Over many decades, the United States court system has come up with an interpretation of the Constitution’s First Amendment that protects people from harassment and physical attack without deep-sixing the important right to express your opinion without censorship. Here’s that amendment again, just for review:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Today we’re neglecting religion, assembly, and the press (except insofar as they constitute “speech”) to deal with freedom of speech. The evolved interpretation is the following: the government has no right to censor or ban public speech unless it leads to persistent harassment in the workplace, constitutes an immediate incitement to violence, or falls into criminal categories like perjury, defamation, blackmail, or personal threats. Further, public universities do not have to allow just anything to be taught in their classrooms in the name of free speech. Courts have ruled, for instance, that banning the teaching of creationism and its intelligent-design subspecies does not violate the First Amendment.
That’s worked well for America, for all social progress has taken advantage of this liberty while being opposed by those who argued that the progressive speech was, in effect, “hate speech”—speech that would damage society. Thus, civil rights for blacks, for women, and for gays all depended in the public and widespread dissemination of speech that was deemed offensive by others. Now we are seeing anti-religious speech forcing various faiths, including Catholicism, to reluctantly make reforms.
The reason that all speech save the exceptions above is permitted is because, as the Founders realized, nobody should arrogate unto themselves the power to decide which speech shall be “free” and which speech shall be disallowed. If you give government (or anybody) that kind of power, then there’s no guarantee that the speech you think should be banned might someday include your speech (see examples below).
In his famous pamphlet On Liberty (1859; the same year as Darwin’s great work), John Stuart Mill gives several arguments why speech we see as odious should be allowed. One is that only through the clash of ideas in public can we arrive at social progress and morality advance. That kind of give-and-take is why, ultimately, America turned against racism in the 50s and 60s despite Southern attempts to ban anti-racist demonstrations—a form of speech. After all, before then racist speech was given more license in the South than was anti-racist speech.
Further, banning speech does not quash the ideas behind it; it simply drives them underground, where they fester unopposed.
Another important reason to allow “hateful” speech is because it hones your ability to combat it, something that wouldn’t happen were you not allowed to hear it, consider it, and confront it. My usual example Holocaust denialism, which is in fact banned or criminalized in countries like Switzerland, France, Germany, Poland, and Belgium. But if you don’t get to hear arguments why the Holocaust didn’t happen, how can you be sure that it did? How do you counter the argument that “Hitler never authorized on paper a mass extermination of the Jews” unless you can hear that argument? How else, without hearing counterarguments, can you address the claim that 6 million Jews and 4 million others weren’t killed, but just displaced? Related to this is Mill’s claim, which I think is correct, that successive generations tend to forget the arguments against odious ideas unless they get to encounter them repeatedly—which means allowing them to be disseminated in perpetuity.
Recently, however, we see—mainly from the Left—explicit criticisms of the First Amendment: attempts to say that that Amendment doesn’t apply to “hate speech”. What “hate speech” is, of course, depends on a person’s views. While a progressive may say that speech denigrating ethnic minorities or transgender people should be banned, Muslims may argue that criticism of Islam should be banned. But these categories are sufficiently flexible that they allow for stifling real debate. Islam, of course, shouldn’t be free from criticism, and why should we not be able to debate whether there should be quotas for immigrants, affirmative action, the right to bear arms, restrictions on abortion, and how to deal with transgender people (indeed, even feminists debate the last issue)? Yet laws against “hate speech” could in principle encompass these subjects. Indeed, many Leftists consider discussion of these topics taboo.
There are several things that people misunderstand about the First Amendment, including these:
- Free speech refers to government and its institutions, not to private, non-governmental groups like private universities.
- No private group has to accept a speaker regardless of their views; this is a decision that each group must make for itself. That said, it doesn’t further free discussion to allow only speakers who completely agree with your (or your group’s) ideas.
- Allowing somebody to speak, even in a public university or school (which are considered arms of the government) does not constitute approval of that speech. A university, for instance, can always issue a disclaimer that a student-invited speaker’s views are not those of the university itself.
- Legal sanctions are not equivalent to ethical ones. A private university, for example, is wrong (though not illegal) if it tells student groups that political conservatives will not be allowed to speak. We must always remember that the reasoned clash of ideas promotes social progress. That’s not just wishful thinking, for the history of the world supports it. Even if you don’t have to allow speech that you don’t like, sometimes you should, just to promote discussion.
