A Short First Amendment History of the “Citizen-Critic”
The founders of the United States weren’t confused about the necessity of free speech to a free people. After all, the great accomplishment of the American experiment was that the people — not a divinely ordained king or queen — were the source of government, the origin of sovereignty. The freedom of citizens to talk back to the government without fear of reprisal was a freedom virtually unknown in the rest of the world. This idea bears repeating: when the drafters of the Bill of Rights put pen to paper, the right of citizens to criticize the government was a relatively new idea in human history. In the First Amendment to the U.S. Constitution, however, the citizen-critic was born.
Although the First Amendment’s originators never mentioned the citizen-critic by name, they spoke of right and necessity of citizen speech to a democracy. James Madison proposed that the Bill of Rights should protect the right of the people “to speak, to write, or to publish their sentiments.” George Mason, who penned Virginia’s Declaration of Rights, advised that “the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick [sic] governments.” And Thomas Jefferson was clear that citizen silence was not an option in the new nation: “The basis of our governments [is] the opinion of the people, [and] the very first object should be to keep that right,” he wrote in a 1787 letter. “[W]ere it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I . . . prefer the latter.”
Over a century after the First Amendment’s ratification, the United States Supreme Court in New York Times v. Sullivan called the “citizen-critic of government” by name and described her constitutional duty. The Court specifically said that the citizen-critic had a “duty to criticize” as part of a “profound national commitment that debate on public issues should be uninhibited, robust, and wide-open.” If it wasn’t clear before, it was clear now: the Constitution required the citizen-critic.
So, who is the citizen-critic? If you met her, how would you know it’s her? The United States Supreme Court, since the 1920s, has been sketching the citizen-critic’s portrait.
First, Supreme Court opinions tell us that the citizen-critic is concerned about expressing reasoned viewpoints on public affairs. In his Whitney v. California concurrence, Brandeis said that the founders had “confidence in the power of free and fearless reasoning” to avert evil through the “discussion [of] the falsehoods and fallacies” of arguments on matters of public importance. And while the critic’s expression of “sentiment” was important to Madison, Justice Brandeis called the critic’s attention to using “the power of reason as applied through public discussion.” Taken together, Madison and Brandeis tell the citizen-critic to not only opine, judge, and feel, but to do so by listening to others’ views, giving reasoned arguments, and exercising informed judgment.
Second, the citizen-critic spurs discussion among others. Justice Brandeis wrote in Whitney that “the greatest menace to freedom is an inert people.” Public discussion, he said, is how to check the “tyrannies of governing majorities,” and these discussions “free men from the bondage of irrational fears.” Imposing silence, he recognized, “discourage[s] thought, hope, and imagination.” The Supreme Court in Sullivan, citing Learned Hand, also reminded that “right conclusions are more likely to be gathered out of a multitude of tongues.” The citizen-critic, then, places a high value on public discussion. He is unafraid of starting a conversation to get those tongues wagging. He is committed, as was Thomas Jefferson, to public debate, replacing fear with hope, inertness with imagination, silence with solutions.
Finally, the citizen-critic often dissents. Being a critic almost always puts one in the position of disagreeing, identifying flaws, pointing out problems. And, on issues of governance, critique almost invariably translates to dissent. The Supreme Court has pointed out that dissent, however, is critical to getting to the best ideas for governance. “[T]he best test of truth,” said Justice Holmes in his 1919 dissent in Abrams v. United States, “is the power of the thought to get itself accepted in the competition of the market . . . [W]e should be eternally vigilant against attempts to check the expression of opinions we loathe.” Moreover, the dissent of the citizen-critic is important to preserving the rule of law in times of public controversy and conflict. Citing its prior opinions, the Court in Sullivan said that “the unfettered exchange of ideas” is essential to “government [being] responsive to the will of the people [so] changes may be obtained by lawful means.” As such, a citizen-critic can be recognized by her willingness to dissent for the purpose of lawful change.
In a face-to-face conversation or a public speech, “hello, my name is . . .” is the opening gesture. This opening reflects the speaker’s desire to be known to her audience, to be named for who she is, to bring herself existence, to establish common ground for beginning a relationship. And so, with that, I introduce you, reader, to Citizen-Critic: a citizen committed to the First Amendment duty to engage in vigorous debate, thoughtful conversation, reasoned judgment, active listening, necessary dissent, and imaginative analysis.