Free speech and its discontents
When it comes to defending the right to free speech, I consider myself a hardliner. I'm fanatical and militant about it and will passionately defend that right in virtually every case. That applies not just to the public sphere, but the private sphere as well. If free speech conflicts with any other goal, I will side with it nearly every time.
Not only do I defend free speech, but I do it consistently. In fact, when I find myself defending the rights of people and groups to speak freely, it is far more often than not people and groups I can’t stand whether they’re on the left or the right. That is what defending free speech entails. As far as I’m concerned, someone is either a consistent defender of free speech or they’re nothing at all. I have no patience, tolerance or use for those who would only defend it when someone they like is attacked.
My staunch support for free speech is a big part of why I strongly dislike ideologies and individuals who are hostile to it. That applies equally to those on the left and the right. It’s why I dislike MAGA and wokeness. It’s why I despise dictatorships whether they’re left-wing or right-wing. It’s why I root for democracies everywhere and want democratic movements everywhere to succeed.
In supporting free speech, I support the right of people to engage in hate speech of all kinds. I believe the ACLU made the right decision in defending the right of Nazis to parade in a Jewish neighborhood. I am against banning flag burning. I am against laws banning denying the Holocaust, which are not on the books in the US, but are in some countries in Europe. I favor a very high threshold for public officials to be able to sue media outlets.
Overall, my view of the Supreme Court as an institution is very unfavorable. I think throughout its history it has done far more harm than good. Contrary to what many seem to think it’s not where the little guy goes to get justice. It’s where those with power and money go to get what they can’t get anywhere else. The Supreme Court has long favored the big guy over the little guy whether the latter is workers, investors, consumers, etc.
Despite my negative view of the Supreme Court, I’m glad it exists. Were it not for my support for free speech, I would probably feel differently. An overwhelming majority of substantive issues can and should be left to legislatures and executives on the local, state and federal levels. Free speech is one of the few issues where I don’t support that. Public opinion should be relevant to almost all policy matters, but the right to free speech is not one of them.
There are other areas such as the rights of criminal defendants where public opinion probably can’t be counted on. Even then, that cause isn’t always at a severe disadvantage. Free speech sadly is. While most people spend little time thinking about any policy matters, support for censorship can be high depending on the issue and partisanship. That is particularly true among younger people who are much more likely to support silencing viewpoints they don’t like.
Recent trends are very disconcerting. The Republican Party right now is little more than a large-scale version of Jonestown. There has never been a major political figure in US history as hostile towards free speech as Donald Trump. While he is the worst offender, he is not the only one. Ron DeSantis is almost as authoritarian as he is and has never seen a First Amendment violation he didn’t like. Plenty of congressional Republicans, especially in the House, are just as bad.
While elected Democrats are largely good and Obama in particular has been a stalwart defender of free speech, some on the left are nearly as authoritarian as Trump. They are a small number of people overall, but punch well above their weight and have a large amount of influence in certain settings such as left-wing advocacy groups and some college campuses. As much as I don’t want to be ruled by MAGA, I equally don’t want to be ruled by that crowd.
Because of those trends and the longstanding hostility of public opinion towards free speech, legislatures can’t be counted on to protect it. That is especially true for groups and causes that are very unpopular. That is why the Supreme Court and lower courts are needed. There is no guarantee they will always do the right thing and uphold the right to free speech, but they’re much more likely to do it than legislatures and executives who are at the mercy of public opinion.
Free speech in the public sphere
Defending free speech with respect to governmental actions is fairly straightforward. The First Amendment by and large governs that. I favor a very expansive reading of it. That has sometimes led to outcomes I don’t think are great, i.e., perennial campaigns. That, however, is a small price to pay for the expansive free speech rights that are allowed in the US, much more so than in many other countries, including other democracies.
