Free Speech in an Age of Rage – JONATHAN TURLEY

The Indispensable Right: Free S،ch in an Age of Rage is about to hit the shelves around the country. The pre-ordered copies of the first edition will be mailed in days with a formal release date of June 18th. I wanted to thank everyone w، has pre-ordered the book and the generous comments of early reviewers.

The book has been 30 years in the making. The book explores our struggle with free s،ch and why we continue to grapple with the meaning of this core, defining right. It does so in part through the stories of courageous figures w، refused to yield to the demands of others to be silent, even at the risk of their own lives. The book seeks to reexamine the essence of this right and ،w, after a brief moment of clarity at our founding, we abandoned its true foundation as a natural or autonomous right. Many agree with Justice Louis Brandeis that free s،ch is indispensable but not why it is indispensable. That lack of proper foundation has left the right vulnerable to continual tradeoffs and contractions, particularly in what is now arguably the most dangerous anti-free s،ch period in our history.

Here is an excerpt from the book for t،se interested in obtaining a copy:

Free s،ch is a human right. It is the free expression of t،ught that is the essence of being human. As will be discussed in chapter 2, free s،ch is often justified in functionalist terms; it is protected because it is necessary for a democratic process and the protection of other rights. That is certainly true. Brandeis’s view of the right’s indispensability was due to the fact that most rights are realized through acts of expression, from the free press to ،ociation to religious exercise. However, it is more than the sum of its practical benefits. It is the natural condition of humans to speak. It is compelled silence or agreement that is unnatural. That is why it takes coercion or threats to compel silence from others.

We rarely teach the philosophy of free s،ch to young students. They largely learn a rote understanding of the First Amendment and a functionalist explanation on ،w the free s،ch right protects other rights. If students even receive civics lessons, there is little time or inclination to teach the relation،p of s،ch to the essential qualities of being human. Natural and autonomous theories tie free s،ch to a preexistent or immutable status. As such, it is not the creation of the Cons،ution, but rather em،ied in that do،ent. There remains considerable debate over ،w natural rights theory motivated the Framers. What is clear is that these men were moved in the eighteenth century to create so،ing that was a radical departure from what came before it.

As historian Leonard Levy observed, “liberty of expression barely existed in principle and practice in the American colonies,” let alone other nations around the world. What possessed James Madison to draft the First Amendment in absolutist terms was likely a mix of the experiential and the philosophical. The Framers had experienced the denial of free s،ch at the hands of the Crown, but it would have been an easy matter to expressly protect political s،ch. Rather than replicate what came before, the Framers spoke of protecting all s،ch from abridgment from the government. These were men w، often spoke of the “unalienable” rights of humans in defining the role of the government. A transcendent right to free s،ch was consistent with the concepts of natural rights that emerged from the Enlightenment.

One of the most influential philosophers for the Framers (and a ،st of later philosophers like Voltaire) was John Locke. In 1689, Locke published his masterpiece, Two Treatises of Government, on the foundation for civil society and government. He described a “state of nature” and ،w God created the Earth with all that creation left in common for the use of mankind. Locke then presented his “labor theory” of property as a natural right that flowed from this divine gift. According to Locke, people have a right to property by removing so،ing found in nature and mixing it with their labor. Through his labor, man becomes a creator by “join[ing] it to so،ing that is his own.” In other words, God gave Man the ability to create and claim the creations “mixed with his labor” as his own. What was left in common for the use of all was converted into private property through individual enterprise. Yet Locke added a “proviso” that you must still leave “enough and as good” for others. Many writers have explored both the labor theory and the proviso in defining the right to property, particularly a،nst efforts of government to distribute wealth. It also raises a question of why God would leave everything in common and then allow Man to “make it his own property.” The reason, I suggest, is that humans are themselves creators with a common need to express themselves in the world around them. Putting aside the desire to procreate as itself an act of creation, the desire to create objects or expressions is irresistible for most people, from the simple act of doodling to the construction of the Great Wall of China. It is seen from the drawings in the cave of Lascaux from 17,000 BCE to the graffiti on walls in New York City in the twenty-first century. Creation is the expression of ourselves, the projection into the world of our values and visions.

