In a way, reading The Indispensable Right[1] by Professor Jonathan Turley is like encountering a prophet from the Old Testament. The prophets were messengers, sent by God, to call His people back to Him after having gone astray; they were tasked with reminding Israel of the covenant by recounting the manifest sins and offences by which they violated it, imploring Israel now to uphold it, and finally proclaiming the blessings God would bestow should the people do so. The prophets were men tasked with the transformation of their nation through the renewal of its ancient promises, securing the future by retrieving the past.
In this book Turley acts as a prophet for the right to free speech. Akin to the divinely inspired men of Ancient Israel, the George Washington University law professor reminds us of the true ground of free speech, recounts the various episodes in our history when we failed to uphold it, implores us to reembrace it during our current age, and proclaims the benefits our nation would reap should we do so. Whereas the Israelites broke the covenant by any number of sins, Turley argues that one particular sin has led Americans to renounce its commitment to free speech: Rage. During numerous ages of rage, Americans have been all too willing to forsake free speech for the golden calves of security and order. Turley maintains that we currently find ourselves in such an age of rage, with his noteworthy examples including the climate of incivility on American university campuses as well as how government agencies and big tech have suppressed various perspectives, and that reclaiming free speech is our only cure. His warning is much needed – and should be welcomed – even if his approach misses the mark.
In our view, The Indispensable Right would have benefited by providing a stronger conceptual account for a robust, natural-rights-based notion of free speech, while also providing an historical basis for adopting such an account.While there is much to appreciate and admire about this project, Turley’s argument unfortunately falls short, both conceptually and historically of such an important theme. Conceptually, Turley posits a binary framework in which free speech is justified either by a positivistic, utilitarian rationale or by a natural right, autonomy-based rationale. By doing so, Turley ignores other justifications for free speech, including what we would call the “natural law” justification for free speech. The failure to deal with this theory, arguably dominant at the time of our nation’s Founding, leaves Turley’s argument truncated and unsatisfying. Furthermore, and this gets to the historical problems with the text, Turley does not engage with the historical scholarship which contends that the natural law understanding of free speech was widespread at the time of the Founding (more on this below). The hypothesis that the classical natural law understanding of free speech was widespread among the ratifiers of the Constitution fits the historical data, which Turley himself does provide, much better than his own libertarian-inflected theory.
Turley is right to say we are in age of rage–and his commitment to address the evils of such an age with discourse is admirable. Nevertheless, the Indispensable Right leaves readers in doubt as to whether the “covenant” he calls us to renew ever existed in the first place.
The False Binary: Functionalism v. Autonomy
At various points throughout The Indispensable Right, it becomes painfully clear that Turley is playing fast and loose with philosophy. Readers should be alerted to this fact within the first few chapters, in which Turley summarizes the entire history of natural law’s bearing on free speech, going from Sophocles’s Antigone (441 B.C.) to Bentham’s utilitarianism (1789 A.D.) in the course of five pages. This condensed history more or less serves as the philosophical bedrock for the rest of this 400-page work, which is insufficient for a reader who wishes to understand the important historical backdrop. What we end up with from Turley’s sprint through history is a set of categories that are not quite up to the task.
As Turley moves into the application of his chosen categories, we see a conceptual framework start developing which limits the possible justifications for free speech to a “clean and cut” binary choice. There are only two options. He argues that free speech can be justified according to either a “functionalist” justification or a “natural right or autonomy based” justification.[2] The functionalist rationale posits the purpose of free speech as enabling “citizens to seek change and perfect the democratic system as a whole.”[3] In other words, free speech is valuable because of the function it serves in fostering a truly democratic system. Turley does not contend that the functionalist explanation is wrong so much as incomplete.[4] He even claims that it is possible and perfectly consistent to “interlace” this rationale with others.[5] Nevertheless, standing alone the functionalist justification falls into a “sand trap” where speech becomes less protected depending on its inherent contribution to participatory or democratic values.”[6] Because the functionalist rationale values free speech based upon its tendency to advance a certain outcome (namely, a healthy democracy), it lends itself to “balancing tests” where speech is protected only to the extent it advances that outcome.[7]
In opposition to the functionalist rationale, Turley posits what we will call the “autonomy” rationale.[8] Turley uses both “natural rights” and “autonomy” to describe this rationale, but we will use the latter term to prevent confusion from what we will call the “natural law” basis of free speech, and to show why Turley’s use of the term “natural rights” is misguided. The autonomy rationale understands free speech’s primary concern as not “protecting democracy,” but rather “protecting ourselves.”[9] Here free speech is justified on the grounds of a Kantian “freedom to make use of one’s reason.”[10] This capacity to use reason is what Turley calls “creativity”; “To be human is to create, and these creations are a form of speech.”[11] Since the end of government, at least under Lockean social contract theory, is to secure natural rights, the autonomy rationale emphasizes “the importance of free speech as not just a protection of good government but as the very purpose of good government.”[12] Therefore, protections for speech cannot “ebb and flow” depending on the speech’s value to fostering democratic discourse.
