Who’s Afraid of Free Speech?

By
Thomas Healy
July 14, 2017

This essay was commissioned by the Knight Institute. The views expressed are those of the author.
A response to this essay, also commissioned by the Knight Institute, is available here


1.
The campus left keeps shooting itself in the foot. In one incident after another, student activists have shown a distressing willingness to resort to violence as a means of combatting ideas and speech they disagree with. In February, a protest at U.C. Berkeley against the right-wing agitator Milo Yiannopoulos turned ugly when a group of demonstrators wearing black masks stormed a campus building, throwing rocks, smashing windows, and shooting off fireworks. In March, students at Middlebury College shouted down the conservative author Charles Murray during a lecture and then mobbed him as he left campus in the company of a professor. And in April, Berkeley officials cancelled a speech by political commentator Ann Coulter after receiving threats against her and deciding they couldn’t guarantee her safety (an attempt to reschedule was unsuccessful).

The response to these incidents has been swift and predictable. Conservatives have pointed to them as further proof that liberals – especially on campus – are hypocrites who care little about the supposed liberal values of tolerance and free speech. Instead, they charge, the left is dominated by undercover fascists who refuse to grant their opponents the same degree of respect and basic decency they demand for themselves.

“The left is absolutely terrified of free speech and will do literally anything to shut it down,” Yiannopoulos posted on his Facebook page shortly after the incident at Berkeley.

One might dismiss Yiannopoulos’s accusation as disingenuous since his primary objective appears to be provoking exactly the kind of ugliness that occurred at Berkeley. For him, and many others on the far right, saying outrageous things to elicit an overreaction from liberals has become a sport. Then, once they have accomplished their goal, they feign innocence and injury, “like soccer players collapsing to the turf and writhing in pretend agony,” as The New York Times aptly described it in an editorial.

But the criticism has not come solely from the far right. The Times columnist Frank Bruni wrote that the incident at Middlebury is symptomatic of “a rigid political correctness that transcends college campuses,” while Stephen Carter, a Yale law professor, compared today’s student protestors to Herbert Marcuse, the German-born philosopher who advocated repression in the name of progressive politics. In Carter’s estimation, the “true harbinger of an authoritarian future lives not in the White House but in the groves of academe.”

Nor is such criticism new. Over the past few years, a steady stream of commentary has deplored the current state of free speech and intellectual inquiry on college campuses. The Atlantic has published a series of articles with titles such as “The Coddling of the American Mind,” “The New Intolerance of Student Activism,” and “The Glaring Evidence that Free Speech is Threatened on Campus.” The Foundation for Individual Rights in Education, the watchdog group known as FIRE, has argued that free speech in academia is at greater risk now than at any time in recent history. The eminent First Amendment lawyer Floyd Abrams went so far as to claim (prior to the election of Donald Trump) that the single greatest threat facing free speech today “comes from a minority of students, who strenuously, and I think it is fair to say, contemptuously, disapprove of the views of speakers whose view of the world is different from theirs and who seek to prevent those views from being heard.”

The violence at Berkeley and Middlebury was disturbing and should be condemned by both liberals and conservatives. But the truth is that violent demonstrations on campus are still rare, and are not the only thing campus critics have been railing against. They have also been complaining about an atmosphere of intense pushback and protest that has made some speakers hesitant to express their views and has subjected others to a range of social pressure and backlash, from shaming and ostracism to boycotts and economic reprisal.

Are these forms of social pressure inconsistent with the values of free speech?

That is a more complicated question than many observers seem willing to acknowledge.

2.
A simplistic answer would be that such pressure – at least when wielded by students or private schools – does not conflict with free speech because the First Amendment applies only to government censorship, not to restrictions imposed by other actors in society. But most of us care about free speech not just as a matter of constitutional law but as a matter of American values, so the absence of government sanction hardly offers much comfort.

In addition, many of the reasons we object to official censorship apply to the suppression of speech by private means. If we conceive of free speech as promoting the search for truth – as the metaphor of “the marketplace of ideas” suggests – we should be troubled whether that search is hindered by public officials or private citizens. The same is true of democratic justifications for free speech. If the point of free speech is to facilitate the kind of open debate that is essential for self-rule, any measure that impairs that debate should give us pause, regardless of its source.