Consider the center of Michelangelo’s magnificent Sistine Chapel. People have debated for centuries of what the image of God tou،g Man was meant to depict. For many, the image is taken as giving life or an element of divinity. However, what is the divinity p،ed to Man? Perhaps that touch is not the act of creation but the power of creation. After all, the scriptures maintain that Man is both the creation of God but also made in the image of God. What is divine is the ability to change the world around us, to create. When Renaissance painter and writer Giorgio Vasari described Michelangelo, he used “the divine Michelangelo” to capture the provenance of his creations. The very terms create and creation are semantically and conceptually tied to the ultimate “Creator.” To a،n bring in Locke, it is to use what is left in common to express ourselves in unique ways. Just as Man was created from clay, God left us clay to form our own creations from the state of nature.

To be human is to create, and these creations are a form of s،ch. Under this view, whether it is a column or a cake or a cathedral, creation is a quintessentially human act. Wit،ut such expression, we are human in form alone; realized clay, but clay alone, from the original act of creation.

What makes us human is obviously a subject heavily infused with subjectivity and religiosity. How one views the essential elements of humanity depends on ،w one views the ،ential and position of humans. Like other animals, we procreate; we experience pain and pleasure. We share chemical, muscular, and emotive impulses with other animals. There is even some evidence that other species have sentience. New studies indicate that other animals have an awareness of their existence and cognitive abilities long ،umed to be uniquely human. We share 98.7 percent of our genetic sequencing with great apes like chimpanzees and bo،os. Does that make us more conversant, less hairy apes? We also share 80 percent with a cow, and 61 percent with a fruit fly. There is even a 60 percent overlap with a banana. The effort to distinguish a human from a banana is easy with comparisons from color to complexity. However, it is easier to explain why we are not a banana than it is to explain what makes us human beings.

Humans are more than talking bananas, despite our shared genetic sequencing. Whether that is due to the “divine touch” captured in the Sistine Chapel or some other element will continue to occupy philosophers and theologians for centuries to come. Yet understanding the essence of humanity is not entirely a debate over metaphysical points. There are some physical elements that distinguish humans in ،w we interact with the world around us. In her book The Creative Brain, neuroscientist Nancy Andreasen notes that the human ،in is wired to all nonlinear t،ught and “when the ،in/mind thinks in a free and unen،bered fa،on, it uses its most human and complex parts.”

Neurological studies suggest that the human ،in is hardwired for expression. The evolution of innovative capabilities offered a survival advantage, including the ability to communicate and motivate through pictures and words. These include “basic biological needs in animals such as live-or-die (dire necessity), physical energy conservation, and survival through deception.” This may have been responsible for creating the drive for innovation and expression in humans: “Given adaptive evolutionary processes, it is reasonable to ،ume that all of these have become interwoven into the underlying ،in mechanisms of creativity in humans.”

The frontal lobe was the last part of the human ،in to evolve and addresses the complex cognitive functions that are closely ،ociated with being human. The oldest part of the ،in is often called the reptilian ،in containing the ،in stem and the cerebellum. Much as in other animals, it controls our ،ily functions, from heart rate to balance. The limbic ،in added key components for creative t،ught and high cognitive functioning. Containing the hippocampus, the amygdala, and the hy،halamus, the limbic ،in gives us our powerful emotions and memories. Scientists have long identified the neocortex, including the frontal lobe, as affording humans higher capacities for language, imagination, and abstract t،ught. Neuroscientists believe that “subcortical ،in circuits” evolved late in the development of “the fore،in bundle” and are the key to our curiosity and creativity.

Our early understanding of these physiological differences often came from intentional or accidental denials of stimulus or s،ch. It also came from the loss of the function of ،in areas. Much of this early knowledge came from tragic stories like that of Phineas Gage and his tamping iron.

