On the Media: Constitutionally Speaking – A Detailed Summary

Released on August 27, 2021, by WNYC Studios’ Peabody Award-winning podcast "On the Media," hosts Brooke Gladstone and Micah Loewinger delve into the complexities of free speech within the American democratic framework. In the episode titled "Constitutionally Speaking," Brooke Gladstone engages in a thought-provoking conversation with Andrew Morantz, a staff writer at The New Yorker. The discussion navigates the tensions between free speech absolutism and the practical implications of the First Amendment in contemporary society.

Introduction: The Paradox of Free Speech

Brooke Gladstone opens the episode by highlighting the seemingly paradoxical nature of America's free speech tradition.

Brooke Gladstone [00:00]: "This week we're talking about free speech, the best bedrock of our democracy. Or is it?"

The conversation sets the stage for exploring whether the ideal of free speech as an absolute right is sustainable or even beneficial in today's sociopolitical climate.

Andrew Morantz’s Challenge to Free Speech Absolutism

Andrew Morantz introduces his critique of free speech absolutism, emphasizing that unbounded free speech can have detrimental effects on society.

Andrew Morantz [03:00]: "I was trying to argue against free speech absolutism. I was trying to say free speech is really important, but we gotta worry about what free speech is doing to us in addition to just protecting it."

Morantz recounts the backlash he received for his views, illustrating the polarized nature of free speech debates on platforms like Twitter.

Andrew Morantz [03:08]: "Arguing not against free speech, which I love and cherish, but arguing against free speech absolutism..."

Philosophical Foundations: John Stuart Mill and the Harm Principle

John Stuart Mill’s harm principle serves as a foundational concept in the discussion, positing that individuals should be free to act as they wish unless their actions cause harm to others.

John Stuart Mill [17:24]: "In his book On Liberty, John Stuart Mill argues for one simple principle, the harm principle..."

Morantz critiques Mill's principle, arguing that speech can indeed cause both individual and societal harm, thereby necessitating a balance between free expression and protection from harm.

Andrew Morantz [18:08]: "I don't think it's the only one. Speech matters enormously, but so does harm. And I think Mill was wrong to think that speech can't cause harm."

Constitutional Tensions: Pre and Post Civil War Amendments

The episode discusses the inherent tensions within the U.S. Constitution, particularly between the First and Fourteenth Amendments.

John Powell [20:11]: "There are inherent tensions in the Constitution between different key rights. ... two conflicting documents that are still in a sense, at war."

These tensions highlight the ongoing struggle to reconcile free speech with equal protection and full participation in democracy for all citizens.

Case Studies: Brandenburg vs. Ohio and Citizens United

Historical and contemporary Supreme Court cases illustrate the evolving interpretation of free speech.

• Brandenburg vs. Ohio (1969): This case redefined the limits of free speech, allowing speech to be restricted only if it incites imminent lawless action.

  Andrew Morantz [25:03]: "Susan Benesh ... showed that Brandenburg essentially enshrined John Stuart Mill's harm principle into law."

• Citizens United vs. FEC (2010): This decision expanded corporate rights to free speech, allowing significant financial influence in political campaigns.

  Andrew Morantz [30:41]: "In Citizens United, the court granted corporations and unions an almost unrestricted right to use their general funds for, quote, electioneering communication."

These cases exemplify the complexities and unintended consequences of free speech absolutism, particularly how it can enable powerful entities to overshadow individual voices.

Dangerous Speech and Its Implications

Susan Benesh, director of the Dangerous Speech Project, discusses how certain types of speech can act as precursors to mass violence.

Susan Benesh [32:02]: "There is a common rhetorical pattern ... accusation in a mirror."

Benesh argues that language designed to dehumanize or threaten specific groups can lead to societal violence and underscores the need for preventive measures.

Philosophical Perspectives: Richard Rorty and Contingency

The conversation shifts to philosophical insights from Richard Rorty, emphasizing the role of contingency in societal progress.

Andrew Morantz [06:23]: "We have to not use that as banisters or alibis for our commitment toward the institutions that we have created. They're fragile."

Rorty’s ideas suggest that societal norms and institutions are not destined for perfection but require active effort and adaptability to maintain and improve.

Eduardo Mendieta [09:10]: "We have to not use that as banisters or alibis for our commitment toward the institutions that we have created."

This perspective challenges the notion of American exceptionalism and promotes a more humble approach to governance and societal development.

The Fragility of Institutions and American Exceptionalism

Morantz and Gladstone explore the vulnerability of American institutions, countering the myth of inherent resilience.

Andrew Morantz [12:19]: "That view worries a lot of people... the idea that the arc of history will just naturally deliver us where we need to go."

The discussion highlights how critical societal and institutional vigilance is in safeguarding democracy against internal and external threats.

Modern-Day Implications and Future Directions

The episode concludes with reflections on how changing societal norms and redefined free speech principles could shape the future.

Andrew Morantz [50:15]: "This is how a guy who was an analytical philosopher starts writing utopian sci-fi fiction..."

The conversation emphasizes the need for a paradigm shift from individualistic free speech to a more collective approach that prioritizes societal well-being and protection from harm.

Conclusion: Reimagining Free Speech in Democracy

Brooke Gladstone and Andrew Morantz wrap up the episode by contemplating the future of free speech and democratic institutions. They underscore the importance of balancing free expression with safeguards against harmful speech to ensure a healthy, functioning democracy.

Andrew Morantz [51:13]: "I don't know about fatally, but it's definitely flawed."

The episode invites listeners to critically assess the foundational principles of free speech and consider necessary reforms to address contemporary challenges.

Notable Quotes:

• Brooke Gladstone [05:07]: "What's the problem with free speech absolutism?"
• Andrew Morantz [18:35]: "I don't know about fatally, but it's definitely flawed."
• John Powell [37:42]: "John Stuart Mill was brilliant, but this is the point that I want to make. He was wrong."

Timestamp Highlights:

• [00:00]: Introduction to the episode topic.
• [03:00]: Morantz introduces his critique of free speech absolutism.
• [17:24]: Explanation of John Stuart Mill’s harm principle.
• [25:03]: Discussion on Brandenburg vs. Ohio case.
• [32:02]: Susan Benesh on dangerous speech patterns.
• [37:42]: John Powell critiques Mill’s harm principle.
• [50:15]: Philosophical musings on societal change.

This episode of "On the Media" provides a nuanced exploration of free speech within the American constitutional framework, blending historical context, legal analysis, and philosophical debate to offer listeners a comprehensive understanding of the ongoing discourse surrounding the First Amendment.