Free speech fundamentalism?

January 30, 2021 • 11:00 am

As many on the Left try to dismantle freedom of speech, urging us to jettison the courts’ interpretation of the First Amendment so that we can ban “hate speech,” we’ll increasingly see articles like the one below, which calls those of us who adhere to the First Amendment “free speech fundamentalists.” Using the terms “fundamentalist” or “fundamentalism,” as Judith Shapiro does in this Inside High Ed op-ed, is a way of denigrating those who adhere strictly to the First Amendment. It’s the same tactic that religionists use when using the term “fundamentalist atheists” for those who don’t accept the notion of a god. But “fundamentalism” is just a red herring here. What is Shapiro’s argument against free speech?

She doesn’t have one, except the usual palaver that it can be offensive and dangerous. And again, without examples, that’s not an argument, or not much of one. We’ve always argued about whether “offense” or “harm” are sufficient reasons to exercise censorship, and I think most of us have concluded that they aren’t.  Banning hurt feelings or the dissemination of misinformation cannot possibly outweigh the benefits of free expression, and, at any rate, who would be the one to determine what speech should be banned? That answer is always this: the person calling for the banning—in this case Shapiro.

Shapiro, by the way, was the former President of Barnard College, so she was an academic heavyweight. She now serves on various academic and think-tank boards and committees.

Click the screenshot to read her short article.

There are three big problems with her article—problems endemic to the writings of those who urge caution about free speech. The first is that she gives no concrete examples of speech that she considers unworthy of being said. Not one example! While she does mention that the punishments of faculty for speaking their minds have been sometimes disproportionate, the main thrust of her article is an unspecific discussion of how free speech can conflict with “other values.”

The second problem, connected with the first, is that she doesn’t limn those areas where one needs to be careful when exercising free speech. The implication is that those are areas that could purvey either “fake news” (i.e., lies) or hurt people’s feelings. But her lack of specificity is annoying—and probably deliberate.

Finally, Shapiro doesn’t mention who is the person or group that should be responsible for deciding what speech is acceptable or unacceptable. The whole piece is maddeningly unspecific, and winds up with the reader thinking that “Shapiro doesn’t really like a hard-line adherence to the First Amendment, but I don’t know why.”

A few quotes to demonstrate the vaporous nature of the argument:

As important as freedom of speech may be, the failure to put it in the context of other values leads us to some serious problems for our society and, more specifically, for our educational institutions.

In terms of our national political life, we have seen the consequences of defending freedom of speech while attending insufficiently to other essential matters, notably the difference between truth and lies. We face a difficult task if we are to rise to the occasion of saving our form of government.

Does this mean that free speech cannot include lies? Well, the law already prohibits some lying like “false advertising” or “defamation,” and we free-speech fundamentalists agree with that. Or does she think that the lies are okay but we need to attend to those lies more? If that’s the case, there are plenty of people attending to them—like the entire liberal media. Free speech is free because you can call out other people’s lies. Holocaust denialism is a good example of that. Many people think that, like some European countries, we should ban such speech, but I feel it’s very important not to, for the arguments back and forth acquaint us with what the evidence really was for the Holocaust (and also “out” those bigots who engage in denialism).

But wait! There’s more!  Tell me what she’s talking about here, since she gives no examples:

As important as freedom of speech may be, the failure to put it in the context of other values leads us to some serious problems for our society and, more specifically, for our educational institutions.

In terms of our national political life, we have seen the consequences of defending freedom of speech while attending insufficiently to other essential matters, notably the difference between truth and lies. We face a difficult task if we are to rise to the occasion of saving our form of government.

Ten to one she’s talking about Trump. Why, then, doesn’t she say so?

And this:

In addition to emphasizing the importance of speech supported by facts, sourcing and an interest in truth, faculty members need to teach their students — and themselves — how to engage most effectively with those holding different views. They should help students resist the attractions of indulging in self-righteous disdainful abuse. Trying to find out why a person holds certain beliefs is a necessary ethnographic step in the process of dialogue.

