What’s Wrong with Free Speech?

Gerald J. Russello

Americans pride themselves on a dedication to freedom of speech that is sometimes shocking to observers from Canada, Europe, and the United Kingdom. But in the last few years, free speech has become a lightning rod for debate. American college campuses in particular have been the scene of sharp, sometimes violent, confrontations where (in most cases) conservative or non-liberal speakers have been “no-platformed,” that is, their invitations have been rescinded because their remarks would be “harmful” or would make students feel “unsafe.” College professors have been disciplined for espousing a variety of views, both in the classroom and in public fora such as social media. Most but not all of these threats have come from the political Left, and public support for strong protections for free speech have weakened along the political spectrum.

In America, the place to start any discussion about free speech is with the First Amendment to the Constitution, or at least the amendment as interpreted by the Warren Court and the cultural revolutions of the 1960s and 1970s. That liberal era greatly expanded what could be considered speech and therefore could be protected from government interference. In areas such as political protest and pornography, court decisions whittled away traditional legal obstacles that communities could use to block objectionable speech. The set pieces in this narrative are two court cases, Brandenburg v. Ohio (1969) and National Socialist Party of America v. Village of Skokie (1977).1

In Brandenburg, the Supreme Court overturned the conviction of a man who used racist speech and even argued for violation of the law and the use of violence. The Court held that such speech could not be prohibited under the First Amendment unless that speech was advocating “imminent lawless action and [was] likely to incite or produce such action.”2Skokie permitted Nazis to march in an Illinois town where a significant number of Holocaust survivors had settled. After much judicial wrangling, the town enacted certain ordinances that were meant to restrict the Nazis from marching. The appellate federal court rejected the idea that the risk of “psychic trauma” to survivors was sufficient to restrict speech. This principle remains potent in American law; the more recent Supreme Court decision, Snyder v. Phelps (2011), allowing members of Westboro Baptist Church to protest at the funerals of soldiers by uttering very offensive speech, is directly traceable to both Brandenburg and Skokie.3

But the 1960s and 1970s were a time when liberals felt besieged by what they considered an oppressive and puritanical society of political and cultural conformity. However, since liberalism has now become the dominant cultural mood among elites, the heirs of the liberal project, now proudly proclaiming themselves progressives, have taken a different tack toward freedom of speech. The crisis explained in the books under review—What’s Wrong with the First Amendment? by Steven H. Shiffrin; Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge, by Joanna Williams; Free Speech on Campus, by Erwin Chemerinsky and Howard Gillman; Free Speech: Ten Principles for a Connected World, by Timothy Garton Ash; and Free Speech after 9/11, by Katharine Gelber—is partially a reflection of the collapse of one kind of liberalism, understood as a general tolerance of, and legal protection for, opposing and even hateful views. The core of the emergent progressive approach, by contrast, is the supposed freedom not to be offended, which too often translates into the right to block ideas or arguments that might upset or dismay others. Thus, the scientist and “new atheism” proponent Richard Dawkins, for example, was recently barred from speaking at an event for a radio station in Berkeley, California (where in many ways the 1960s free speech movement had its home), because of critical comments he has made about Islam (though not, tellingly, for what he has said about Christianity). Some true leftists, such as the blogger, teacher, and writer Frederick de Boer, see the same threats to free speech on campus as conservatives do. But their critique is that the Left should not be permitting corporate and economic interests to highjack traditionally liberal concerns of tolerance in order to maintain control. But younger left-wing writers who favor the older, classically liberal view of free speech are becoming fewer. More often, the progressive calls first for suppression of speech and then for “bias” or other training to correct the wrong-thinker.

The strength of the progressive claims animates Steven H. Shiffrin’s What’s Wrong with the First Amendment? Shiffrin, the Charles Frank Reavis Sr. Professor of Law Emeritus at Cornell Law School, states that, although he was long a proponent of free speech, he has concluded that “[t]he main problem with the First Amendment…is that it overprotects speech.”4 The law protects too many categories of speech that, for Shiffrin, serve no strong public purpose or are otherwise of limited civic value. What he means by this is not that speech should be restricted because it is “offensive,” but rather that “speech that causes significant harm (or unreasonably risks such harm) should ordinarily be regulated to avoid the harm.”5 Accordingly, he would have upheld the speech restrictions in cases such as Skokie or Brandenburg, not because he wants to restrict or prohibit speech, but because the speech in such cases was designed to inflict psychological harm rather than (or more than) to accomplish any legitimate goal.

