29:22]:

He wants. The creation is groaning and he wants to restore it. And I see my work in civil and political philosophy and government as part of that vision of restoring God's creation, of tasting a little bit of what we will know in full in the life to come. So I think that these things go together. I think that this is the reformed tradition. It's the American political tradition. I see no conflict or contradiction between them. I'm neither a pietist nor am I some kind of immunization of the eschaton.

Ben Crenshaw [00:29:57]:

You know, adherent. You know, it's not. It's not abandoning life now for, you know, some spiritual existence only, nor is it trying to bring heaven to earth is a. There's a middle ground. There's a way to hold these together that A lot of my work is articulating and showing how this can be done the healthy way, both biblically and historically and politically in the American tradition, because I think Americans got it right for a long time.

Jim Spiegel [00:30:23]:

That's great. And it's hard not to see the point you just made so. Well, powerfully endorsed by the very life of the Son of God. Right? When. When Jesus came to earth, he spent apparently most of his adult life doing. Well, he was a carpenter. So whether he was a woodworker or a stonemason or both, he spent many years doing this, maybe much longer in terms of just the total amount of time that he devoted, you know, to his work, doing these very tangible, practical kinds of tasks to make people's physical conditions better. And it's easy to lose sight of that.

Jim Spiegel [00:31:07]:

But of course, there's a divine point in everything that God does and how much more so in the life that Jesus, the Son of God, lived. So thank you, Ben. This is great. I enjoyed our conversation and I commend you in the work that you're doing. Continue this conversation at another time.

Ben Crenshaw [00:31:26]:

Yeah, thanks, Jim. It was a lot of fun.

Jim Spiegel [00:31:29]:

Thank you for listening to the Kalos center podcast. We gave you our thoughts. Now let us know what you think. Email us at Podcastalos Center.