Magazine | June 24, 2019, Issue

Do We Still Want Free Speech?

An American flag flies at the U.S. Capitol in Washington, D.C., January 20, 2019. (Al Drago/Reuters)
The culture is moving dangerously away from the First Amendment

Within the legal realm, freedom of speech has never been better protected in the United States. It was not better protected last year; it was not better protected a half century ago; it was not better protected in the Gilded Age or in the Era of Good Feelings or during the Cold War or at the Founding itself. Whatever else may be wrong with their constitutional order, today’s Americans are living through a Golden Age of free expression for which there is no historical counterpart at home or abroad. That pathetic whine you hear sometimes, that “America is the only country in which . . . ,” is particularly accurate when it comes to free speech. In 2019, America is an outlier.

Pick a period of American history at random and you will discover that things were worse for the dissenters. Only a handful of years passed between the First Amendment’s being ratified by the Founders and its being diluted by the passage of the Alien and Sedition Acts. In the antebellum period, many southern states attempted to perpetuate slavery by rendering it illegal for their residents to criticize the institution — as, for a while, did the House of Representatives — and, after the Civil War brought emancipation, those states passed similar laws in order to protect segregation. During the First World War, Woodrow Wilson took his open disdain for the Constitution to its logical conclusion, began imprisoning critics of his administration, and was backed repeatedly in his attempt by the Supreme Court. And so on, and so forth. Plenty of red ink has stained America’s history.

A century ago, it was illegal to protest too vigorously against American involvement in war. The origin of the phrase “You can’t shout fire in a crowded theater” — a slogan that is trotted out without comprehension or care by every mediocrity in the United States — is a 1919 Supreme Court case, Schenck v. United States, in which the majority upheld the conviction of a Jewish, socialist, Russian immigrant who had handed out leaflets written in Yiddish encouraging Americans to decline to enlist in the armed forces. Despite the obviously political nature of Schenck’s speech, the Supreme Court defended his imprisonment on the grounds that the survival of the United States was so acutely threatened by the existence of an incestuous land war three and a half thousand miles away (the “fire” in the analogy) that his actions amounted to an undermining of national security. As was the case for others who were imprisoned under the same law — including, most famously, the socialist Eugene Debs — the First Amendment provided no shelter against retribution, and wouldn’t until the 1960s, at which point the Supreme Court remembered why it had been included in the Constitution in the first instance and effected a restoration.

The story of that restoration is a happily bipartisan one — especially today. Eight of the current Supreme Court justices are unfailingly on board with the broadest protections of free expression, and one, Samuel Alito, plays ball almost all of the time. Better still, the content of the speech under consideration tends to be wholly irrelevant to the outcome of the case. For once, the factional fights that have stained almost everything else in American life have been kept outside of our jurisprudence.

There is a reason that our would-be arbiters of taste spend so much time stupidly insisting that “hate speech isn’t free speech,” and that is that they know that in America it is. They know that there is no such legal category as “hate speech” in the United States; they know that the Court reaffirmed this as recently as last year; and they know that it did so 9–0, with even their favorite justices enthusiastically joining the opinion. They know, that is, that the champions of free inquiry and individual rights are winning their fight against those who see our national debates superintended by powerful men with bayonets, and that they, as would-be censors, have lost more comprehensively than any would-be censors have lost in the entire history of the world.

Which would be terrific if, on the cultural front, we weren’t facing a catastrophe.

There is an ugly paradox at play here: that, at the very same time that we have been making enormous advances in the courts, a whole host of America’s private institutions have been rendering it more difficult — and more costly — to speak freely. This paradox should seriously temper our triumphalism, for in the long run, a society that has a bulletproof legal right to speak but that has no meaningful culture of free speech will end up, in practice, without either.

There are two reasons for this. The first is that, for most people, the bigger threat to speech comes not from the government, which tends to censor capriciously, but from their employer, from their peers, or, increasingly, from the Internet. It won’t matter much that Ruth Bader Ginsburg is happy to defend the legal speech rights of literal neo-Nazis or that Clarence Thomas is comfortable protecting the right of Klansmen to say appalling things about African Americans if citizens who hold innocuous, and even mainstream, views are pilloried for departing even marginally from the present consensus. Conservatives focus a great deal on the indignity of professional speakers’ being harried off college campuses before they have been able to address the crowd — and, within reason, we should — but we focus much less on what this bad habit does to everyone else. As a rule, being shouted down is good for the career of a public figure because it makes him look like a martyr. For his audience, by contrast, it is disastrous, not only because it deprives them of the chance to hear other ideas, but because it makes them less likely to speak up themselves. If Ben Shapiro can’t talk about politics at a university, how can they?