Again, this is pious moralizing. None of us want to be abusive, and, as I’ve said, psychologizing can often be a distraction from valuable arguments. You don’t need to diagnose Trump’s mental problems to counteract his claims about “fake news” and ballot fraud.

Finally, when one reads “arguments” like the ones below, one wonders whether Dr. Shapiro really wants colleges to abandon the First Amendment. Public universities must of course adhere to its stipulations, but private ones, like Barnard, should as well. Is there a good reason for private colleges to move away from the First Amendment?

Our attitudes to free speech are part of a wider, uncritical cultural celebration of “freedom” abroad in our land. And thus we see many of our fellow citizens refusing to wear masks during a dangerous pandemic and some of our legislators insisting on their right to carry firearms when they report for their day jobs.

An unreflective approach to freedom of speech is often paired with promotion of a “marketplace of ideas.” Let us note, however, that a marketplace is where you can sell anything — anything — that someone else is willing to buy. That may be a less than helpful or inspirational way to think about a democracy, or, for that matter, a society more generally.

We have already followed the path from First Amendment/freedom of speech fundamentalism to Citizens United, a major contribution to turning our democracy into an oligarchy. Will we follow it to where it undermines what education itself is supposed to give to us?

Not wearing masks has nothing to do with “free speech”, though both can be the object of libertarian diatribes. But believe me, it’s not adherence to the First Amendment that makes people go without masks. The same people who urge caution about free speech are the same people who call for more wearing of masks! And, at any rate, bringing up masks is irrelevant to the First Amendment: one has to do with public health, the other with public discourse.

At the end, Shapiro implies that First-Amendment “fundamentalism” has led to Citizens United v. Federal Election Commission—the 2009 case in which the Supreme Court made a bad decision, arguing that the First Amendment allowed corporations and other groups to make unrestricted campaign contributions. In effect, the 5 Justices construed corporations and associations as “individuals”. This is bad law: a 5-4 decision reflecting a conservative Supreme Court. That’s not the fault of the First Amendment, and has nothing to say about the free speech of individuals. Citizens United is not one stop on a discernible pathway to dismantling our democracy, as Shapiro implies. It was a bad one-off decision that isn’t paving the way for the Third Reich. In fact, I’d say that the path to Reichsville leads through arguments for banning speech.

Does the former president of Barnard not know how to write a coherent essay, or did she just take to the pages of Inside Higher Ed to express vague discomfort with the First Amendment, or is Shapiro covertly suggesting that we might censor some forms of speech now considered legal? I’m not willing to take the “necessary ethnographic step” of finding out what she really believes, and why. Expressing herself clearly is her responsibility, and it’s not my job to figure out what the sweating professor is trying to say*.

* See H. L. Mencken’s wonderful review of Thorstein Veblen’s prose.

35 thoughts on “Free speech fundamentalism?

  1. I knew Judith way, way back when. And she was much, *much* more sensible back in those days. No way would she have argued that there’s anything good to be said for inhibiting free speech (as opposed to thinking hard about what you’re saying so that you don’t say dumb things, which no one would argue with, presumably). I wonder if a career in academic administration had some kind of degrading effect on her powers of ratiocination.

  2. I would like to conclude myself as a free speech fundamentalist (allowing the label for the sake of labelling), but there are instances where I really detest that position. One being the Supreme Court ruling that corporations are people, and in the interest of free speech and other inalienable rights they can use their clout to exert tremendous influence on politics and the passing of laws.
    I really hate that the court apparently got that one right, and would be glad to learn how they were actually wrong.

      1. Agreed. Corporations should not count as “people”.

        Just for example, it would be entirely legal for someone, in choosing guests for a private dinner party, to pick invitees according to race or religion, etc (not necessarily moral, but certainly legal). But it (rightly) would not be legal for a corporation to pick customers or employees on that basis.

        PS: Jerry, the first two quotes are the same.

      2. No corporation can be incarcerated for a crime, nor enter military service to go in harm’s way to possibly be killed or permanently maimed.

        So, Mr. Romney, to at least that extent, corporations are not people, my friend.

      3. I view a corporation as an association of persons and, as such, should have the right to express and promote its interests. For the purpose of transparency, donations to politicians should be open and not routed through PACs. A corporation is a “person” for the purpose of limited liability. Just saying.

