When Free Speech Fell Out of Fashion

What if all the good free speech has been defended already? The United States government hasn’t gone after James Joyce, DH Lawrence or Theodore Dreiser in a long time. While the occasional local library might perk up against this book or that, it seems like the real free speech fights are all about Twitter running the right wing QAnon conspiracy group off of its platform or whether Ann Coulter or Milo Yiannopoulos can visit a college campus. Even progressives who value freedom of speech highly yawn at that stuff.

Dare to Speak by Suzanne Nossel
People won’t support freedom of speech if it’s all about freedom of noxious speech.

Who really wants to go to the mat for the organizers of a white supremacy march looking for a parade permit? Who has the time, energy or spirit to want to stick up for those people? Free speech has an image problem. If the voices most prominent suppressed by legal, corporate or cultural voices are the ones spreading hate, racism, conspiracies and misinformation, folks will not lose sleep over it.

In her new book, Dare to Speak: Defending Free Speech in Our Time (HarperCollins, July 2020), PEN America president Suzanne Nossel explores our collective willingness to loosen our commitment to the First Amendment in favor of other values that seem at least as important right now. “If free speech is discounted as a retrograde precept used mainly to provide a safe harbor for hateful ideologies, these protections will be vulnerable as political attitudes evolve,” she writes.

Attitudes are changing quickly among the young, who seem to take a narrow view of free speech rights (only the government can censor you, nobody has a right to a book deal) and who increasingly believe the government should get into the content regulation business. In 2017, Smith College surveyed its students and asked if “free speech should be granted to everyone regardless of how intolerant they are of other people’s opinions.” Only half said yes. When Smith conducted the same survey in 2007, 70% answered affirmatively. Pew says that 40% of Millenials support the government regulating speech that might be offensive to minorities. Nossel recalls a Black woman employee at PEN telling her “The First Amendment wasn’t written for me,” and then concedes that her employee had a point.

Nossel sees danger here and attempts to address it from a couple of a couple of angles.  First, her book is a defense of free speech as an innate human right, necessary for self-governance, economic success and all creative endeavours. But she recognizes this is not enough. While Pen America steadfastly defends, say, the rights of white novelists to write from the point of view of characters from other cultures and while it refuses to support boycotts that threaten to stop publications or to shutter events, she believes that the commitment to freedom of speech will only erode if other values aren’t included.

So, for example, while she’ll defend the rights of white authors to create whatever characters they want, she’ll also push the publishing industry to diversify itself, for its own good and the good of society. Maybe people would object less to the white voice if it weren’t the only voice. She also warns against needless provocation, particularly online, and counsels that better quality speech (knowing what you’re talking about) might pre-empt those social media cultural cancellations that get so much press. It’s the ignorant statement, rather than the innocent statement, that tends to cause people trouble, after all. Also, cool it on calling people “snowflakes.” It doesn’t help.

Of activists compelled to protest the speech of others, Nossel has some requests that will likely be ignored. Say your piece, she says, but stop short of drowning out the speaker. Attack ideas with enthusiasm, she says, but if your activism denies other people the chance to hear a talk, buy a book or see a film, you’ve gone too far. Eschew “The Heckler’s Veto” and don’t celebrate using social power to get people removed from their jobs or books pulled from store shelves. But Nossel’s call for civility has already been rejected by activists who claim the rules for civil debate seem designed specifically to mute their impact.

All of this seems to point towards either a resurgence of government regulation of the content of speech or for the government to encourage and reward large companies and social media platforms for acting on its behalf by running services that look like public spaces but are, in fact, gated gardens where owners can make the rules.

Our current system, where the government takes a largely neutral approach to speech content is only a century old, emanating from Oliver Wendell Holmes’ dissent in Abrams vs. The United States where the Supreme Court allowed for the imprisonment of left wing activists protesting the U.S. contravention of the Russian Revolution. We could easily slip backwards.

“University of Michigan Law professor Catharine A. MacKinnon argues that judicial interpretations of the First Amendment have been progressively corrupting, such that ‘once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful.’” writes Nossel. “She decries that a one-time shelter for radicals, artists, and activists is now used to protect Nazis, Klansmen, racists, and misogynists.”

Countries in the European Union routinely ban hate speech, Holocaust denial and the like. Such laws would be unconstitutional here, but Nossel sees that public opinion is shifting to where most people would likely accept such prohibitions as fine. Then, if laws also required social networks to conform, people wouldn’t object to that either. To most people, the EU is hardly oppressive. So what if it’s illegal for some chump to show off his white power tattoos?

The full-throated defense of even abhorrent speech might become an extreme position in American politics. Nossel is committed to it and her book is necessary right now, both as a guide for how to argue and as a celebration of the moral foundation of an open society. Nossel should win the day. But I’m skeptical she will.

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