The right to speak freely and not be punished legally is not without costs. Like all rights, it has downsides. Hate groups have the right to free speech, too, for example. I wish such groups didn’t exist, but they do and it’s better that we know about it and know who is a part of it than have it all go underground. In dealing with bad ideas, the solution is more speech, not censorship. Free speech means those who oppose hate groups have the right to push back against them. Free speech allows for there to be a battle of ideas and that’s the only sustainable way good ideas will win out.
The First Amendment has allowed for every successful movement that expanded rights to exist. Without it, there may never have been a push for women’s rights, civil rights or gay rights. The way to help groups who have been treated poorly in the past is not through censorship, just the opposite. Think of your favorite cause, whatever it is, and know that without the First Amendment it may not be allowed. If censorship can be used against causes you don’t like, it can be used against causes you like, too.
Although the First Amendment offers plenty of protections, there is a perennial debate over how far it should go and whether it should take precedence over competing goals. I am open to persuasion in individual cases, but, like I said, my strong orientation is towards favoring freedom of speech. That is why I have opposed laws and ideas from the left and the right that favor other goals even if those goals are legitimate.
For example, earlier this year, Tennessee enacted a law that was ostensibly designed to protect minors from physical and psychological harm, a valid goal. In practice, the law was aimed at all but banning drag shows in any setting. It has rightfully been struck down in court and hopefully will remain that way. I have never been to a drag show and don’t plan on going to one, but that doesn’t matter. It is a right protected by the First Amendment. Those who don’t approve of it don’t have to go to those shows, but they have no right to prohibit them from happening.
Attacks on free speech can come from the left, too, and often are targeted at things I don’t like. An example of that is Elizabeth Warren advocating for shutting down crisis pregnancy centers nationwide. Crisis pregnancy centers exist to do little other convince women to not have abortions. If some of them are breaking the law, they should be held accountable for it. However, the mere act of trying to discourage women from having abortions is constitutionally protected speech.
Warren’s justification for wanting to shut down crisis pregnancy centers is to combat misinformation. It’s certainly true many of those places engage in misinformation about abortion and its effects. Combating misinformation is a great idea on paper, but in practice is never going to work. Creating a workable and consistent standard has proven to be all but impossible with social media companies trying it. Having the government at any level do it would raise the stakes substantially. The solution to bad speech is more speech, not censorship and that applies to crisis pregnancy centers. Just as they have the right to exist, those opposed to them have the right to speak out against what they do.
Free speech and bigotry on college campuses
In the private sphere, things can become trickier when it comes to free speech. In general, I strongly favor the maximum allowance of free speech in private organizations, especially universities and other places that are meant to be about open debate and ideas. One paradox of supporting free speech is that private institutions have the free speech right to be hostile towards it. While public institutions are bound by the First Amendment, private institutions are not.
If they so choose, private institutions can impose censorship. That includes private universities. I support their legal right to do that even though I seldom think they should do it. While hate speech is protected by the First Amendment, I don’t think it’s unreasonable for private institutions to have standards that go above and beyond what is merely legal. This has been a major issue over the last month in light of what has been going on in the Middle East.
I am not going to discuss the merits of what is going on in Middle East here. What the last few weeks have done is bring out into the open many problems at universities with antisemitism. Something I have been thinking about and sometimes struggling with is how they should handle it. Ensuring that students are safe is a legitimate goal, but so is free speech.
It’s imperative that private universities adopt consistent standards for free speech and for when something crosses the line. While they have the legal right to do what they want, they can face severe reputational damage and a backlash from donors if they are seen as having different standards for antisemitism. They can also risk losing future students and their graduates becoming disfavored by employers. I don’t support the government at any level taking action against private universities, but just as they have the legal right to do as they please, so do donors, employers and prospective students.
What has gotten many universities into so much trouble is being in the business of putting out statements about events that get a lot of attention. Many universities were quick to put out statements about George Floyd and Ukraine, but were slow to say anything about Hamas. When they did their statements were often wishy-washy. For good reason, that has caused a lot of controversy.
