Perhaps I should tell you why I am discussing freedom of speech in such general terms and outside the bounds of my expertise. I am working my way toward addressing this question: Is a Christian school possible in the United States of America? Can an institution possess both the qualities that are expected of K-12, college, or university education and be thoroughly Christian? Or have government law and regulation, the courts, lack of qualified faculty, accrediting bodies, and progressive culture made it impossible?
Defining Freedom of Speech
What is freedom of speech? Clearly, this First-Amendment right does not merely point out that we have the power to speak, to say something in front of others. This mistaken view lies in the background of such statements as this: “Well, you have freedom of speech, but you have to take the consequences.” No, in the context of the First Amendment, “freedom of speech” means first that you have a right to speak without fearing consequences emanating from the Federal Government. The Federal Government will not suppress speech within its sphere of authority. Second, the government will not allow any private person or entity to forbid or punish speech within public spaces. The Fourteenth Amendment (1868) applied all the rights mentioned in the Bill of Rights to the states. Hence the right to freedom of speech applies to all spaces regulated by governmental authorities, federal, state, and local.
Not being a constitutional lawyer, I do not want to venture too deep into the legitimate limits that the courts have established on speech: libel, sexual harassment, conspiracy, incitement to violence, yelling “fire” in a crowded theater, etc. The courts do not think the kinds of speech covered by the First Amendment is limitless. However, it seems that for the most part governments at all levels limit speech that is inextricably associated with or used as a means for carrying out acts that are crimes considered apart from speech. The Bill of Rights does not cover such acts. But as the recent controversy over “disinformation” concerning COVID, election fraud, and climate change demonstrates, any attempt to limit speech opens the door to censorship, suppression, or cancelation of speech. Who decides what disinformation is and when it merits criminalization?
Duty to Listen?
Clearly, your right to speak freely does not entail a duty for others to listen or to remain silent while you speak. No one who gives a talk in a public space should expect the government to punish people who refuse to attend or walk out angrily or Boo or in some other way protest. Government must protect the personal safety of the speaker, but it cannot guarantee the respect of the audience. For freedom of expression applies to audiences as much as it does to speakers. The right to speak can be granted, but the right to be taken seriously has to be earned.
Free Speech in Private Spaces?
I want to emphasize strongly that freedom of speech applies only to forums legitimately regulated by government and only to government action. The First Amendment does not guarantee your right to say what you please in wholly private spaces. (It does, however, protect you from acts that cause bodily harm, from robbery, theft, etc., even in “private” spaces.) As the clearest case, consider how things work in your private dwelling. We expect to be able to invite guests into our houses according to our personal preferences and refrain from inviting those with whom we do not wish to associate. We demand freedom to invite only people with whom we agree politically or religiously. If someone we invite into our homes begins to speak in ways that we do not like, we claim the right to ask them to stop or leave our house. In doing this we have not “abridged” their freedom of speech, because this First Amendment right applies only to public spaces and restricts only government action.
I think most people would agree that common spaces—such as courthouse steps, public sidewalks, town hall meetings, public parks, and other publicly owned areas—should provide maximum freedom of speech. In contrast, in wholly private spaces—private dwellings, churches and other spaces owned by private associations—speech may be regulated by the private entity that owns and regulates that space. In these spaces, governments may neither abridge nor protect speech.
The In-between Spaces?
What about all the spaces in between the town hall and your house, the quasi-private, quasi-public spaces? What about businesses, educational institutions, political parties, political action committees (PACs), clubs, guilds, labor unions, churches, religious and non-religious non-profit organizations, and a host of other corporations, institutions, and associations?
I think I am safe in assuming that the right to freedom of speech applies to corporate entities in the same way it does to individuals. After all, in addition to “freedom of speech,” the First Amendment declares that the people have the right “peaceably to assemble, and to petition the Government for a redress of grievances.” A corporate entity may speak freely in its bylaws, policies, constitution, advertisements, code of ethics, declaration of principles, or statements of political and religious or moral advocacy. The government must protect the corporate entity’s speech from violent suppression by the public and refrain from abridging its speech by threatening or enacting punitive government measures.
One huge difference between corporate entities and individuals affects the way the right to freedom of speech applies to them. An association, a club, or an educational institution usually contains many individual members. Do those individuals possess the First-Amendment right to free speech inside the space controlled by the corporate entity? Or, does the school or business or club have the right to control speech within its own space? As examples, does the First Amendment apply to students while on campus, employees in the workplace, or individuals present at club meetings? How far can the government go in regulating the internal affairs of a private association?
The Ever-Expanding Government
Since the end of the American Civil War (1865), the federal government has steadily expanded its reach into daily life and hither to private corporate spaces. The pace of expansion quickened in the twentieth century and reached warp speed after WWII. The civil rights laws passed in the 1950s and 60s dealt primarily with race, but they have been steadily expanding so that today the list of protected groups, according to the Equal Employment Opportunity Commission (EEOC), includes, “race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability and genetic information (including family medical history).” Federal, state, and local governments have grown quite creative in finding ways to bring ostensibly private associations under its anti-discrimination, free speech, anti-harassment, and other regulations. It seems that almost any interaction an association has with a government entity or the space it regulates provides an excuse to regulate that association. Of course, it is impossible to exist in the world as an association or even as an individual without interacting with government-regulated spaces!
If it were not for the First Amendment no space would be off limits to government regulation. Let’s read it again:
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.
Applying the Bill of Rights to Associations
As I argued above, these rights apply to corporate entities as well as to individuals. The corporate application is obvious in the establishment and free exercise clauses. But it is also clear in the references to freedom of the press and of assembly and of the right to petition the government. Except for freedom of speech, these protected activities are most naturally exercised by associations—churches, publishers, trade unions, and corporate entities of many kinds. The tension between individual rights and corporate rights is deeply embedded in the history of moral and political thought. And much of that history has been taken up with seeking the proper balance between the two.* It seems to me that since WWII the American public, politicians, legislators, and the courts have tilted the balance toward individual rights to the point of almost destroying the rights of private associations, businesses, clubs, and educational institutions to create and maintain their distinct identities and pursue their unique missions.** Indeed, most people are so focused on individual rights that it would never occur to them that the Bill of Rights applies to associations as well as to individuals.
As I stated above, my concern in this series is with the question, “Is a Christian school possible in the United States of America?” The American government’s war against private associations’ discrimination toward individuals on the basis of the characteristics listed above—race, color, religion, sex, pregnancy, sexual orientation, gender identity, national origin, age, disability, and genetic information—has had the effect of disempowering Christian schools and other Christian non-profit organizations of the ability to craft a distinctive Christian identity, govern their internal affairs, and pursue their mission energetically. At some point, those students and faculty that are no longer committed to the Christian identity and mission of the school insist that their individual rights take priority over the institution’s rights to maintain its Christian identity and mission even if their insistence destroys the institution. And the government, the public, and the courts always take their side in this struggle. It is almost as if destroying Christian institutions is the goal. Perhaps it is.
*I am now reading an excellent history of moral and political philosophy that details this story from around 1610 (Grotius) to 1800 (Kant): J.B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge, 1998).
**Some readers may object that we live in an age of group rights in opposition to individual rights. I do not believe this is the whole truth. Indeed, individuals are often treated as members of a protected group when being considered for admission to a college or for employment. This factor sometimes outweighs scholastic achievement, experience, or other merit-based considerations. Still, members of protected groups are treated as individuals who possess certain traits on the basis of which schools and employers must not discriminate and to which they may even give preference for the sake of equity. They are not treated as associations, clubs, corporate entities. Hence my point stands: in contemporary society individual rights trump corporate rights.
To be continued…