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Show HINCKLEY JOURNAL OF POLITICS SPRING 2001 critical decisions at the ballot box to guide government in the direction they see fit, and therefore perform their role in the social compact that is the United States of America. I draw support for the first answer from the work of philosopher John Stuart Mill and its applications to the conclusions of the Court in Johnson. In regards to the second, the case law on free speech, and its interpretations by civil libertarian Alexander Meiklejohn demonstrate the essential role free speech plays in the fulfillment of civic participation under the U.S. Constitution. Regarding the first answer, the search for truth requires an environment that tolerates and welcomes dissent. Mill notes that "the will of the people...practically means...the majority," and that "these people...may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power" (Mill 1978, 4). This forms the basis for the idea of majority rule with minority rights, that government cannot coerce people to accept one view. Mill continues by saying that the public good "authorizes the subjection of individual spontaneity to external control, only in respect to those actions of each, which concern the interest of other people" (Mill 1978, 10). By saying this, Mill sets up a dichotomy in the realm of speech: because the goal of society is to maximize utility, the majority can curtail any speech that harms other people (regarding the Johnson case, the flag was stolen, and there was some destruction of property such as overturning potted plants, in which case charging the violators with theft or vandalism would be an appropriate course of action). With regards to the propensity of speech to cause harm, the Supreme Court's ruling in Brandenburg v. Ohio (1969) provides the proper rule: "[The Court's] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (Brandenburg v. Ohio 1969, 447). Otherwise, the individual can engage in any opinions they wish. The Court reflects this idea in its analysis of whether Johnson's act was "a breach of the peace," in which case, harm would have been done to others. Since it was not, Mill would argue that the Court not uphold the conviction. Furthermore, the Court ruled against Texas' argument that they could arrest Johnson to "preserve the flag as a symbol of national unity," justifying Mill's idea that "there needs protection against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose...its own ideas and practices as rules of conduct on those who dissent from them" (Mill 1978, 4). This is crucial because society may not "fetter the development.. .of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own" (Mill 1978, 5). Opponents of flag burning would criticize this, arguing that within a democracy, if the majority of the people want a ban, then that should become the law. However, "those who have been in advance of society in thought and feeling.. .have occupied themselves...in inquiring what things society ought to like or dislike, rather than in questioning whether its likings or dislikings should be a law to individuals" (Mill 1978, 7). The principle of individual rights, and therefore minority rights means "that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others" (Mill 1978, 9). Finally, Mill explains why freedom of opinion is so important to the exposition of truth: every opinion has intrinsic value, and is meaningful in and of itself. If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind...the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it (Mill 1978, 16). The only way we can move towards discovering truth is to constantly temper widely regarded ideas by exposing them to disagreement, and to let the best idea win. It is important to keep dissent alive for the good of humanity, because "however unwillingly a person who has a strong opinion may admit the possibility that his opinion may be false, he ought to be moved by the consideration that however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth" (Mill 1978, 34). In the end, the exposition of truth culminating in the fulfillment of human potential is the motivation for Mill's emphasis on the necessity of dissent and free discussion of ideas. Regarding American society, Alexander Meiklejohn argues that "no one can deny that the winning of the truth is important for the purposes of self-government. But that is not our deepest need...If men are to be their own rulers...whatever truth may become available shall be placed at the disposal of all the citizens of the community" (Meiklejohn 1948, 88). Although finding truth is important, the First Amendment's primary role "is a device for the sharing of whatever truth has been won. Its purpose is to give to every voting member of the body politic the fullest possible participation in the understanding of those problems with which the citizens of a self-governing society must deal" (Meiklejohn 1948, 88). This supports my second contention, that unabridged free speech is vital to fulfill the Constitution's principle of self-government. The crucial role voting plays in self-governance provides the basis for an unalienable right to free speech. While Mill's development of truth hinges on the right of the speaker to express opinion, Meiklejohn's argument goes further by asserting the necessity of the public to hear and evaluate those opinions. "When a free man is voting, it is not enough that the truth is known by.. .some scholar or administrator or legislator. The voters must have it, all of them" (Meiklejohn 53 |