As Shiffrin argues, the court in the Skokie case failed “to distinguish between ‘offense’ and mental shock and suffering.”6 But the problem with this approach quickly becomes evident, because it inevitably collapses into a reliance on whatever is offensive to particular groups at particular moments in time. Such a test, Shiffrin thinks, like a good old-fashioned liberal, should be obvious to reasonable Americans. And perhaps it would have been to the citizens of 1950s or 1960s America, and even in the Skokie case itself, since the town had tried numerous strategies to keep the Nazis from marching based on the commonsense understanding that what they had to say, and where they chose to say it, was not worthy of protection. Part of the difficulty in parsing current debates on free speech is that there are few common standards of “acceptable” speech, either in political protest or more private settings. So the argument becomes either the assertion of nonnegotiable terms such as “the right not to be offended” or an ideological free speech absolutism.

Shiffrin’s book is also marred by a clear desire to taint the Supreme Court “conservatives” with bad reasoning and motives, even when unjustified. For example, in the Westboro case, Justice Samuel Alito penned a dissent, as he did in a case involving so-called crush videos. In each case (as Hoover Institution research fellow Adam J. White has explained in a Weekly Standard essay exploring Alito’s jurisprudence),7 Alito made an argument from community standards that is different from the free speech abstractions of both the Court’s liberals and conservatives. White calls this approach “Burkean,” in that it allows local governments and communities to police acceptable speech based on traditional standards of conduct. The courts have a limited role of “procedural oversight,” and should be reluctant to announce sweeping constitutional rules that disrupt settled expectations and patterns of behavior. Thus Alito would have ruled against the protestors in Westboro, not because he rejects some abstract idea of free speech or would impose some Shiffrin-like “offensive” standard, but because speech has always been defined in part by the culture around it. Hurling insults at funerals of soldiers has never been acceptable conduct, and so therefore can be restricted.8

The First Amendment, of course, protects freedom of political and other speech (and certain kinds of non-speech “expression”) only from government interference. It has no clear application to purely private institutions restricting speech, or more generally to private actors punishing others for speaking out on issues. But in addition to constitutional law, the debates over free speech implicate two other concepts. The first is academic freedom, meaning the freedom to speak, write, and publish in an academic setting. The second is intellectual freedom, a broader concept than academic freedom. This is the general proposition that our ability to speak in nongovernmental and nonacademic contexts should still be respected to the greatest extent possible.

Peter Wood provided that triptych—the differing and overlapping claims of freedom of speech, intellectual freedom, and academic freedom—in a 2016 Claremont Institute address, and in his monograph The Architecture of Intellectual Freedom,9 and it is a helpful framework for considering these books on free speech, themselves partially the result of various controversies in the United States, Canada, and Europe over the permissible boundaries of speech. Wood writes that “[i]ntellectual freedom…is the superintending value of open inquiry, but it is not an absolute. It requires a willing humility on the part of all participants to suspend some judgment, to listen, to sift, and to weigh.”10 But what has happened instead is that the arbiters of acceptable speech have rejected the tradition of open inquiry, and have in many instances replaced a presumption of robust debate with a series of ideological positions that cannot be challenged.

Threats to intellectual and academic freedom have received new attention in light of the recent protests and disinvitations of speakers on college campuses. These disruptors—such as the protestors against a Charles Murray lecture at Middlebury College—tend to argue that they support free speech but not “hate speech.” What “hate speech” is, however, has proven very elusive, like its companion, “microaggression.” That is part of the point. Such terms permit those in control of the debate to suppress speech that may pose a threat to their authority.

College students, for example, consider themselves extremely tolerant, but as polls have shown, they do not really think free speech is an important value when that speech expresses “intolerant” views.11 The most important value to the younger progressives is nonjudgmentalism combined with a ruthless professionalism. The latter serves the former because part of belonging to the professional class is not allowing any non-elite thought to compromise one’s rise to the top, and not causing trouble by making others feel uncomfortable.