The second reason is that culture eventually becomes politics, and the private eventually becomes the public. A certain portion of Americans believe to their core that “free speech” is a euphemism for “intolerance”; that one must filter all individual-liberty claims through the latest iteration of the hierarchy of grievances; and even that the First Amendment represents some sort of clever plot to keep marginalized people down. That this gets the history of speech entirely backward — ask the rebel colonists, the abolitionists, and the NAACP whether they benefited or suffered from free speech — is beside the point. What matters is that it has become fashionable as an idea, that it is spreading, and that it is being enforced voluntarily within the towering heights of American culture by people who believe that they are the rebels and that the free-speech crowd is the Man. Eventually, these views will have consequences. Like the rest of us, judges die, and besides, the courts are ultimately accountable to Congress and to the presidency. If we fail to correct course, the attitudes we associate with Berkeley will soon seep into Washington, and, after a while, they will become the law.

I had hoped that, with the election of Donald Trump, we might see a reversal in attitudes. If Trump is indeed the fascist that the Resistance makes him out to be, then one would expect to see those who are scared of him backing off from the idea that the government should have more power to prosecute dissenters. Likewise, given the claims made by the Black Lives Matter movement and its allies, one might have imagined that the idea of empowering cops to make decisions as to who should be arrested for speaking and who should be left alone would be an unpopular one. But, alas, it’s not. After the disaster at Charlottesville, the ACLU admirably defended the speech and marching rights of a bunch of people whom it loathed, and it explained its willingness to do so on the grounds that to defend the rights of one is to defend the rights of all. The response? Outrage, anger, and the charge that the ALCU was “siding with fascism.” How myopic our politics can be.

It may not always look like it, but it seems to me that the root problem with which we are dealing here is insecurity. Our would-be censors may look like authoritarians — and, indeed, their solutions may be authoritarian in nature — but what is ultimately driving them is a total lack of faith in themselves and in other people.

When I was at Oxford, the Oxford Union debating society invited the Holocaust-denying historian David Irving and the leader of the disgraceful British National Party, a rather silly little fascist named Nick Griffin. Within days, the invitations had become national news. Within a week, they had been rescinded — not least because people wearing balaclavas and unironically shouting “No free speech for fascists” were blocking the entrance to the building.

It is true, of course, that the Union was under no obligation to give a platform to these people — although I’d personally have loved to watch the debate, given how badly they tend to perform under pressure. But it is also true that the case that was successfully marshaled against the invitation was incompatible with the presumptions that undergird the Oxford Union (an institution that Harold Macmillan described as “the last bastion of free speech in the Western world”). That case, in essence, was that Irving and Griffin should not be invited lest they poison the minds of the students — a suggestion that is so patronizing and so condescending as to be beyond parody. What, I wonder, did the committee think was going to happen to the 450 students in attendance if they were subjected to Irving and Griffin’s nonsense for a few minutes? Did they think they were all going to goosestep out of the chamber?

Or did they think that the people in attendance whom Irving and Griffin dislike could not cope with being derided? Perhaps so. At a recent free-speech debate at Kenyon College in Ohio, I made this case directly to the audience. I looked the non-white and non-male members of the audience in the eye and said that the people arguing for censorship on their behalf didn’t think they were capable of living in the world; didn’t think that they were equal; didn’t have enough respect for them to involve them in robust debate. And at the end, a girl stood up and read me an indignant speech she’d written on her phone, the gist of which was, “I’m actually not strong enough. I’m weak. I’m fragile. I need protection.” How far we’ve come since Frederick Douglass!

Americans possessed of more self-confidence than are our would-be censors should be grateful that their Bill of Rights serves, in the words of James Madison, to “counteract the impulses of interest and passion.” They should be grateful, too, that the members of our federal judiciary enjoy lifetime appointments that insulate them from the vicissitudes of the day. At the same time, however, they should understand that, as Madison also noted, the Bill of Rights is safest when its provisions have “become incorporated with the national sentiment.” Alarmingly enough, the national sentiment and the national law are moving in opposite directions. Before long, something is going to break.

This article appears as “Free Speech, If We Can Keep It ” in the June 24, 2019, print edition of National Review.

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