To avoid that in the future, universities should follow the lead of the University of Chicago and get out of the business of putting out statements on matters that don’t directly affect them. Students, faculty members and others are free to have whatever views they want and speak out about them, but, as institutions, universities should not be taking a position. When universities put out statements about one thing they will have to put out statements about everything. The one time they don’t put out a statement it looks like they don’t care and they’ve got a big problem on their hands. Not putting out statements in the first place is the only way to avoid that.
Dealing with antisemitism on college campuses isn’t a hard task. Universities should just treat it like any other form of bigotry. When determining how to treat students who engage in antisemitism, universities should ask themselves this: what would they do if students dressed in white hoods or Nazi uniforms on campus? Whatever the answer to that is, that is how they should deal with students who are antisemitic. Whatever their response is, it has to be done consistently.
To be clear, I am only taking about speech, not actions. Students who threaten other students are not engaging in protected speech. It should go without saying that physically attacking someone is not protected speech either. Students who do those things are committing crimes and should be prosecuted accordingly, which is what happened at Cornell. However universities would deal with students who commit crimes in other contexts is how they should deal with those who are committing crimes in the name of antisemitism.
While combating antisemitism on college campuses is necessary, it has to be done carefully. A worry I have is that it could become a new form of wokeness. Over the last few years, the definitions of racism, homophobia and transphobia have been expanded to include things that not long ago would have been considered uncontroversial. That has particularly been the case with gender issues and has been used to justify censorship and going after people who were considered allies five seconds earlier. I don’t want that to happen with antisemitism.
In particular, I don’t want the definition of antisemitism to be expanded to include all criticism of actions taken by the Israeli government. The line between legitimate, even harsh criticism of Israel and antisemitism very much exists and it must not be blurred. I think the cancellation of people with supposedly controversial views on college campuses and the efforts to shout down speakers are awful and that includes speakers with controversial views on Israel. I don’t want that to become the norm.
When it comes to setting standards for what will and will not be tolerated, not only is consistency important, but so is clarity. What is acceptable and what is not should be unambiguous. I think universities should strive to be as maximally permissive of speech as possible. That includes tolerating viewpoints that are cruel, callous, unfair, based on falsehoods, hurtful and even hateful.
On the issue of hate speech, I am probably inclined to think universities should tolerate it, albeit within limits. For example, if students are going to have a rally supporting white supremacy they should not be allowed to do it near a building occupied by an organization for black students. Similarly, if students are going to hold a rally supporting Hamas they should not be allowed to do it near a building occupied by an organization for Jewish students. As important as it is, free speech can’t be allowed to devolve into intimidation and threats, let alone physical violence.
Part of upholding free speech means enforcing rules that allow for it. For example, if a speaker is giving a speech on campus, students may protest it, but they may not interrupt it or shut it down. If posters or signs are put up permissibly, then students who object to them may not tear them down. Students who violate those rules should be held accountable for it, whatever that entails.
The good news in dealing with antisemitism and all other forms of bigotry on college campuses is that it’s easy to enforce once a standard is agreed to. To be blunt, at many private universities, especially the most elite ones, the vast majority of students come from well off backgrounds. Most of them have probably never been told no in their lives or had to answer for anything. If just a few of them are expelled for bad acts, the rest will soil themselves and shape up.
It’s not just universities that can hold students accountable for bigotry. Arguably, employers are even more important. For example, a law student at New York University had a job offer from a top law firm rescinded after putting out a statement that was antisemitic. As much as I oppose cancel culture, there are limits to it and that case is one of them. Just as I think it’s fine for employers to fire or not hire neo-Nazis and Klansmen, I think it’s fine if they do the same for antisemites and all other bigots.
Last week, more than two dozen big law firms sent a letter to law school deans at more than 100 law schools telling them they won’t hire graduates who engage in antisemitism. I think that’s perfectly legitimate. At the end of the day, those going to law school are hoping to work as lawyers no matter what they think about policy matters. If they’re threatened with the prospect of being unhirable, they will get with the program. I don’t know if any other employers are sending similar letters to colleges, but I wouldn’t object if they are.