    1. I’m not all that keen on getting bogged down in nomenclature, but perhaps the pertinent distinction here is between free-speech fundamentalism and free-speech absolutism.

      Pace Judith Shapiro’s contention that the “free marketplace” conception of free expression entails a place “where you can sell anything — anything — that someone else is willing to buy,” it is not some souk on the dark web where anything goes. Even I, who consider myself near fundamental on issues of free speech, have no quarrel with laws prohibiting kiddie porn, or the incitement of imminent violence, or soliciting or abetting criminal conduct, or the perpetration of fraud. And I don’t believe a fundamentalist view of the First Amendment compels the result in Citizens United.

    2. What goes with the argument that the Supreme Court was arguably right, is that corporations are afforded a range of legal protections like people. They have protections from slander, they have the right to make and enforce contracts, and a range of other rights that resemble self-determination that are awarded to persons. Corporations are not free to commit crimes. They can be fined, barred from previous practices, and broken up (which is sort of like incarceration / capitol punishment).

      1. … corporations are afforded a range of legal protections like people.

        Afforded some, but not others. Corporations, for example, cannot assert a Fifth Amendment privilege against self-incrimination. And they certainly can’t exercise the voting franchise, or the right to marry (although I suppose “mergers & acquisitions” is analogous — hell, they can even terminate spinoff deals unto the third trimester), or many of the other privileges & immunities guaranteed human citizens under the 14th Amendment.

        But aside from such formalistic issues of corporate “personhood” and “citizenship,” the real problem with Citizens United and its progeny is not so much corporate campaign contributions per se, as that it allows virtually unlimited “dark money” to hide behind the veil of political action committees, such that we actual human citizens who put elected officials in office with our votes have no earthly idea which mega-donor Geppettos are pulling our Pinocchios’ strings.

      2. The key word is “afforded.” Corporations are artificial creations of the state itself. They exist by legislative grace for a particular commercial purpose and most definitely are not “persons” within the meaning of the constitution (neither are fetuses). They are denied certain rights, such as the right to vote, and are granted other rights not available to actual persons such as unlimited liability. They are granted certain rights that an actual person can never obtain whether by law or otherwise such as perpetual life. They are sometimes called “legal persons” because, while not actually persons within the meaning of the constitution, the state sanctions their creation and allows the corporation certain rights that are inherent “natural rights” of actual “natural” persons. Thus you cannot enlarge your voting rights as one “person” by forming 10 corporations and thus vote 11 times as 11 “persons.”

        Citizens United was a horrible, results oriented decision that also cravenly threw aside the doctrine of stare decisis. The only place where the constitution granted “inherent” rights to intangible business entities, versus actual “persons” or “the people”, was its grant of freedom of “the press.”

        The Founders were not stupid. “Chartered corporations” existed in colonial America. If they intended that corporations also had “God-given rights” in the manner of people they would have said so.

        “Now the English law of this period laid great stress upon the necessity for a proper legal foundation for the exercise of corporate rights. To be a corporation was a special privilege, not an inherent right, of a group of individuals. And unless a would-be corporation had been “created” or “erected” in due form and by a competent authority, its position was at all times subject to attack, and it was liable to be suddenly and ruthlessly shorn of the powers and privileges it was enjoying.”

        [“Corporations in the American Colonies” by Joseph S. Davis from Essays in the Earlier History of American Corporations Harvard University Press 1917.]

  3. “…without free speech and the right to dissent, the civil rights movement would have been a bird without wings. And that’s historically and politically true without exception. For people who today claim to be passionate about social justice to establish free speech as an enemy is suicidal.” That was Ira Glasser, former head of the ACLU. It’s a very good interview.

  4. “Ten to one she’s talking about Trump. Why, then, doesn’t she say so?”

    Because it would make the article about Trump in many readers’ eyes and attract trolls. These days, if your writing isn’t really about Trump or Biden, best leave them out.