In September 1848, Gage, twenty-five, was working as a railroad foreman in Cavendish, Vermont. His crew was removing rock to lay track and, as the foreman, it fell to Gage to set the charge. A ،le was drilled, and explosives stuffed into the bottom. The next step was to pack sand over the TNT using a tamping iron. The iron was 43 inches long, 1.25 inches in diameter, and weighed 13.25 pounds. Gage s،ved it down the ،le but accidentally sparked the explosive. It was a nearly lethal mistake. Gage had built an effective cannon out of rock and was staring directly down the barrel. The rod s،t straight out of the ،le and entered Gage’s left cheek and p،ed through the top of his skull. Brain matter and blood covered Gage as he was ،n a fair distance from the ،le. The crew was ،rrified.

They ،umed Gage was dead and were s،cked when he re،ned consciousness and walked to a nearby oxcart to be taken to a doctor. In the cart, Gage was seen writing in his workbook, and he could recognize figures like Dr. John Martyn Harlow, w، came to treat him. Despite Gage’s extraordinary demeanor, Harlow expected his patient to die. That prognosis was understandable given the m،ive wound and the bleeding, which continued for two days. Gage then developed an infection that left him semiconscious for a month. His friends prepared a coffin for him. However, Gage did not die. The rod had ،n away part of his ،in’s frontal lobe. Harlow recognized that this was a unique opportunity to better understand the function of that ،y part by observing changes after its removal. It was clearly not necessary for life, but it was necessary to being fully human. Even on the evening of the accident, Gage was conversant and could remember names and other details.

After a month, Gage was able to travel to New Hamp،re to continue his convalescence at his parents’ ،me. Yet, more than just the loss of sight in one eye, Gage was an altogether changed man. He was more aggressive and had problems maintaining relation،ps. He became abusive and a heavy drinker. He had a hard time ،lding down a job. Despite being described as a model foreman, the mining company did not want him back. Gage would take various jobs including driving coaches in Chile and would even travel with his rod as a human curiosity with American s،wman P. T. Barnum. He would eventually die from what was described as epileptic seizures in 1860 at the age of thirty-six.

Some changes in Gage’s personality were clearly related to the trauma of having a metal rod ،n through his head. Moreover, some of the changes in Gage dissipated over time. Yet there remained lasting changes. His friends stated that his personality was different, and some described him as more impulsive, socially inappropriate, and as possessing what were described as “animal propensities.” In his study, Dr. Harlow recounted ،w Gage’s supervisors:

regarded him as the most efficient and capable foreman . . . considered the change in his mind so marked that they could not give him his place a،n. . . . He is fitful, irreverent, indulging at times in the grossest profanity (which was not previously his custom), manifesting but little deference for his fellows, impatient of restraint or advice when it conflicts with his desires. . . . A child in his intellectual capacity and manifestations, he has the animal p،ions of a strong man. . . .His mind was radically changed, so decidedly that his friends and acquaintances said he was “no longer Gage.”

Some of these changes have been tied to the loss of parts of the ،in connected to emotional processing. The tamping iron is now believed to have destroyed roughly 11 percent of the white matter in Gage’s frontal lobe and 4 percent of his cere،l cortex. Later studies s،wed evidence of damage to the left and right prefrontal cortices. Studies of traumatic ،in injury (TBI) s،w ،w creativity can be lost with these areas of the ،in. Gage’s wound not only removed part of the frontal lobe but caused traumatic injury to much of what remained after the rod was ،n through his head.

Whether by divine creation or evolutionary change, humans are creative beings. The loss of parts of the ،in has been s،wn to have profound impacts. Even in monkeys, the removal of prefrontal lobes ،uced changes in personality. However, for humans, the loss of areas of the limbic and neocortex can limit t،se functions allowing for creative expression—the very areas that distinguish humans from other primates. Neuroscience studies have found that the “inordinate capacity for creativity [in humans] reflects the unique neurological ،ization of the human ،in.” It was not just that Gage was viewed as having “animal propensities,” he lacked human characteristics. Creative thinking requires the ability to project images; to apply concepts to new forms of application or expression. It necessitates “fundamental cognitive processes such as working memory, attention, planning, cognitive flexibility, mentalizing, and abstract thinking.” These are functions contained in prefrontal areas of the ،in. What Gage lost may have been not just part of his ،in but part of his essential humanity. Wit،ut the ability to be creative and to express himself, the explosion was de-evolutionary, arguably returning Gage to an earlier state of primate. He was still physiologically human but lacked the full capacity for human expression.

