Politics & Policy

Free Speech under Siege

(Photo: Stockyimages/Dreamstime)
As another school year begins, the freedom of expression on which our nation was founded is more endangered than ever.

A new school year is upon us, and the assault on free speech continues as Yale Law School students reject their new dean’s call for civil discourse. George Washington proclaimed in 1783 that if “the freedom of Speech may be taken away,” then, “dumb & silent we may be led, like sheep, to the Slaughter.” If campuses are incubating our next generation of leaders, I hope America likes lamb chops.

While teaching at Yale, I have often witnessed students demonizing each other over their disagreements. Concerned students informed me of a school-wide e-mail argument in which one student was branded racist because of his disagreement with another student’s criticism of course offerings. The accused pointed out that he obviously could not see his interlocutor’s race over e-mail, nor guess it from her name; he simply disagreed with her idea. The ad hominem attacks only intensified from there.  

Another time, a student group invited a controversial speaker to campus. Rather than speak up to expose the flaws in the speaker’s ideas, offended students announced that anyone in that group who did not publicly denounce the speaker and call for a disinvitation would be labeled sexist and ostracized. Intimidated students quietly dropped out of the group.

These private interactions are a symptom of what ails the public sphere.

Since its birth, the United States has grappled with people’s natural tendency to quash dissenting views. The founding generation rejected the British Crown’s practice of publishing its own newspaper in favor of both an independent free press and ardent support for free expression. But by 1798, a mere ten years after the Constitution’s adoption, the federal government had enacted the Sedition Act, making it illegal to publish “any false, scandalous and malicious writing” against Congress or the president. The act was a clear violation of Americans’ First Amendment rights. The Federalist party, under President John Adams, used its control of the government to silence its critics and attack the Democratic-Republican minority.

With the nascent Supreme Court neither willing nor ready to check the other branches, Thomas Jefferson and James Madison appealed to the people to defend Americans’ rights “to think freely and to speak and write what they think.” They used the very rights under attack — the freedoms of speech and the press — to educate the populace, galvanize public support across the states, and win back control of the government. In other words, they successfully countered a bad law with rational arguments.

Automatically dismissing ideas based on the identity of the messenger can leave us all worse off.

Today many will instinctively reject the Founders’ principles because many of them were white slaveholders. But that is part of the point: Automatically dismissing ideas based on the identity of the messenger can leave us all worse off. After all, these deeply flawed individuals nevertheless managed to enshrine in the country they founded — our country —many wonderful principles, from freedom of religion to checks and balances to free expression itself.

That latter principle is once again under siege today, and we could do worse than to dust off some of the grassroots tactics of Jefferson and Madison in its defense. We must take to the press, utilize social media, contact school administrators and professors, support leaders who practice and foster civil discourse, and speak to our friends and neighbors to help educate our communities on what freedom of speech really means.

Freedom of speech applies to everyone, not just to those who share our views. Except in rare instances when speech will cause immediate physical harm (such as shouting “fire” in a crowded theater) or rises to a serious expression of intent to commit violence, the First Amendment guarantees that no one should be prevented from speaking his mind by the government.

There is no “hate speech” exception to the First Amendment. Hateful ideas, no matter how odious, are protected under the Constitution. Hate is a grievous problem — one need look no further than the horrifying white-supremacist rally in Charlottesville to see that — and we must vigilantly prosecute whenever speech morphs into criminal action. But it is those cases when words morph into action that are prosecutable. Harming someone’s feelings is not.

Why do we permit so much?  Historically, Americans have preferred to rely on decency and the power of reason to check such affronts. And as private citizens we should all certainly speak out against horrifying rhetoric, whether it comes from neo-Nazis or any other individuals. To this end, students should be exposed to all sorts of ideas they disagree with so we equip them to combat the bad ones with the force of their arguments.

But once we begin relying on government force instead to quash even odious speech in advance, as a dumbfounding 40 percent of Millennials believe we should, we have reached the slippery slope toward the government’s silencing those with ideas powerful people dislike.  

We will inevitably disagree. It is how we approach those differences that defines us as a nation. “Liberty is to faction what air is to fire,” Madison once said. But America is not Republicans vs. Democrats, Caucasians vs. Hispanics, or any of the other tribal clashes that seem lately to define our discourse. If the American experiment is to succeed we must not permit the divisiveness of identity politics to overcome reason. And open dialogue is the key: Even if we fiercely disagree, we must expose bad ideas without demonizing each other and silencing our opponents.

The answer to bad speech is more speech, not less. Let the best ideas win.


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