But although social restraints on speech raise many of the same concerns as government censorship, they differ in important ways.

First, and most obviously, much of the social pressure that critics complain about is itself speech. When campus liberals denounce Milo Yiannopoulos as a racist or Charles Murray as a white nationalist, they are exercising their own right to free expression. Likewise when students hold protests or marches, launch social media campaigns, circulate petitions, boycott lectures, demand the resignation of professors and administrators, or object to the invitation of controversial speakers. Even heckling, though rude and annoying, is a form of expression. And although the danger of the “heckler’s veto” is real, whether heckling conflicts with the values of free speech depends upon the circumstances and cannot be answered in the abstract.

More crucially, the existence of such social pushback helps protects us from the even more frightening prospect of official censorship. Here’s why. Speech is a powerful weapon that can cause grave harms, and the First Amendment does not entirely prohibit the government from suppressing speech in order to prevent those harms. But one of the central tenets of modern First Amendment law is that the government cannot suppress speech if the harms it seeks to prevent can be thwarted by alternative means. And the alternative that judges and scholars have invoked most frequently over the past century is the mechanism of counterspeech.

As Justice Louis D. Brandeis wrote in his celebrated 1927 opinion in Whitney v. California, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Counterspeech can take many forms. It can be an assertion of fact designed to rebut a speaker’s claim. It can be an expression of opinion that the speaker’s view is misguided, ignorant, offensive, or insulting. It can even be an accusation that the speaker is not trustworthy or a person of good character, that the speaker is racist, sexist, or otherwise bigoted, or that the speaker’s expression constitutes an act of harassment, discrimination, or aggression against a particular segment of society.

In other words, much of the social pushback that critics complain about on campus and in public life – indeed, the entire phenomenon of political correctness – can plausibly be described as counterspeech. And because counterspeech is one of the mechanisms we rely on as an alternative to government censorship, such pushback is not only a legitimate part of our free speech system; it is indispensable.

When campus liberals denounce Milo Yiannopoulos as a racist or Charles Murray as a white nationalist, they are exercising their own right to free expression.

Consider the issue of hate speech. In the 1992 case of R.A.V. v. City of St. Paul, the Supreme Court struck down a municipal ban on hate speech, ruling that the government cannot regulate expression based on its viewpoint or the fact that it gives offense. But that does not mean we, as individuals or as a society, have to embrace hate speech or resign ourselves to its perpetual existence. On the contrary, we can use our own voices to fight against bigotry and limit its occurrence. It is no coincidence that political correctness gained steam around the time the Court issued its decision in R.A.V. Having ruled that the government could not prevent the harms of hate speech, the Court left it to us as citizens to counter those harms ourselves. 

Some observers understand this dynamic. When PEN America issued a report on diversity, inclusion, and free speech in October of 2016, it rejected the widespread perception that there is a free-speech crisis on college campuses. While not denying that some campus liberals have occasionally gone too far in their efforts to combat ideas they disagree with, it pointed out that many of their tactics are “in fact . . . manifestations of free speech.” It also noted that “cries of ‘free speech’ have on occasion been used to refute or delegitimize protest and outrage – to dismiss the forms that speech takes and thereby avoid considering its substance. Yet protest and outrage, however infelicitously or unfamiliarly it may be expressed, must also be protected as free speech.”

Aaron Hanlon, a professor at Colby College, made a similar point in an op-ed in the Times in February. As a conservative student at Bucknell more than a decade ago, Hanlon explained, he often felt like an ideological minority on campus. So he and his conservative friends borrowed the language of oppressed groups and created a narrative that they were victims of a tyrannical liberalism. But while their claim to victimhood gave them a powerful cudgel and a platform on conservative media outlets, Hanlon eventually concluded that it was a false pose that impeded their ability to engage with a diverse world. Now, as a more liberal professor, he counsels his conservative students not to “compare disagreement with your ideas to suppression.”

A protest at UC Berkeley. Photo by Eric Broder Van Dyck.

3.
Yet many people continue to suggest that any pressure on speakers to change their views or modify their language constitutes a threat to free speech.