Unfortunately, P. Z. Myers, writing on his blog Pharyngula, has begun to mirror what a lot (but not all) people on the left are thinking: we should start considering rewriting or reinterpreting the First Amendment so that certain kinds of speech, heretofore allowed and legal, should be banned. While I don’t like to get into “website wars”, particularly with those whose views I don’t generally respect, I thought that a recent post on Pharyngula was worth highlighting.
The post is called “The irony of it all: free speech used as a cudgel of oppression.” Its message is that there should be no free speech that oppresses minorities (no definition of “oppression” is explicitly given, though representative speakers are named). It is the familiar argument that we should ban “hate speech”—but as it is defined by P. Z. Myers. Here are a few quotes from his piece (emphases in bold are mine, indented words are Myers’s):
There is an argument going on right now between fascist white nationalists and universities in which administrators and centrists are caving in before the magical mantra of “free speech!” This is what happens when you lose perspective and decide that one right trumps all the others. In the name of Free Speech, people who believe millions of other people should lose all of their rights and be deported, deprived of recourse to legal redress, be kicked out of school, or even imprisoned or murdered, get to further incite these gross violations of liberty on college campuses.
This is a gross misunderstanding of “rights”. There is no cross-purpose between the right to speak freely and the rights that the law says that various groups should enjoy. We have the right to argue that African-Americans should be denied equality under the law, but as a result of such arguments, blacks gained civil rights for voting, housing, and other public goods. “Free speech” did not trump civil rights; it helped promote them. There is no conflict between enforcing the First Amendment and making laws that affect immigration, civil rights, discrimination, and so on. A law allowing free discussion cannot trump rights enacted after such discussion. What can trump progress are laws banning discussion of certain topics. Imagine, for instance, if Americans were not allowed to criticize religion.
Myers goes on:
. . . “Free speech” is an all-purpose slogan disingenuously used to mask violent threats and an outright take-over of, ironically enough, the right of free speech. You don’t really believe that Ann Coulter, Steve Bannon, and Milo Yiannopoulos are making a principled defense of socialists, communists, academics, artists, and progressives to discuss their ideas, do you? They hate those guys! They want to intimidate and suppress liberals, and have found that mouthing the words “free speech” are a great way to do it, since moderates tend to cave before it.
While I am no fan of Coulter, Bannon, Yiannopoulos, and their ilk (and readers should know this by now), they invoke the concept of freedom of speech not to promote the speech of their political opponents, but to ensure that they themselves get to speak. After all, everything that Coulter, Bannon, and Yiannopoulos say in public is legal, as much as you may despise it. And, to be sure, a lot of what they say is not just the spewing hatred, but offering opinions about social policy. While their opinions are usually odious, they inspire discussion (see all the articles about Bannon and the others actually engaging with their views).
Remember, too, that by and large it is not the Right who tries to shut down speakers considered offensive. As the FIRE “disinvitation database” shows, since 2010, and especially in the last three years, the bulk of censoring and deplatforming of speakers at colleges came from the Left. This is shameful for a political ideology that has traditionally favored free speech.
. . . We also mustn’t forget that these “free speech” advocates are using it as a tool to do harm to minorities and women — and behind their strategy is an appeal to the comfortably privileged to sit back and let them do the dirty work of securing their sheltered nice ideals at the expense of the life and liberty of the underclasses.
There is some justice, perhaps, to this claim, as I’m sure there is racism behind some speakers’ views—certainly those of white supremacists. But the “comfortably privileged” don’t just sit back and allow people like Yiannpooulos, Bannon, or Coulter to spread their views unopposed. Most of us on the Left use our free speech as counterspeech against the idiotic views of the Right. I in particular have gone after Coulter as well as the idiotic views of Bannon’s far-right colleagues. I’m not going to spend time here defending my Leftism, except to say that I have never espoused free speech as a way to keep my “privilege.” If that were the case, I should be trying to censor Nazis who, after all, would have me killed were they to gain real power. (I’m a secular Jew, but the Nazis didn’t care whether a Jew was religious or not.)