  5. Here’s a way to use the Citizens United decision to our own advantage. If a corporation is a person, it’s a person with its body spread out over half the world, but its “brain” concentrated among its corporate officers. So, if a corporation commits a crime (say, poisoning folks through pollution), then it should be treated exactly the same as any other criminal “person”. Send the cops to tramp into the boardroom and arrest all the officers together, slap them all in handcuffs and march them down to the paddy-wagon, throw them together in the same cell (preferably on a Friday night, so they can’t reach their lawyers until Monday morning), arraign them all together, try them all together, and sentence them all together — as one “person” — preferably in a state with the death penalty. Can’t you just see the entire BOD of Google sharing the same cell in Sing-Sing?

    –Leslie < Fish

    1. As it stands, corporations can be charged and convicted of criminal offenses. And they can be punished by fines, restitution, asset forfeiture, debarment from government contracting, and even corporate dissolution, among other things.

      But there are substantial constitutional due process problems with imprisoning individual corporate officers for the crimes of a corporation unless those officers’ personal criminal culpability can be established by proof beyond a reasonable doubt.

  6. Perhaps people like Ms. Shapiro would have more respect for freedom of speech if they’d stop thinking and writing in academese — if they’d quit cluttering their own thinking and expression with circumlocutions like “a necessary ethnographic step in the process of dialogue.”

    ETA: Whoops, I wrote this right after reading Shapiro’s piece at Inside Higher Ed, before seeing that our host made a similar point at the end of his post.

    1. Yes, that phrase also caught my eye, though it might be argued that your “circumlocutions” be put on the same bandwagon. Or is “bandwagon” also too obscure? 😉

      1. I actually thought about changing “circumlocutions” to something like “empty phrases” for just that reason, but, the more I thought about it, “circumlocution” is reasonably well-defined and seemed like le mot juste under the circumstances.

        Therein lies a distinction between recondite phraseology and empty phraseology.

        1. I think circumlocution is an apt description—it literally means ‘talking around’ something. Shapiro’s piece creates the impression that she’s doing exactly that, talking around some unnamed offense rather than saying exactly what she’s going on about. It’s not quite ’empty’; it’s full of pointers to the kind of thing she wants you to infer as her target, without her getting down to anything too specific.

          What I find particularly offensive about her piece is that reeking, sanctimonious tone, that arched-brow piety that pervades pretty much every sentence. It’s hard not to imagine her pursing her lips and wagging a forefinger at the reader. Combined with her indirection, it comes across as something like ‘Well, you KNOW you’ve been very bad, I certainly don’t need to tell you what you’ve done wrong; if you think about it, you’ll realize exactly how bad you’ve been, and I want you to promise me you’ll never do you-know-what again’…

  7. As you say, it’s a virtually pointless article with little to say. If forced to paraphrase her message, I would say that she’s worried about the use of the free speech principle to defend the telling of lies. As she points out, there are laws against telling lies in certain restricted contexts. I do believe we should add some contexts to that list in order to deal with the our current problems with social media, conspiracy theories, and public officials who invent their own reality. However, Shapiro adds nothing concrete or debatable to that discussion.

  8. As important as freedom of speech may be, the failure to put it in the context of other values leads us to some serious problems for our society and, more specifically, for our educational institutions.

    The FOURTH major problem that Shapiro doesn’t address is how we would punish unprotected speech. We can’t just say some speech is bad, and we have to stop it. The decision to criminalize something, and that’s what we’re talking about, has to be weighed against the negative effects of punishment. Fines? How big? Can’t (or won’t) pay fines? How much jail time? As Mises observed long ago, behind all government action is the threat of violence. Is taboo speech enough of a problem that we should be punishing people for it? (And we’ll leave aside questions of whether any restrictions on “hate” speech would be implemented on a non-partisan basis.) In general, I would say the benefit of free speech is outweighed by the negatives of censorship. (BTW I noticed that Inside Higher Ed turned off commenting on articles a while back.)