To take just one recent example, last fall University of Virginia President Teresa A. Sullivan came under criticism after she sent a message to the campus community quoting Thomas Jefferson, the school’s founder. About 500 students and faculty members signed a petition urging her to stop quoting Jefferson, because he owned slaves. Sullivan made clear that she respected the right of students and faculty to express their views, but some observers framed the incident as a challenge to free speech. The headline of an editorial in a local newspaper read, “Free Speech Under Attack Again,” while a Forbes contributor wrote that the incident was emblematic of the “silencing of speech and an instinct to censor at American universities.” It was no such thing. The incident was instead a perfect illustration of how our free-speech system is supposed to work—one group of individuals using their speech to counter what they view as the harmful speech of someone else, all while the government stays out of the picture.

Of course, the criticism of Sullivan was relatively mild and came packaged as part of a rational argument about our choice of moral heroes. Even critics of political correctness should be able to appreciate the free-speech interests on both sides of the incident. But what about when the pushback becomes more zealous and overbearing, when it seeks not to engage in reasoned debate, but to vilify? At that point, isn’t it fair to say that free speech is threatened?

Kirsten Powers makes this argument in her 2015 book, The Silencing: How the Left is Killing Free Speech. Discussing the case of author Wendy Kaminer, who elicited angry responses from students at Smith College when she used the n-word as part of a campus forum on free speech, Powers writes that “rather than arguing with her on the merits, her opponents set about the process of delegitimizing her by tarring her as a racist.” Powers goes on to complain that many liberals “instead of using persuasion and rhetoric to make a positive case for their causes and views, work to delegitimize the person making the argument through character assassination, demonization, and dehumanizing tactics.” These efforts, she concludes, “are a chilling attempt to silence free speech.”

The Wall Street Journal appears to agree. In an editorial entitled “Yale’s Little Robespierres.” it denounced student protesters at Yale who heckled and cursed a faculty member in a dispute over Halloween costumes. Comparing the protest to a “Puritan shaming trial,” the paper argued that it and other demonstrations on campus are tantamount to censorship.

It’s worth asking, though, why expression that shames or demonizes a speaker is not a legitimate form of counterspeech.

One possibility, as Powers implies, is that such tactics do not address the merits of the debate.  But that reflects a rather narrow view of what counts as “the merits.” To argue that a speaker’s position is racist or sexist is to say something about the merits of her position, given that most people think racism and sexism are bad. Even arguing that the speaker herself is racist goes to the merits of the debate, since it gives us context for judging her motives and the possible consequences of her position. It’s true that calling someone racist is a conclusion rather than an argument. It’s also true that such an accusation might not be persuasive without evidence or an argument to support it. But just because a statement is unpersuasive or ineffective doesn’t mean it’s irrelevant to the merits of a debate.

Besides, what principle of free speech limits us to discussing the merits? Even a casual survey of political discourse throughout American history will show that it has often strayed from the merits of issues to personal or tangential matters. But it has never been suggested that such discourse is outside the realm of free speech.

On the contrary, the Supreme Court has acknowledged that speech is valued both for the contribution it makes to rational discourse and for its emotional impact. As Justice John M. Harlan wrote in Cohen v. California, a 1971 decision reversing a defendant’s conviction for wearing a jacket carrying the words “Fuck the Draft,” “much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.”
 

4.
Fine, the critics might say. But much of the social pressure on campus and in public life does not just vilify; it is designed to, and often does, chill unpopular speech. And given that courts frequently invoke the chilling effect of government action as a reason to invalidate it under the First Amendment, the chilling effect of social pressure renders it inconsistent with free speech, too.

This is a serious objection, but framed this broadly it proves too much.  All counterspeech has at least some chilling effect. Any time we refute an assertion of fact by pointing to evidence that contradicts it, we reduce the likelihood that speakers will repeat that assertion. Whenever we challenge an opinion by showing that it is poorly reasoned, leads to undesirable results, or is motivated by bigotry or ignorance, we make it less comfortable for speakers to express that opinion in the future.