The cultural backdrop of the elite class is important for understanding why so few elites defend a robust protection for free speech. R.R. Reno, editor of the influential journal First Things, has described it this way:

Imbued with a therapeutic ethos that softens the rigors they impose on themselves and their children, and often cowed by multiculturalism, today’s rich won’t speak up for a common culture that imposes standards on personal behavior.…Instead, they quietly and covertly pass on social capital to their children. Their kids go to schools that, for all their celebration of “diversity” and “inclusion,” are ruthlessly segregated by social class, ensuring that no “unhealthy” or “anti-social” attitudes infect their charmed world of pleasures without penalties and permissions without punishments. In this controlled, segregated environment, rich kids are prepared for success in today’s hypercompetitive meritocracy.12

And if students embrace this ethos in an academic setting—the place where freedom to debate ideas and speak freely was most clearly established in the West—then as they leave school and enter the workforce and public life they will likely tolerate such restrictions in nonacademic settings.

These intolerant students come by their intolerance naturally, as it were. Wood notes that “[t]he freedom to say things, even manifestly true things, has been curtailed. And the freedom to argue things—to present claims backed by reason and scrupulous use of evidence—has been even more drastically limited.”13 As University of Kent senior lecturer in higher education and spiked education editor Joanna Williams explains, restrictions on free speech come as often from inside the academy as from outside it. Williams’s study, Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge, is a history of the contemporary development of the idea of academic freedom, and how that idea has become less influential in recent years. One reason for this diminution is the guild mentality of many academics: “Certain issues, for example rape and climate change, are held up as requiring specialist knowledge that can come only from years of research. Too often academics fear dangerous consequences from allowing people without this knowledge to engage in debate.”14 Thus academics close off debate from interested but nonspecialist critics, which superficially is supposed to increase the authority of “experts,” but in reality isolates them from the wider intellectual and political debates. Just as important are the techniques colleges use to train their students in intolerance, such as inculcating a disdain for Western traditions of free inquiry or establishing teams charged with detecting any sign of “bias”—and rooting it out through various forms of public humiliation and ideological retraining.

A second source of this academic comfort with restricting debate and free speech is a matter of intellectual history. At least since Allan Bloom’s 1987 blockbuster The Closing of the American Mind, the Left—broadly understood—has been engaged in a project to undermine Western civilization, or at least what the Left sees as its unwarranted self-regard. Williams writes of the school of thought known as Critical Theory, derived from the postwar intellectuals of the Frankfurt School, whose “rejection of the notion of autonomy, and the perhaps inevitable interpretation of their ideas as a celebration of relativism, erodes the fundamental tenets of academic freedom. With the abandonment of truth claims, Critical Theory loses its power to be truly critical, and the initial impetus behind scholars’ demands for academic freedom is made redundant.”15

In the traditional understanding of academic life, academic freedom is for something: to engage in discussion to find true things about the natural and human worlds. Critical Theory and its affiliated schools reject that assumption, and academic freedom becomes merely a bastion of various forms of privilege and oppression. In this view, what matters is academic power, which can be wielded to silence unwanted opinions. Although the hard sciences were typically thought to be immune from such ideological fervors, as Williams explains, that is no longer wholly the case. Climate science, as well as politically charged research into biology, is also subject to the threats Williams recounts.

Erwin Chemerinsky, dean of Berkeley Law at the University of California, and Howard Gillman, chancellor of the University of California, Irvine, School of Law, are advocates of strong protections for free speech, and they recognize that campuses have to do more than they are doing to counteract the forces at work to undermine free speech protections. In Free Speech on Campus, they write, “Free speech advocates must acknowledge the admirable values that tempt people toward censorship, and then provide a road map for addressing these issues in a way that does not undermine higher education’s necessary commitment to free speech, academic inquiry, unfettered inquiry, and robust debate.”16 They suggest several reforms based in part on Supreme Court decisions. So they wish colleges to be able to restrict “true threats,” which focus on protecting persons from physical harm but not emotional injury, similar to the traditional jurisprudential tests. This differs from Shiffrin, for whom emotional or psychological injury from speech can be a cognizable harm.