  9. It would be good to occasionally to go back and look at history on matters such as this. In the constitution itself there was no pledge of free speech for anyone. Far as Madison and others at the time it was a given but needed no special inclusion in the document. The bill of rights was done by the first congress mainly as a promise to all the anti-federalist out there who wanted to see statements in writing. These amendments would also shut down the politics of holding another convention. But the amendment itself is a promise that your government will not interfere with your ability to say whatever you want. It does not promise that others will do this, just your government. The rest is sorted out by the many courts and judges over the years. Your boss or any other private individuals will likely refuse your speech or conversation any time they want. To me the more important part of the first amendment is that part about freedom of the press.

  10. This seems like a good opportunity and venue to thank jerry for bringing jonathon rausch’s book “kindly inquisitions: the new attacks on free thought”, u chicago press, to my attention last week. I am just on pg 60 of the short 165 page book and see it as opening up a new understanding of the issues around this piece and the wokeness of the left and on college campuses. I am just on my first read-through and will need to study it properly on a second read, but can already recommend it to other weit readers. I will try to write a meaningful review in a couple of weeks.

  11. Clearly Free Speech is not an absolute value because it’s status has varied by society and time across the world. But if Free Speech is not a fundamental value (in the Western World) then what what replaces that position?

    Being ‘nice’? Not saying hurtful things? Courtesy? Acknowledging the authority of our betters? Perhaps all of them may have some worth (YMMV) but they are hardly fundamental to the Western World.

  12. The lack of examples, even generalised, is the biggest problems of this argument for censorship. I always associate it with the woke, and they are an extremely censorious bunch. Examples are aplenty. Take Tim Hunt’s speech with his “trouble with girls” in the lab. Should that be considered as misogynist hate speech?

    Now I think that some arguments against censorship are not as strong as free speech defenders think they are. All areas of currently limited speech have a judge making a decision whether a given expression falls into the category of free speech or into one that might have legal consequences. It’s why the lack of examples of so-called hate speech is such a problem. The laws must be be such that everybody can understand exactly where the lines are drawn. The lack of sharp examples makes it seem as if free speech critics wanted fuzzy rules that lead to a chilling climate. Maybe that’s what they want, but if they want to be taken seriously, too, they must spell it out.

    I have seen exaggerations of stances on many sides of this debate. If we want to bring in some clarity here, I suggest four or five camps on the Free Speech Scale.

    (1) To some people, notably the woke, free speech is itself suspect as “Freeze Peach”. They don’t say what exactly should be changed but are internet famous for their bullying “callout culture” and “speech has consequences” rhetorics.

    (2) Another camp are the “ban hate speech” advocates, who are also coy on concrete examples, but the argument seems a tad more limited.

    (3) Is optional and a bit fine grained, but let’s call them “reformists”, who want to make minor or very specific changes, like adding the aforementioned holocaust denial. Then there’s …

    (4) the “no need to change” camp that accepts some (currently applied) limitations of free speech, such as incitement, child pornography, defamation and some more. And finally …

    (5) what can be well called “free speech absolutists” with a radical libertarian attitude that wants no regulations of speech.

  13. Her CV includes some scholarship on the negative effects of authoritarianism, which surprises me a bit after reading the current article.
    Regardless, it sort of fits with the newest WEIT article, about wokeness, (or at least antiracism) as religion. It was pointed out to me some time ago that the hard left frequently accuse others of the things they themselves are doing. It turns out to be a fairly accurate observation.
    In this case, anyone not enthusiastic about leftist controls on speech is a type of fundamentalist. What I cannot tell is whether accusing others of what you are yourself are guilty of is just a cynical tactic, or some sort of pathology, used without a sense of irony or introspection.

    The larger issue is that I just don’t believe all this rhetoric about feeling unsafe, or experiencing all the other alleged harms from listening to speech you don’t agree with. It seems much more likely that they are just manufacturing such arguments to justify silencing those they disagree with. They never seem to ask themselves what might happen if someday the judge of unacceptable speech is someone on the other side of the political spectrum.

  14. My old university department recently held a zoom meeting, involving both faculty and grad students, about the holy trinity of Diversity, Equity, and Inclusion. I was surprised by the meeting’s intensely therapeutic tone, more like a session of Status Dynamic Psychotherapy than an academic powwow.. There was much discussion of the “harm” grad students could suffer from exams, and from faculty feedback about research presentations—these might be critical, “negative” in tone, or, worst of all, “insensitive”. There was further discussion of elaborate ways to reorganize and pad such feedback so as to facilitate “healing”. Healing?