Put bluntly, the implicit goal of all argument is, ultimately, to vanquish the opposing view. We don’t dispute a proposition in the hope that others will continue to hold and express that belief. Unless we are playing devil’s advocate, we dispute it to establish that we are right and the other side is wrong. If we are successful enough, the viewpoint we dispute will become so discredited that it is effectively, although not officially, silenced.

Such has been the fate of many ideas over the centuries, from claims that the earth is flat to declarations that slavery is God’s will, to assertions that women should not be allowed to vote or own property. Each of these positions can still be asserted without fear of government punishment. But those who make them in earnest are deemed so discreditable that the claims themselves have essentially been removed from public debate. This is perfectly natural. Even John Stuart Mill, the English philosopher whose ideas helped shaped American free-speech theory, conceded that the removal of some questions from “serious controversy” was an “inevitable and indispensable” feature of free speech. Mill believed it might nonetheless be wise to keep even the most settled questions alive through “some contrivance” such as Socratic dialogue, but he did not object to efforts to consolidate public opinion. “[T]he well-being of mankind may almost be measured by the number and gravity of the truths which have reached the point of being uncontested,” he wrote.

This highlights a paradox of free speech, and of our relationship to it. On the one hand, we are encouraged to be tolerant of opposing ideas in the belief that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” as Justice Oliver Wendell Holmes Jr. put it in his landmark 1919 opinion in Abrams v. United States. On the other hand, unlike the government, we are not expected to remain neutral observers of that market. Instead, we are participants in it: the market works only if we take that participation seriously, if we exercise our own right of expression to combat ideas we disagree with, to refute false claims, to discredit dangerous beliefs, and to call out those who promote them. This does not mean we are required to be vicious or uncivil. But viciousness and incivility are legitimate features of our free speech tradition. Life is not a debating exercise or a seminar room, and it would be naïve to insist that individuals adhere to some prim, idealized vision of public discourse.

This, one suspects, is what bothers many critics of the campus left: the fact that so much of the social pressure and pushback directed at speech takes on a nasty, vindictive tone. Instead of being polite and reasonable, it is frequently intemperate, mean-spirited, self-righteous, indignant, searing, and peremptory. The critics are quick to point this out. They link to the video of the Yale students yelling profanities at a faculty member. Or they quote from online forums in which the participants hurl the most abusive accusations at each other and appear utterly unable to engage in civil debate.

These outbursts are painful to observe. But free speech often is. It was painful to envision neo-Nazis marching through the Jewish community of Skokie, Illinois, home to thousands of holocaust survivors, in 1977. It was painful to watch the Westboro Baptist Church picket a military funeral in 2006 with signs reading “You’re going to hell,” “Fag troops,” and “Thank God for Dead Soldiers.” In both of these cases, the speech was deeply offensive to our sense of decorum, decency, and, yes, tolerance. But in both cases, the courts rightly concluded that this offense was irrelevant to whether the speech had value within our system.

One of the most quoted lines in First Amendment law comes from Justice William J. Brennan Jr.’s 1964 opinion in New York Times v. Sullivan. In defending the right of newspapers to scrutinize the actions of public officials, he described “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” In subsequent cases, the Court has made clear that this principle applies broadly, to criticism of anyone who takes part in public life or debate—in other words, to most of us.

The critics of campus protesters, particularly on the left, seem to forget this. Although they claim to be promoting an expansive view of free speech, they are doing something quite different. They are promoting a vision of liberalism, of respect, courtesy, and broadmindedness. That is a worthy vision to promote, but it should not be confused with the dictates of free speech, which allows for a messier, more ill-mannered form of public discourse. Free speech is not the same as liberalism. Equating the two reflects a narrow, rather than expansive, view of the former.

 

The critics of campus protesters are promoting a vision of liberalism, of respect, courtesy, and broadmindedness. That is a worthy vision to promote, but it should not be confused with the dictates of free speech.

5.
Where does this leave us? Does it mean that any form of social pressure targeted at speakers is acceptable? Not at all. One of the reasons government censorship is so troubling is that the coercive power of the state is nearly impossible to resist, making its chilling effect not just real but profound. Social pressure that chills speech to the same degree, crossing the line from persuasion to coercion, should also be regarded as inconsistent with the values of free speech.

