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.

































