Due Process and Free Speech – Part 1

You can’t support one without the other -- and without either, there is only dictatorship.

We all have access to more information on the internet than ever before, yet debates continue about who can say what about all that stuff.  In this series of essays, I’ll explore the mutually reinforcing justifications for the two bedrock cornerstones in the foundation of our democracy – due process and free speech – and describe why you cannot support one without the other, and you cannot reject either without also rejecting the very prospect of a society organized largely by reason, not force.

“Due process” is the concept that rejects punishing people without giving them a reasonable chance to present the evidence in their defense.  Just about every moral philosophy that accommodates pluralism (that is, a state of things in which different views  can coexist) supports due process, be it the Golden Rule (treating others like you’d like to be treated yourself), Kant’s “categorical imperative” (act only on those rules that you would want in good faith to apply to everyone else as well), or various forms of utilitarianism (rules should be supported only insofar as they redound to the greatest good for the greatest number).  Without due process, pluralism would be replaced by dictatorship in some form, and dictatorships only end up benefiting the dictators.

How did the concept of “due process” evolve, and what does it have to do with free speech?  Let’s start with due process.

John V. Orth has written a nice, slim volume called “Due Process of Law: A Brief History.”  In it, Orth writes:

[W]hat is required by the constitutional guarantee of “due process of law”?  The phrase appears twice in the U.S Constitution – in the Fifth Amendment in the Bill of Rights, which prohibits the federal government from depriving any person of “life, liberty, or property, without due process of law,” and in the Fourteenth Amendment, adopted almost one hundred years later in the aftermath of the Civil War, which extends the same prohibition to the states: “No State shall … deprive any person of life, liberty, or property, without due process of law.”  What exactly does due process require?  General words remain only abstractions until applied in specific cases; maxims or paradigmatic cases can help bridge the gap between general and specific.

American law grew out of the English tradition in which judges would take general principles and apply them to the specific facts regarding disputes between the individual parties in the case before them.  Over time, the repeated application of the same principle to a variety of different facts would help crystallize what a general principle really meant and give people a much better sense of how the courts would apply the general principle in new cases going forward.  As Orth writes of the “due process” concept’s development in England:

In its English origin the guarantee of due process (or the law of the land) was a restraint on the sovereign: before King John or his royal officers could take action against a person, certain procedures had to be followed, procedures designed to ensure fairness.  Fair procedures are still at the heart of due process today; in modern parlance they are often expressed by the somewhat different phrase, “the rule of law.”  Although a number of elements constitute the rule of law, the procedural essentials can be encapsulated in the requirement of an accessible, impartial, and effective decisionmaker or, to put it simply, a good judge.  Can a law make a man a judge in his own case?  The question can be used to test the procedural fairness of any legal system by highlighting one of its most essential features, whether cases are decided by an independent decisionmaker, one with no personal stake in the outcome and no fear of retribution from the powers that be if the case is decided one way or the other.

Orth described how the concept of due process was at first reduced to the rule that a person should not be a judge in their own case, and he comes back to that concept again and again:

Perhaps the most fundamental maxim in describing the essence of due process is the case example of a person serving as a judge in their own case … Making a man a judge in his own case was a bad thing, all could agree … Judging required a degree of impartiality, and a judge with a stake in the outcome of a case would necessarily be too involved to be impartial.  “Il n’est pas permis au plus equitable homme du monde d’etre judge en sa cause” (the fairest man in the world is not allowed to be a judge in his own cause), Blaise Pascal observed in his famous Penses (1670).  And James Madison in the justly celebrated Federalist No. 10 declared that “no man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”

The specific case that started it all under the English tradition involved a Dr. Thomas Bonham in 1610.  As Orth writes:

Bonham was charged by the Royal College of Physicians with practicing physic [medicine] in London without a license.  As permitted by its royal charter, which had been repeatedly confirmed by acts of Parliament, the college tried Bonham in its own court.  Finding him guilty, it imposed a sentence of fine and imprisonment, and as permitted by its charter it proposed to pocket half the fine … Carefully reading the charter, the court [whose Chief Justice was Sir Edward Coke] found that the college was not in fact empowered to imprison for unlicensed practice but only for malpractice [that is, practicing medicine negligently], which had not been alleged, and ruled in Bonham’s favor … Although technically the question of Bonham’s fine was not before the court, Coke addressed it anyway, acidly commenting that the physicians “cannot be judges, ministers, and parties; judges to give sentence or judgment; ministers to make summons; and parties to have the moiety [half] of the forfeiture.”

This principle was considered so fundamental to any justifiable system of government that, Orth writes, “According to his own account, Coke had told King James … that even a king was unfit to judge a case between himself and his subjects.”  (Similarly, it’s worth noting that the Royal Society of London for Improving Natural Knowledge, the premier scientific organization headed by Sir Isaac Newton from 1703 to 1727, had the motto “NULLIUS IN VERBA,” Latin for “Take Nobody’s Word for It.”)

Recently, a particularly sharp breach of due process norms occurred when the chairman of a committee of the U.S. House of Representatives announced that their investigation would result in recommendations that the Justice Department file criminal charges, but upon questioning the committee chairman admitted they didn’t have any particular person to charge in mind as of yet.  The committee chairman’s comments were: “We’ve not made a decision as to who, but we have made decisions that criminal referrals will happen.”  As James Freeman writes, “Americans reasonably expect their government to identify a specific crime before suggesting charges,” let alone a specific person.