Chemerinsky and Gillman also revive what are called “time, place, and manner” restrictions, restrictions familiar to students of constitutional law. Campuses, for example, can restrict or prohibit large or disruptive protests within dormitories at night, but only where they are not explicitly concerned with prohibiting speech: “[I]t is crucial that campuses protect dormitories as spaces where students can find repose. Therefore, they are places where speech can be restricted, so long as the restrictions are not based on the views expressed.”17 What applies most clearly in dormitories applies more broadly throughout the campus. But this is not the same as the currently popular left-wing notion of “safe spaces,” though in each case speech is restricted. A “safe space” excludes speech that is unwanted or deemed “offensive.” Chemerinsky and Gillman, in contrast, think universities cannot invoke the need for a “safe space” as a reason to ban speech simply because some students may find it offensive.

But these discussions beg the question: Is there an abstract idea of “free speech” out there in the world that can be described or defined? Oxford University professor of European studies and Isaiah Berlin Professorial Fellow Timothy Garton Ash argues in Free Speech: Ten Principles for a Connected World that there is, and that “we should limit free speech as little as possible by law and executive action of governments or corporations, but do correspondingly more to develop shared norms and practices that enable us to make best use of this essential freedom.”18

Among the strengths of Ash’s book is that he spends a considerable amount of time on the increasingly important coordination of government and corporate power to silence speech. (Ash is also the only author among those discussed to point out that settled norms about free speech become more difficult to express and enforce when large numbers of immigrants with a different—or no—tradition of free speech arrive and are not integrated into those norms.) Corporations, of course, have control over speech on their own property, but as Ash notes, sometimes large companies have willingly worked with the government to identify “problematic” speech. Such combination corporate-governmental efforts will only become larger as the world connects through what Ash calls the “cosmopolis,” our interlinked world of social media and electronic communication.19

In Free Speech after 9/11, University of Queensland professor of political science and international studies Katharine Gelber places Ash’s insight regarding corporate and government power specifically in the context of post-9/11 laws that have hindered civil liberties, including free speech, in the name of protecting against future terrorist attacks. She sees a marked difference between free speech before and after 9/11. The terrorist attacks on that day, and subsequent attacks in Europe, have changed the terms of debate about free speech. Whereas before 9/11 free speech was a strong value, after terrorist attacks “policy changes have been implemented that have reached far into the protection afforded freedom of speech before 9/11,” not only in the United States but also in Gelber’s two other subjects, Great Britain and Australia.20 For example, she mentions use of the so-called National Security Letters and other legal tools to obtain massive amounts of data for surveillance purposes. And, of course, sometimes private companies simply strike out on their own: Twitter and Facebook have both implemented policies to delete or restrict what they consider hateful or offensive content.

None of these books is terribly optimistic about the future of free speech as traditionally understood. The traditional Western understanding of human dignity, as a person endowed with reason and the right to seek the truth, is at odds with the emerging free speech regime. The liberal approach of simple freedom of expression, reflected here to various degrees by Shiffrin and Chemerinsky and Gillman, is simply not up to the current challenge. The trend lines in colleges and elsewhere are clearly against the traditional Western understanding of free speech as preserving freedom, allowing for diversity of opinion, and, especially in the academic context, furthering a search for truth.

As Gelber’s analysis shows, private business, especially those companies with important government contacts, may not always be on the side of free speech. Ash comes closest to developing broadly applicable principles across a variety of contexts, and his rich discussions bear careful reading. But there is reason to be skeptical about whether such commonsense approaches will bear fruit in an intellectual environment disdainful of free speech and simply afraid of the possibility of truth. When each of us is a tyrant in our own world, with carefully crafted social media feeds reflecting our own views, and the assumption that “how I feel” is the baseline of reality, the notion that free speech is a good thing precisely because it challenges that assumption, and posits a larger objective reality, seems a losing proposition. To break out of this impasse may require a return to the premodern and early modern understanding of the human person in order to refresh our understanding of why it is that speech ought be free.

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