This explains why violence and threats of violence are not legitimate mechanisms for countering ideas one disagrees with. Physical assault – in addition to traditionally not being seen as a form of expression – too closely resembles the use of force by the government. Destruction of personal property can be condemned on the same grounds. Although more plausibly considered a form of expression, vandalism bears a striking similarity to coercive action on the part of the state.

What about other forms of social pressure? If we are concerned about the risk of coercion, the question in each case should be whether the pressures are such that it is reasonable to expect speakers to endure them. Framed this way, one can make a strong case that insults, shaming, delegitimizing, demonizing, and even social ostracism are all compatible with free speech, since it is not unreasonable for speakers to bear these consequences. This is not to minimize the distress such tactics can cause; being demonized and ostracized is surely a painful experience. But a system that is based on the competition of the market and that relies on counterspeech as the primary alternative to government censorship should not unduly restrict the forms that counterspeech can take.

Heckling raises trickier questions. Occasional boos or interruptions are compatible with free speech since they don’t prevent speakers from communicating their ideas. In some contexts, such as comedy clubs, heckling is even expected and can provide a speaker with helpful cues about the audience’s mood and response. But heckling that is so loud and continuous that a speaker literally cannot be heard – what the critics call “shouting down” – is little different from putting a hand over a speaker’s mouth and should be viewed as antithetical to the values of free speech.

The issue of economic reprisal is also difficult. Like violence, it bears an uncomfortable resemblance to a type of punishment – fines – imposed by the government. It also comes much closer to coercion than other forms of social pressure. Most of us can probably withstand insults and shaming for causes we believe in, but how many of us would be willing to risk our livelihood?

That is why the blacklisting of actors, directors, screen writers, and others in Hollywood was so successful during the McCarthy era, and why it remains such a disturbing part of American history. As the journalist Andrew Sullivan has argued, “When people’s lives and careers are subject to litmus tests, and fired if they do not publicly renounce what may well be their sincere conviction, we have crossed a line. This is McCarthyism applied by civil actors.”

At the same time, we impose financial costs on speakers all the time because of their views. We choose not to buy books we find offensive or, if we have already bought them, we post negative reviews online. We cancel newspaper and magazine subscriptions and turn off TV shows when we disagree with their point of view. And we boycott products when companies take positions we don’t like on controversial topics, such as marriage equality or climate change. Each of these actions exacts an economic price for the expression of ideas, yet each of them seems perfectly consistent with our tradition of free speech.

As with heckling, context is important here. Applying economic pressure to corporations might raise fewer concerns than applying the same pressure to ordinary citizens because the coercion is less palpable. Mill appeared to think so. Those who are economically secure and “desire no favors from men in power, or bodies of men, or from the public,” he wrote, “have nothing to fear from the open avowal of any opinions, but to be ill-thought of and ill-spoken of, and this it ought not to require a very heroic mould to enable them to bear.”

But for most people, he believed, financial retaliation was overly coercive since “men might as well be imprisoned, as excluded from the means of earning their bread.” Thus, we might not think free speech is threatened when customers boycott Chick-fil-A for comments its chief operating officer made about marriage equality, yet feel otherwise when an untenured professor at a college is fired for expressing her views on the Israeli-Palestinian conflict.

Because social restraints on speech do not violate the Constitution, we cannot rely on courts to develop a comprehensive framework for deciding which types of pressure are too coercive. Instead, we as a society must determine what degree of pressure we think is acceptable. Different institutions must decide on the degree that is appropriate within their cultures.

In that respect, the critics are well within their right to push for a more elevated, civil form of public discourse. They are perfectly justified in arguing that a college campus, of all places, should be a model of rational debate. But they are not justified in claiming the free speech high ground. For under our free speech tradition, the crudest and least reasonable forms of expression are just as legitimate as the most thoughtful and eloquent.


An abbreviated version of this essay was previously published on TheAtlantic.com.  
 


Thomas Healy is a professor of law at Seton Hall University School of Law and author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America. He is currently a visiting fellow at the Center for Law and Culture at Columbia Law School. He was a staff writer of the News & Observer in Raleigh, NC and the Supreme Court correspondent of The Baltimore Sun.