Here is the most addleheaded statement in Myer’s piece, where it becomes clear that he doesn’t support free speech if it “supports the status quo.” By that he means if such speech somehow disenfranchises minorities or enforces “privilege.” In other words, he supports only one form of protected speech:
. . . I’ll support your call for free speech when you stop using it to marginalize the right to life, liberty, and the pursuit of happiness for everyone else, and when it stops being a proxy for defending the status quo and your privileged status rather than the right that allows the oppressed to have a voice.
I’m sorry, Dr. Myers, but the oppressed do have voices, and they use them. You can read about the grievances and injustices of the oppressed in the mainstream media like the New York Times or the Washington Post, or in left-wing sites like PuffHo or Everyday Feminism. Neither the government nor the mainstream media censor the marginalized. To the extent that groups are marginalized, it is not because they lack exposure, but because there are groups who oppose their rights. This opposition cannot be overcome by censoring the speech of those opponents, because, after all, rights are won by public opinion, law and the legislature: areas where debate is necessary and constant.
Myers doesn’t realize that many of the leftists who call for free speech do so not because they’re trying to retain their privilege, but to further social progress, and that means letting the other side have their say, allowing us to fight back—with words. And we want the Right (and yes, that includes bigots and racists) to have their say precisely because it gives us something to fight back against.
Finally, as we all know, the big problem is this: who is to be the Decider of what speech shall be free—what speech can be uttered and what speech can be heard? I sure don’t want Trump to do it, nor do I want P. Z. Myers, a dime-store tyrant if ever there was one. The best solution is the one that our courts has hit on: nobody is to decide what speech should be free; it should all be free—with the few exceptions outlined above.
It would behoove Dr. Myers, his minions, and other Leftists contemplating ditching the First Amendment to read the New York Times article below (click on the link), which explains very clearly why “hate speech” much be allowed and why nobody, including Myers, should be allowed to decide what speech should be free. As Christopher Hitchens often said (though not in these words), giving somebody the right to censor speech that is not your speech allows for the possibility that another censor may turn around and bite you on the tuchas.
A few quotes from the Q&A (the Berkeley dean is First Amendment scholar Erwin Chemerinsky; his interlocutor is Natalie Shutler, head of the Times‘s “On Campus” column).
Natalie: But you do take a hard line in your book [Free Speech on Campus, written with Howard Gillman] that even hate speech must be protected.
Erwin: The law under the First Amendment is clear: Hate speech is protected speech. Over 300 colleges and universities adopted hate speech codes in the early 1990s. Every one to be challenged in court was ruled unconstitutional. And there are good reasons for that.
After some really ugly incidents at the University of Michigan in the late 1980s, the school adopted a hate speech code that was undoubtedly well intentioned. But a federal court declared it unconstitutional, in part, because it was so vague. It said that there could not be speech that “demeans or stigmatizes” anyone based on race or gender. But what does that mean? A sociobiology student who challenged the law said, “I want to study whether there are inherent differences between women and men. What if my conclusions are deemed stigmatizing on the basis of gender?” And during the years Michigan’s speech code was on the books, more than 20 black students were charged with racist speech by white students. There wasn’t a single instance of a white student being punished for racist speech, even though that was what had prompted the drafting of the Michigan speech code in the first place.
That’s part of a much bigger historical pattern: As we saw in Michigan, when hate speech codes or laws are adopted, they are most often directed at the very groups they are meant to protect.
Natalie: What about the argument that some inflammatory speakers come to campus with the express aim of creating a hostile environment?
Erwin: It is important to recognize that a public university has no choice but to allow speakers on campus even if their message is regarded as hateful or racist. If the campus tried to exclude such a speaker, it would get sued and the speaker would win and likely would be made a martyr for the First Amendment in the process. Nothing can be gained by exclusion. But the campus must ensure safety for its students, staff and faculty. This might include regulating where the controversial speaker is allowed to be present and, likely, it will include more of a police presence. I am sympathetic to the concerns of students who are wary about more police coming to campus, but not having law enforcement present in the face of a danger to public safety risks even greater harms.
The central principle of the First Amendment — and of academic freedom — is that all ideas and views can be expressed. Sometimes they are ideas and views that we might consider noble, that advance equality. Sometimes they might be ideas that we abhor. But there is no way to empower a government or campus administration to restrict speech without allowing for the possibility that tomorrow, it will be our speech that is restricted.