    All contemporary concern with the fearful dangers of speech are closely connected with this therapeutic outlook. No wonder Lukianoff and Haidt entitled their book “The Coddling of the American Mind”. They ascribe this mind-set to something connected to helicopters and parenting, but I suggest, instead, that it was hatched in the Schools of Ed. In the 1970s/80s, the educrats latched onto the “self-esteem movement” as a new gimmick, and now it has entered common speech—and is aiming to control speech.

  15. Goodness. It doesn’t seem that long ago that the *right* was all into censorship: comic books, TV, horror movies, porn, then internet porn, flag burning.
    DAMN that was annoying and SO MANY REPUBLICAN POLITICIANS were on that bandwagon.
    Now the tide has turned and the turds have washed ashore from the *left* flank.
    So tiresome. Like a toddler screaming “I DONT LIKE IT!”


  16. Perhaps Shapiro argues for balancing. In her view free speech is a big value, but there are other values that sometimes conflict. Then one must balance, and free speech does not always win. I mostly disagree. But most admit that allowing child porn, incitement, and defamation won’t do. She says that falsity –> Capitol sedition; propagation of falsity should be banned. Students’ hurt feelings outweigh right to express racism or insensitivity say to disability. Free speech is not absolute; she wants to balance good vs bad, and extend bans beyond the few, perhaps due to new rapid means of communication that foment evils.

  17. A problem also can come in the form of a large-circulation newspaper corporation revising the old adage that journalism should ‘comfort the afflicted and afflict the comfortable’.

    When learning that during Canada’s 2015 federal election, Postmedia (under then-CEO Paul Godfrey) ordered its metro-daily newspapers to editorially endorse and run paid ads on newspaper covers (a.k.a. jackets) by the incumbent Stephen Harper Conservatives, my disappointment said ‘Say it isn’t so.’

    Two years later, upon reading excerpts from Rafe Mair’s 2017 book Politically Incorrect, I was left feeling angry.
    Within, Mair (the late popular and well-respected B.C. lawyer, politician, journalist and radio host) notes some astonishing quotes by some of Canada’s news-media decision makers.

    During one of its presentations, it was stated: “Postmedia and CAPP [Canadian Association of Petroleum Producers] will bring energy to the forefront of our national conversation. Together, we will engage executives, the business community and the Canadian public to underscore the ways in which the energy sector powers Canada.”

    According to then-publisher of Postmedia’s National Post, Douglas Kelly, “From its inception, the National Post has been one of the country’s leading voices on the importance of energy to Canada’s business competitiveness internationally and our economic well-being in general. We will work with CAPP [Canadian Association of Petroleum Producers] to amplify our energy mandate and to be a part of the solution to keep Canada competitive in the global marketplace. The National Post will undertake to leverage all means editorially, technically and creatively to further this critical conversation.”

    To this, Mair himself exclaims, “This is the formula guiding Postmedia as they hold the oil industry’s feet to the fire!”

    Of course, by this Mair implied that the newspaper giant will likely go easy on the oil industry, which is known for causing major environmental damage and leaving most of the billions of dollars in toxic-mess clean-up costs behind for taxpayers to foot. (Oil companies are supposed to, but don’t, place aside sufficient funds to cover cleanup costs after their operations shut down.)
    In this case, journalism’s traditional function may have been quietly revised. Although it’s supposed to ‘comfort the afflicted and afflict the comfortable,’ it seems there has been a revision, at least when it comes to Big Oil.

    More recently, though, Postmedia acquired a lobbying firm with close ties to Alberta Premier Jason Kenney in order to participate in the latter’s government’s new $30 million PR “war room” in promoting the interests of Canada’s fossil fuel industry. But the newspaper giant’s apparent bedding with the powerful industry is not news (albeit it’s little known amongst the general population).

    I believe that the promotion of massive fossil fuel extraction, even Canada’s very own, should be the last partisan position for a newspaper giant to take.

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