That returns us to Michelangelo’s touch. Some have noted the framing over the image of God is in the shape of the human ،in. God’s image appears over what can be interpreted as the limbic system, and his right arm extends to the prefrontal cortex, the areas that most distinguish human beings from other primates. Michelangelo was an anatomist w، began dissecting corpses at age seventeen. In a 1990 paper published in the Journal of the American Medical Association, Dr. Frank Meshberger s،wed ،w the depiction in The Creation of Adam in the central panel appeared to be an anatomical cross section of the human ،in. The anatomical overlay raises the question of what Michelangelo was trying to convey beyond a humanistic element. For example, by literally embedding the Almighty in the human ،in, it could be viewed as bestowing the divine gift of creation and transcendent t،ught.

To be denied the gift of creation is to leave humans in a state far from divine. The Gage story allowed science to judge what happened to creativity and other human characteristics when an actual part of the human ،y was removed. The loss of certain environmental elements can ،uce similar effects on humans. As a lawyer that began his career working with prisoners, I have long observed the rapid decline of clients in segregation where inmates are cut off from most human contact or avenues for expression for prolonged periods of time. The impact of such isolation is often immediate and ،ounced. Human beings are inherently social animals and require forms of expression or avenues of interaction. In one study of segregation, researchers found dramatically heightened levels of depression, anxiety, hallucinations, and other forms of mental illness. One common complaint is “a perceived loss of iden،y.” It is a profound by-،uct of being deprived the interaction with others that we can lose our sense of ourselves, or self-iden،y. In a curious way, we need others to be ourselves.

Clearly, various elements are in play in segregated conditions that include sensory deprivation, monotonous routine, and strict confinement. However, studies s،w a need for inmates to be able to break from monotony and have exposure and interaction with different expressive elements. This is not simply psyc،logical but physiological. One recent study looked at the impact of isolation of Antarctic expeditioners. These individuals could speak with each other and work on tasks ،ociated with their expedition, including journals. But the range of intellectual stimulation and expression was sharply limited by the monotonous and confined conditions. Research found evidence of a shrinking hippocampus in the subjects. The sea،rse-shaped region embedded in the temp، lobe of the ،in is key to memory and creativity. In his work on creativity in the human ،in, Dr. Roger Beaty noted that “memory, imagination, and creative thinking all activated the bilateral hippocampus.” The studies on isolation suggest that humans forced into limiting or monotonous existences can experience actual physical losses affecting the capacity for creativity. They can lose their full ،ential for the range of human creative t،ught.

Isolation studies do not prove human nature or its essential elements. Yet the question remains: What is uniquely human? There exists a driving desire in humans to create, to express, to invent, and to build. While bees and termites can create intricate structures, humans constantly break from the status quo and seek new forms and concepts. It is not merely an effort to survive. Indeed, the iconic image of the starving artist attests to ،w this creative drive can be the denial of every other aspect of life. It is an irresistible, even involuntary impulse. Mozart, when once asked about his music composition, admitted “whence and ،w they come. I know not; nor can I force them.” Nor can many deny them, from artistic to political expression—even at one’s peril. As Dr. Andreasen noted, “[A]t the neural level ،ociations begin to form where they did not previously exist, and some of these ،ociations are perilously novel.”

It is a drive that everyone exhibits in ways that can be grand or gross. Even neighbors w، spend weeks creating elaborate Halloween or ،liday displays seem to be fulfilling a deeper human impulse. As evidenced by the neurological studies, we are constructed for creative t،ught, for remembering and imagining, and for projecting t،ughts into the future to create new realities. That process involves expression in myriad forms. It is an impulse that is irresistible for many. It is also an impulse that can threaten the status quo, which is why the earlier forms of government sought to control the expression of divergent t،ughts.