That core principle of due process was fleshed out over time to include the procedures that would prevent people from being the judge in their own case:

Due process still forbids, and always will, unfair procedures.  Although the paradigm of making a man a judge in his own case is rarely heard of these days, the underlying concern remains vital.  Corrupt, partial, or fearful decision makers cannot dispense justice and are not even properly called judges … In America, at least, courts had the power to prevent legislatures from making a man a judge in his own case … Procedural due process, far from being a mere requirement of technical fastidiousness, retains the potential to unsettle the powerful.  In 1970 in Goldberg v. Kelly, the U.S. Supreme Court was asked to rule on what a state had to do before it could cut off welfare benefits to the indigent.  Due process requires a hearing, the Court said, and spelled out exactly what that means: (1) adequate notice, (2) an opportunity to be heard, (3) the right to present evidence, (4) confrontation of opposing witnesses, (5) the right to cross-examine those witnesses, (6) disclosure of all adverse evidence, (7) the right to an attorney if desrived, (8) a decision based solely on the evidence produced at the hearing, (9) a statement of reasons for the decision, and (10) – of course – an impartial decision maker.

We see here the crucial link between the principles underlying due process and the principles underlying free speech: just as one should never be a judge in one’s own case, one should also never be the judge of another’s case and limit their right to speak. (Indeed, as Voltaire pointed out, when it comes to speech with which you disagree, there is no logical reason to ban it because there are much less restrictive means of protecting yourself.   Said Voltaire, “Does a book displease you?  Refute it. Does it tire you?  Read it not.”)

The great English nineteenth-century philosopher John Stuart Mill, in his book On Liberty, presented a compelling defense of freedom of speech, making four main points, as follows.  He wrote:

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true.  To deny this is to assume our own infallibility.  Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied.

Here, the connection between due process and free speech becomes clear.  As Mill writes, restricting other’s ability to speak “assumes our own infallibility” in argument just as dictators assume infallibility for themselves in government.  Since no one is really infallible, both free speech and due process must be protected.  Doing so will allow more truths to be uttered, and that’s good because we govern both out individual lives and our collective society better when we are aware of more truths.  Note also that, following this logic, freedom of speech is also essential to progress itself, insofar as progress follows the discovery of more and more truths that build on each other.

Mill continued:

Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds.  And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession … preventing the growth of any real and heartfelt conviction, from reason or personal experience.

Here, Mill is saying that even if the speech challenging a prevailing notion is false (and the prevailing notion is true), if speech challenging the prevailing notion is never allowed, then people will soon forget why the prevailing notion is true because it will longer have the backdrop of falsity behind it that reveals the contours of its truth.  Without a backdrop of falsity on which to play off, the truth can’t really be seen, but only reiterated in the abstract.  And unthinkingly parroted prevailing notions that become too abstract can easily lose their meaning, like some modern art that’s so abstract it ends up being hung upside down without anyone picking up on the error.  In that sense, freedom of expression is also essential to confidence, because confidence can only follow from the understanding that one’s convictions are subject to, and can survive, constant challenge.

Similarly, freedom of speech is also essential to our democracy.  It is often said the right to vote is the most fundamental right in our democracy.  That is certainly true in a sense, but it is only part of the truth, because without the right to free expression, we can have no confidence in the results of our democracy.  America’s Founders understood that well.

George Washington and Thomas Jefferson wrote of the importance of knowledge in a democracy.  Washington wrote, “Knowledge is, in every country, the surest basis of public happiness … In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.”  And as Thomas Jefferson reminded us, “Knowledge is power … If a nation expects to be ignorant – and free – in a state of civilization, it expects what never was and never will be.”  James Madison wrote of the inherent connection between free speech, learning, and liberty, writing “What spectacle can be more edifying or more seasonable, than that of Liberty and Learning, each leaning on the other for their mutual and surest support … A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both ... And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

John Adams wrote specifically of his concern for young people in a democracy, and the need to expose them to views they may not already hold, writing that “It should be your care, therefore, and mine, to elevate the minds of our children and exalt their courage … If we suffer their minds to grovel and creep in infancy, they will grovel all their lives.”

Indeed, when university presidents today cave to the demands to suppress speech made by ill-informed student factions, they are not empowering those students, but only making them comfortable in their enfeebling ignorance.  In November 1737, Benjamin Franklin, the publisher of The Pennsylvania Gazette, printed an essay entitled “On Freedom of Speech and the Press.” In which he wrote “An evil magistrate entrusted with power to punish for words, would be armed with a weapon the most destructive and terrible. Under presence of pruning off the exuberant branches, he would be apt to destroy the tree.”  As the Foundation for Individual Rights in Expression (FIRE) writes more recently:

An authority figure given the power to punish someone merely for his or her expression is still a destructive and terrible weapon. Such a censor damages both the life and career of the person he or she victimizes, as well as the larger idea of a free society. A review of FIRE’s hundreds of free speech cases over the past decade and a half shows that both campuses and government are rife with “magistrates” who may not be “evil,” but may be simply self-interested, uninformed, or politically biased. Nevertheless, in “pruning” the branches of expression they see as destructive, they weaken the tree of our fundamental liberties.

In the next essay in this series, we’ll examine the history of free speech.

Links to all essays in this series: Part 1; Part 2; Part 3.