To understand why this is a false dichotomy, we must clarify what the natural law actually is, since Turley’s limited treatment of it is unfortunately impoverished. While alluding to it frequently, he never defines it. The natural law is not a “trump card” against state action that always and everywhere prioritizes individual freedom. It is not something that maximizes free choice and free speech at the expense of other considerations. It is not something that disregards usefulness or functionalism prima facie from playing a role in defining rights. Rather, it integrates all these considerations into a durable framework that takes its cue both from human nature and the common good.
A Brief “Crash Course” in the Natural Law
According to Greek philosophy and Christian tradition, which are the joint custodians of the natural law tradition, the precepts of the natural law are those that tend toward man’s perfection, which is found by pursuing the good.[13] This is because the good is perfective of man’s nature.[14] The fulfillment of the natural law is “the perfection or full flowering of human nature which [follows] upon a law written into the symphony of being, the law dictating that things grow up, that they throw off the trappings of infancy, that they perfect the latent dynamisms consubstantial with all natures, and that they become themselves.”[15]
Now, man’s perfection is brought about by the inculcation of virtues that actualize his potential, or as Wilhemsen puts it, his “latent dynamisms.” The result is happiness, or as Aristotle calls it, eudaimonia. There is an intrinsic connection between acquiring the virtues and attaining the end of happiness, since living a virtuous life is the inextricable means to attaining that end. The two cannot be separated.[16] These virtues are objective and unchosen by man; they are common to all who possess a human nature. The cardinal virtues are prudence, justice, temperance, and fortitude, and every person must embody these virtues in the way suited to him or her in order to live a fully happy life. Since all actions that bring about these virtues presuppose man having free will, there is an extent to which the natural law protects free speech and rational deliberation, but the scope of these rights is limited. In fact, these rights are limited precisely by whether or not the action that taken under the entitlement of these rights tends toward the acquisition of these virtues, or whether they denigrate them in a given man and his fellows.
The natural law tradition also recognizes that man has duties to his fellow men, since by nature he is a social animal whose highest flourishing, comes from participating in virtuous activities with others. The criterion by which these social duties are determined is the common good, which is briefly defined as the collective flourishing of men who are united together in society in pursuit of a common end.[17] Since each man needs a legitimate sphere of personal freedom to make his contribution to the common good, we can properly say that individual rights are constitutive of the common good, and not just circumscribed by it.[18] The common good necessarily accounts for the concrete social circumstances that men invariably live in and all the reciprocal rights and duties therein entailed, arranging and harmonizing these rights and duties according to the demands of the political community.[19]
Turley’s False Dichotomy in Light of the Natural Law
With this brief crash course on the natural law now in place, let us turn back to Turley’s dichotomy. We can now see how autonomy and functionalism both play their proper role in the true natural law tradition. Autonomy is needed because man can only become virtuous by his free action. However, if the right to free speech is truly to be rooted in the natural law, and therefore partake of the name “natural right,” it must be a right that conduces man toward virtue, not just the simple exercise of his will. Not every usage of our speech builds virtue. In fact, there are many uses of speech that damage our virtue and the virtue of those around us. Examples of this include lying, blasphemy, violent rhetoric, and obscene sexualized speech.[20] This is to say nothing of the distasteful forms of “freedom of expression” that now claim protection under the First Amendment, such as pornography.
A true right to free speech, which leads to the inculcation of virtue, should give ample room for man to work out his rational deliberation, but can never include usages of speech that intrinsically militate against the acquisition of virtue. We are not arguing that people should be prosecuted in every instance for speech that contradicts the natural law. Such a degree of enforcement is not only impossible, but almost always imprudent. As Aquinas prudently notes in his Treatise on Law, “the purpose of law is to lead men to virtue, not suddenly, but gradually.”[21] What we are arguing is that any proper philosophical basis for the right to free speech based in the natural law tradition cannot brook uses of speech that contradict the telos of man’s speech: to speak truth, which perfects his character by tending toward the acquisition of the virtues.
