As Glenn Greenwald points out, to believe in free speech requires that we believe in free speech for everyone regardless of their point of view. UNC Ph.D. student Kylie Broderick has lost her job because her University failed to take a principled stand on free speech.
The next time someone tells you that you need to be silenced because your speech is offending them, mention this quote from the U.S. Supreme Court opinion of Terminiello v. Chicago (1949), reversing a disturbing-the-peace conviction of a hate-monger. Justice Douglas wrote the opinion, which included these gems:
The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U.S. 353, 365, 260, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.
Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262, 193, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367, 373, 1253. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.
A few weeks ago, NPR offered a program on "free speech" in which none of the participants took a strong stand in favor of free speech.
In this video, Matt Taibbi (Journalist/Commentator), Nadine Strossen (former President of the ACLU), Amna Khalid (Carlton College History Professor) and Nico Perrino (Foundation for Individual Rights in Education) respond to the lopsided NPR presentation. Each of these participants recoiled at the idea that there is such a thing as a "free speech absolutist," an idea repeatedly promoted by the NPR panel. Matt Taibbi explains:
This idea that we're free speech absolutist is something that's been invented by people who are against the who want to regulate speech in a way that i think is new and very repressive. They're mischaracterizing the positions of people like all of us.
Nadine Strossen further explains:
Government may restrict speech if but only if it can satisfy an appropriately heavy burden of proof if it can show that the particular restriction is necessary and the least speech restrictive alternative in order to promote some countervailing goal of compelling importance whether that goal be public safety for example or individual safety and when you think about it that just makes common sense of course most of us would be willing to trade off free speech for you know public safety or even national security but it's a fool's choice to give up free speech if we're not gaining safety in return or worse yet as is often the case if the censorship no matter how well intended does more harm than good which is typically the case.
Taibbi points out that the NPR panel has no solutions to the "problem" that speech is often unruly and offensive:
It's so important to our conception of what our society is all about this idea of of being able to express ourselves that is preferable to the alternative. The alternative is that somebody would have to regulate the speech and that's the problem is once once we get into who's doing that regulating that that's where we get to the scary part and they don't address any of that. All they want to do is, in a very narrow way, say "Oh this libertarian hands off approach to to speech regulation doesn't work." But it's so much more complicated than that.
Amna Khalid accuses the NPR panelists of being myopic, over-focusing on the relatively functional state of American culture compared to the many vast oppressed populations in other parts of the world, where free speech is desperately needed:
In our current moment if you cast your eyes beyond the pond and look at the rest of the world you will see so many examples of how limitations on free speech are a way of shutting down the rights of minorities.
I've listened to the NPR presentation and repeatedly heard the NPR panel members attack the straw man they labeled "Free Speech Absolutist." It is as if those panel members never heard of widely recognized restrictions on free speech, including libel laws, incitement laws, laws prohibiting speech constituting hostile work environments and laws prohibiting fraud. I highly recommend this discussion:
Matt Taibbi's latest article, with which I completely agree: "NPR Trashes Free Speech. A Brief Response: In an irony only public radio could miss, "On the Media" hosts an hour on the perils of "free speech absolutism" without interviewing a defender of free speech." An excerpt:
The guests for NPR’s just-released On The Media episode about the dangers of free speech included Andrew Marantz, author of an article called, “Free Speech is Killing Us”; P.E. Moskowitz, author of “The Case Against Free Speech”; Susan Benesch, director of the “Dangerous Speech Project”; and Berkeley professor John Powell, whose contribution was to rip John Stuart Mill’s defense of free speech in On Liberty as “wrong.”
That’s about right for NPR, which for years now has regularly congratulated itself for being a beacon of diversity while expunging every conceivable alternative point of view.
I always liked Brooke Gladstone, but this episode of On The Media was shockingly dishonest. The show was a compendium of every neo-authoritarian argument for speech control one finds on Twitter, beginning with the blanket labeling of censorship critics as “speech absolutists” (most are not) and continuing with shameless revisions of the history of episodes like the ACLU’s mid-seventies defense of Nazi marchers at Skokie, Illinois.
The essence of arguments made by all of NPR’s guests is that the modern conception of speech rights is based upon John Stuart Mill’s outdated conception of harm, which they summarized as saying, “My freedom to swing my fist ends at the tip of your nose.”
Because, they say, we now know that people can be harmed by something other than physical violence, Mill (whose thoughts NPR overlaid with harpsichord music, so we could be reminded how antiquated they are) was wrong, and we have to recalibrate our understanding of speech rights accordingly.
This was already an absurd and bizarre take, but what came next was worse. I was stunned by Marantz and Powell’s take on Brandenburg v. Ohio, our current legal standard for speech, which prevents the government from intervening except in cases of incitement to “imminent lawless action”:
"MARANTZ: Neo-Nazi rhetoric about gassing Jews, that might inflict psychological harm on a Holocaust survivor, but as long as there’s no immediate incitement to physical violence, the government considers that protected… The village of Skokie tried to stop the Nazis from marching, but the ACLU took the case to the Supreme Court, and the court upheld the Nazis’ right to march.
POWELL: The speech absolutists try to say, “You can’t regulate speech…” Why? “Well, because it would harm the speaker. It would somehow truncate their expression and their self-determination.” And you say, okay, what’s the harm? “Well, the harm is, a psychological harm.” Wait a minute, I thought you said psychological harms did not count?"
This is not remotely accurate as a description of what happened in Skokie. People like eventual ACLU chief Ira Glasser and lawyer David Goldberger had spent much of the sixties fighting the civil rights movement. The entire justification of these activists and lawyers — Jewish activists and lawyers, incidentally, who despised what neo-Nazi plaintiff Frank Collin stood for — was based not upon a vague notion of preventing “psychological harm,” but on a desire to protect minority rights . . . .
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If you are wondering whether Taibbi is accurately portraying this NPR discussion, I invite you to listen to it here. NPR's conversation is stunningly muddled and incoherent. None of the guests show any meaningful familiarity with the work of John Stuart Mill. None of the participants demonstrate a working understanding of the First Amendment or the case law interpreting it. The result is that most of the discussion is aimed at straw men. And fully in line with what NPR has done, it stirred in a discussion of the "implicit bias" test in this free speech discussion, the perfect cherry on top for NPR's increasingly woke audience. This is what passes for a meaningful discussion at NPR.
Scholars in higher education who were targeted for their expression have quadrupled since 2015. In response, the Foundation for Individual Rights in Education ("FIRE") has launched its Faculty Legal Defense Fund to defend faculty members under attack for engaging in constitutionally protected speech. The FLDF provides free legal assistance to faculty at public colleges and universities across the country. I am proud to be one of the attorneys who will be working with FIRE on this effort.
A new report from FIRE shows an alarming 74% success rate for campaigns targeting collegiate scholars for their constitutionally protected speech — and the data suggest the worst is yet to come.
What is the focus of this effort? "Targeting Incidents," which are defined as follows:
We define a targeting incident as a campus controversy involving efforts to investigate, penalize or otherwise professionally sanction a scholar for engaging in constitutionally protected forms of speech. Our definition of a targeting incident does not include instances in which the scholar is subjected to harassment or other forms of intimidation, but does not face an attempt at being professionally penalized or sanctioned. Nor does it include cases where the individual(s) or group(s) expresses opposition to a scholar’s speech, but does not make any demands that the scholar and/or institution take action to remedy the situation.
Universities that are more likely to violate the rights of their faculty are those who have not adopted "The Chicago Statement":
Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn . . . . [I]t is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.
—Excerpt from the Chicago Statement