Is someone really violating your right of “free speech” if they’re not using the power of the state to censor you? What if they’re “only” trying to get you fired, shamed out of public life, universally reviled, and left as a laughingstock — all without taking even a moment to address the conservative’s underlying argument? To some, that’s just a battle of free speech (conservative comment) versus free speech (lefty efforts to ruin your life), and anyone who thinks otherwise needs to be reminded of the law, thank you very much.
The other side of the argument – the Mark Steyn, Sarah Palin, Charles C.W. Cooke (among others) side — knows and understands that the law is just one part of the mix in the battle over free speech, and sometimes the law matters much less than the culture.
Let me provide an example from my own life. As I’ve related before, I arrived at Harvard Law School a rather idealistic young fellow (the semester after Barack Obama graduated, and the year before Ted Cruz enrolled), eager to do battle with the best and brightest on the left, the kinds of folks who’d never darken the door of my Christian college. I hoped (and prayed) that I was up to the challenge.
“The challenge,” it turns out, was not intellectual at all. In fact, I have a hard time remembering more than a few civil, interesting classroom exchanges. Instead, I remember the boos, the jeers, and the hastily scrawled hate messages left in my mailbox (“Why don’t you die, you f***ing fascist”). I remember the efforts made to get other conservatives fired from their future jobs through obscene and angry messages left on judges’ voice mails.
But I guess they had a legal right to do that, so it’s all okay. And if I thought that had a stifling effect on free speech, then the problem is in my head, right?
At least that’s what the radical professors told us. I recall one afternoon a small group of conservative students approached one of our more extreme professors — one who seemed to glory in all the boos, jeers, and catcalls when conservatives dared to speak — and asked if there was anything he could do to restore order. His response? If you can’t stand the heat, get out of the kitchen. Oh, and we had to understand how “hurtful” our words were anyway.
I was undeterred and kept speaking, but the vast majority of my conservative classmates stayed silent. They felt they had too much to lose.
Fast-forwarding almost 20 years, I’ve built much of my career around free-speech litigation. I’ve championed mostly the rights of conservatives, but during my tenure as president of FIRE I also worked on a strictly nonpartisan basis — protecting left and right. By my rough estimate, I’ve personally worked on well over 200 free-speech cases and public controversies. And here’s what I’ve found:
When it comes to law, we almost never lose. When it comes to the culture, we rarely win.
Conservatives — especially conservative Christians — used to treat the boos and the jeers with shock and dismay. Today — especially for the young — there is less shock and more assimilation.
Seven years ago, I filed a First Amendment lawsuit against Georgia Tech on behalf of two brave young women. They were challenging a blatantly unlawful speech code, which the university promptly changed — even agreeing to judicial oversight of its free-speech policies. Despite the obvious constitutional merits of their case, the Left erupted. Rape threats, death threats, and an avalanche of vile speech followed. Ultimately, one of the students had to receive a police escort on campus.
Did the conservative community rally around them? Some did, but the Georgia Tech chapter of a nationally known Christian ministry threatened to join the Left in protest against them if they didn’t retract the lawsuit. Why? Because they wanted to “maintain relationships” with the very people threatening their friends.
A legal victory is hollow indeed if no one chooses to exercise his right to free speech because he lives in an atmosphere of intimidation and reprisal. It’s even more hollow when the intimidation and reprisals are so effective that they’ve banished formerly mainstream thought to the outer edges of public life.
Stigma tends to defeat dogma. In other words, mockery and condescension tend to defeat sincere statements of belief. Our kids are literally mocked into liberalism. So in the battle to maintain the free exchange of ideas, I wholeheartedly endorse the Palins, Steyns, and others who retreat not an inch and instead stigmatize the stigma — and by doing so show other conservatives there’s nothing to fear.