Additionally, the right to free speech must have regard for the common good, which is the collective flourishing of the society. Man’s right to free speech cannot be measured by considering man in a social vacuum, as Turley’s autonomy-based justification would have us do. Rather, we must consider man as he actually exists, which is always in the context of a society that both imposes duties and confers rights on him. The contextualizing of man’s natural rights in a social setting is where functionalism plays a role. True functionalism, or as Cicero calls it, “usefulness”, is always in harmony with what is honorable.[22] Therefore, when men act virtuously in society through the responsible exercise of their rights and duties, such actions are both useful and honorable. This is because they bring about virtue both in the actor and the recipients of that action, namely, the other members of the political community. According to this framework, there is no inherent contradiction between autonomy and functionalism when both are viewed in light of man’s orientation toward the truth, goodness, and beauty, and his duty to align his actions with the common good.
If speech has an intrinsic aim or purpose, then all speech is not created equal.[23] A statement made in good faith is not equal to a deliberate lie; an allegation made in the pursuit of justice is not equal to the same allegation issued in malice; and a pornographic magazine is not equal to a great work of literature. Under this understanding, the right of free speech has functional, yet internal, limitations.
John Stuart Mill’s “Harm Principle”
Turley instinctually recognizes that autonomy alone as the basis for free speech gives rise to social conflict, which is why he turns to John Stuart Mill’s “harm principle.” The harm principle states simply that the scope of each man’s rights should extend as far as they can be exercised without causing harm to others.[24] The insufficiency of this theory lies in that it is very difficult to assess what constitutes harm in the abstract, and even harder to understand when harm has been done in practice. First, in the context of speech, it is hard to measure harm since there are various criteria by which it can be measured. Do verbal injuries count? Or just physical? What about indirect harms caused through externalities? Secondly, in practice, it is difficult to assess when harm has actually been done, since many injuries do not manifest themselves immediately, but may take a long time to materialize. We can think of the long-term psychological harm caused by exposing children to explicit sexual or violent content on the internet, or the harm done to our health over time by exposure to dangerous chemicals in the environment.
As an antidote to the overly simplistic harm principle, we should remember that every single action a person takes is done in a world that other people live in, and by people who are inseparably rooted in relationships. It is basically impossible to take an action that only affects yourself. For these reasons, Mill’s harm principle is an insufficient limit on what does and does not constitute lawful speech.
An Erroneous Summary of Our History
The historical narrative that Turley recounts in the Indispensable Right presents the First Amendment as a sort of miracle. Episodes of rage, like Shay’s Rebellion[25] and the Whiskey Rebellion[26], immediately proceed and follow the nation’s Founding. Sedition prosecutions by the colonial governments were commonplace in the colonial period[27] and continued right up to the Founding.[28] Furthermore, immediately after the Founding the newly-independent states passed sedition laws against those who would spread “erroneous opinions respecting the American cause” and a majority of them continued to criminalize blasphemy.[29] Laws prohibiting obscenity were also widespread and continued up until the age of the Civil War amendments and beyond.[30] Somehow, amidst this backdrop of ubiquitous speech regulation, the framers proposed, and the people ratified, a categorical, autonomy-based right to free speech which prohibited all sedition, blasphemy, and obscenity laws at the federal level. Does it seem plausible that this was the original public meaning of the First Amendment at the time it was ratified? It is no answer to say that the Bill of Rights did not apply to the states at the founding, for the state constitutions themselves frequently contained speech guarantees as facially categorical as the First Amendment.
Turley has a response to this objection. He points to the fact that, unlike the French Declaration of the Rights of Man, which places express limits on the right to free speech, in the First Amendment there is no comma after the guarantee to our right to free speech, but rather a period[31]: “Congress shall make no law… abridging the freedom of speech.”[32] This entails a statement of the right “in absolute terms.”[33] Therefore, Turley would likely argue that his autonomy-based understanding is clearly what the words convey semantically, regardless of whether the ratifiers thought through all of the consequences. The problem is that this argument hinges entirely on what “speech” means. If “speech” means simply the bare capacity to make utterances with one’s mouth, then Professor’s Turley’s rejoinder holds up. However, if “speech” entails both a capacity and a proper aim or purpose for that capacity, then this argument from semantics offers very little assistance.
