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Value of free speech

On Wednesday evening, I attended the third annual RealClearMedia Samizdat Prize Gala in Palm Beach, Florida. RealClear, whose brands include its flagship RealClearPolitics website, is best known as a content and polling aggregator, and as an advocate of political and ideological diversity. Pursuant to that mission, the Samizdat Prize recognizes and honors leading champions of free speech from across the ideological spectrum. This year, the prize was given to longtime Harvard Law professor Alan Dershowitz, Irish-born comedy writer Graham Linehan and Turning Point USA founder Charlie Kirk. (Kirk’s award was, of course, posthumous.)

I am grateful to RealClear for their regular publishing of my weekly column and appreciated the spirit of the event. Still, I was troubled by some of the rhetoric that I heard throughout the evening when it comes to the issue we had all congregated to celebrate: free speech.

In his introductory remarks, my friend David DesRosiers, the publisher of RealClearMedia, criticized the Trump administration’s prosecution of former CNN personality Don Lemon for his much-covered recent storming of a Sunday church service in Minnesota, framing it as a journalism and free speech issue. Later in the evening, Dershowitz stridently defended the fundamental transgender claim that a man can become a woman or a woman can become a man; when booed for suggesting as much, he said it was OK to disagree on this because we all have our free speech — as if that is the single highest and most important value upholding American society.

But is it?

The foremost goal of politics, since time immemorial, is to best pursue and realize the common good. Free speech certainly has “some” intrinsic value, as one good in the broader basket of goods constituting the common good. But free speech has even more value not as an intrinsic matter but as an instrument used toward other substantive ends.

In the words of the Constitution’s common good-oriented Preamble, it is the “Blessings” of Liberty to ourselves and our Posterity” (emphasis added), as opposed to liberty qua liberty, with which “We the People” are chiefly concerned. Those “Blessings” are realized, for example, by practicing biblical religion and exercising virtue. This explains why, in the First Amendment text, the two religion clauses come before the free speech clause. The actual “first” liberty in the Bill of Rights is religious liberty — not free speech. And we have myriad federal laws, such as the Bill Clinton-era FACE Act that Lemon seemingly violated, that reflect our collective value judgment about the supreme importance of free religious exercise.

The free-speech-as-highest-good view also misunderstands the purpose of free speech in a free society at an even more fundamental level.

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