This is the text of a speech Judge Silberman delivered Sept. 2 at Dartmouth College, his undergraduate alma mater.
This is a Constitution Day talk. So I will address one of today’s most contentious constitutional subjects—the First Amendment’s protection of free speech. As I noted in a recent opinion, the First Amendment’s guarantee of free speech is not just a legal doctrine. It represents the most fundamental value in American democracy. A national commitment to uninhibited political speech is a crucial aspect of our country’s culture. It is the penumbra around the First Amendment, which, by itself, only prohibits government control of speech. Unless all American institutions are committed to free political speech, I fear the strain on the First Amendment’s guarantees will become unbearable.
Those seeking to suppress free speech sometimes think that provocative, even extreme and obnoxious, political speech is dangerously divisive. It should be suppressed. I think that is profoundly wrong. I think it is the very opposite. Toleration of all versions of political speech is the crucial unifying factor in our country.
Some years ago, I was ambassador to Yugoslavia, a communist country where freedom of political speech did not exist. I had a small fund with which I could send promising young intellectuals to the United States in the summer. Yugoslavia, then a county of six separate ethnicities, was threatened by centrifugal ethnic forces (which ultimately resulted in six separate nationalities). The government sought to squelch talk that threatened Yugoslav unity.
One intellectual that I sent to the United States came back and expressed wonderment that our country—composed as it is of the descendants of an enormous number of nationalities—could nevertheless enjoy such a uniform commitment to shared values. I explained that we swore allegiance not to a sovereign nor a blood grouping, but rather to a legal document—the Constitution. And nothing in that legal document was more important than the First Amendment. Protection of the speech of fellow Americans, even the most provocative and unpleasant, reflects a fundamental tolerance for all Americans.
I was often obliged to explain the First Amendment to the Yugoslavs who demanded that I restrain the
criticism of their government. Their eyes would glaze over during my First…
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