When Freedom Becomes a Barrier to Justice

They “turned my life around,” former Georgia election worker Wandrea ArShaye Moss told Congress last year, referring to racist abuse and death threats she received from people convinced she participated in a conspiracy to deny Donald Trump a victory in 2020.  While government can prosecute violent threats to election workers, the sheer volume of harassment and the fact that much of it is protected as free speech means not much success has been achieved in stopping the abuse. Indeed, according to the Brennan Center, 45 percent of local election officials said they feared for their colleagues’ safety and 11 percent said they’re likely to leave their posts before the 2024 election.

Freedom is not an unqualified good though it is rightfully celebrated. For many Americans, the Declaration of Independence elevates freedom as the end of government, but the founding generation didn’t see it that way. They knew freedom could also be dangerous. The Preamble to the Constitution doesn’t use the word freedom but focuses instead on the need to “establish Justice.”  James Madison, writing in Federalist Paper #51 to defend the Constitution in the ratification debates, reminded us that “justice is the end of government.”  We have Supreme Court Justices and a Department of Justice.  It’s hard to argue that using freedom of speech to threaten election workers is promoting justice.

Achieving a balance between freedom and the need to restrain it is essential, if often difficult.  When we fail, justice – what we often understand as fairness - loses.  Some examples illustrate this:

·       Free-Speech Harassment:  Free-speech doctrine has enabled those who engage in email and social media threats, trolling, doxing and shaming to often succeed in silencing the voices and behavior of those trying to do their jobs and live their lives without fear.  

·       The Wealth Gap: Free market capitalism has enabled concentration of great wealth in a relatively small number of corporations, financial institutions and billionaires.  The gap in income and wealth between them and typical Americans has contributed to the inability of many to earn a livable wage, rise above poverty, gain affordable health care and avoid massive medical debt, get a good education and prepare for a secure retirement.   

·       Campaign Finance: The free speech right of some individuals and corporations to donate almost unlimited funds to political campaigns, often masking their identity, greatly magnifies their voices above other Americans. The few become grossly over-influential in what is supposed to be broadly representative government.  Elected officials depend upon, grant access, listen to and may then act on behalf of wealthy donors and their interests, often at the expense of the majority and the public good.

·       Political Speech: The free speech right of candidates, public officials and their supporters to lie and disseminate disinformation and fake news, almost always Constitutionally protected, leaves most Americans overwhelmed with falsehoods and pollutes the playing field of public policy.  Reasoned debate and building a just society struggle under this weight.  A group in Northern Virginia, for example, put notices on homes telling people that if they don’t vote, they will lose government benefits.  They vow to ignore a “cease and desist” order from the State’s Republican Attorney General claiming they have a “free speech” right to distribute this false information.

·       Market Freedom in Advanced Technologies: In the age of the Internet, social media and artificial intelligence, the private sector has considerable freedom (more so than in the European Union, for example)  to develop and use advanced information technologies.  New uses have come so rapidly that they exceed the ability of government to understand - and thus far the willingness to regulate - them in the public interest.  Such tools are being used to capture private information for corporate use, produce fake news and guide people to extreme and dangerous material, polarize society and foster conspiracy theories.  Artificial Intelligence (AI) is developing so rapidly that even its creators worry about its impact on the public good. 

When freedom is abused by some it diminishes freedom for others.  Americans who live in fear, on poverty’s edge, unable to defend themselves against lies and with their voices overwhelmed by the power which wealth provides, are only nominally free.  Freedom implies the ability to choose, but when choices as a practical matter don’t exist, freedom vanishes and justice too often along with it.  We should recall that the Pledge of Allegiance calls for both “liberty and justice for all.”  The last three words are the mark of a good society.

It is tempting but wrong to place all the blame for the failure to “establish Justice” on the wealthy, powerful and/or unethical few.  No doubt our legislators should act: more and better laws and regulations are needed.  Yet, when an excess of freedom hinders justice we must look to ourselves as well.  Our best tools are our voices and votes. When they are silent, we sacrifice freedom by inaction and justice becomes more a hope than a reality.

Photo Credit: www.askdifference.com