Furthermore, there are good reasons to believe that the Framers and ratifiers adhered to the natural law understanding of speech. Turley emphasizes that free speech was considered an “unalienable right,” i.e. a right that individuals are unable to ever cede to the state.[34] However, recent historical scholarship suggests that Turley is conflating “natural right” and “unalienable natural right.”[35] Whereas the expression of “well-intentioned statements of one’s thoughts” was considered an inalienable natural right, any speech falling outside this classification invoked merely a natural right.[36] Inalienable rights imposed “more determinate constraints on legislative power,” whereas natural rights were “ordinarily subject to restrictions under laws that promoted the public good.”[37] If this historical account is correct, it would mean that at the time of the Constitution’s ratification, most people understood “rights” in the manner that we outlined above. Blasphemy laws and obscenity laws were not trampling on a categorical, autonomy-based right to free speech, rather they were positive law manifestations of preexisting internal limitations to the natural right of speech.
Despite Turley’s mistaken reading of the Founders on the right to free speech, much of the historical content included in The Indispensable Right does serve as one of the book’s redeeming qualities. Turley’s choice to devote four whole chapters to the intellectual development of Oliver Wendell Holmes is positively fascinating, especially in the sections where Holmes’s undeniable brilliance is portrayed against the backdrop of his cold and nihilistic worldview. For those who are wading into Turley’s book simply for the history, they will find much to appreciate.
Conclusion
To conclude, Turley’s book is a welcome addition to the present debate on the meaning, purpose, and limits of free speech. The immense amount of historical material it presents alone makes it worthwhile, along with certain warnings that shouldn’t go unheeded. However, Turley’s book just doesn’t quite “move the needle” forward in America’s free speech debate. It remains stuck within the tired platitudes of “autonomy v. functionalism” that have left us a in moral and political malaise. A robust and meaningful speech regime must go beyond neutral libertarianism. Rather, it must take account of the side of the natural law tradition that Turley omits; the natural law tradition that prioritizes the acquisition of virtue both individually and communally, in a society aimed at truth, goodness, and beauty, all harmonized by the governing principle of the common good.
[1] Jonathan Turley, The Indispensable Right (Simon & Schuster 2024).
[2] Id. 11-12 .
[3] Id. at 11.
[4] Id. at 255.
[5] Id. at 258.
[6] Id. at 255.
[7] Id. at 11.
[8] Id. at 12.
[9] Id. at 253.
[10] Id. at 34.
[11] Id. at 25.
[12] Id. at 58.
[13] Thomas Aquinas, Summa Theologica Q. 94 art. 2 res. (available at https://www.newadvent.org/summa/2094.htm#article2).
[14] Ralph McInerny, Ethica Thomistica: The Moral Philosophy of Thomas Aquinas 2 (Catholic University of America Press 1997).
[15] Frederick Wilhelmsen, Christianity and Political Philosophy 10 (Routledge 2017).
[16] Alasdair MacIntyre, After Virtue 148-49 (University of Notre Dame Press 2007).
[17] See Aristotle, Politics Bk. 3 Ch. IX (available at https://classics.mit.edu/Aristotle/politics.3.three.html).
[18] See D.C. Schindler, Politics of the Real 109-137 (New Polity Press 2021).
[19] See Id.
[20] See Hadley Arkes, “Free Speech and the American University: A Proposal” Civitas Outlook, Oct. 7, 2025 (available at https://www.civitasinstitute.org/research/free-speech-and-the-american-university-a-proposal).
[21] Aquinas, I-II Q. 96 art. 2 ad. 3. (available at https://www.newadvent.org/summa/2096.htm).
[22] See Cicero, De OfficiisBk 3 § 11-53.
[23] See Josef Pieper, Abuse of Language – Abuse of Power 16 (Ignatius Press 1992).
[24] John Stuart Mill, On Liberty Ch. 1 (available at https://www.gutenberg.org/files/34901/34901-h/34901-h.htm#:~:text=The%20object%20of,individual%20is%20sovereign).
[25] Turley, 80-87.
[26] Id. at 88-95.
[27] Id. at 51.
[28] Id. at 54
[29] Id. at 60-61.
[30] Id. at 143-47.
[31] Id. at 50.
[32] U.S. Const. amend. I.
[33] Id.
[34] Id. at 59-59.
[35] See Jud Campbell, Natural Rights and the First Amendment, 127 Yale L. J. 246, 280 (November 2017).
[36] Id. at 287, 268.
[37] Id. at 276.
