Ira Glasser: Why we need freedom of speech, even if it’s offensive and hateful

January 23, 2023 • 9:20 am

The University of Chicago and some of our faculty are pondering creating an orientation module on free speech for incoming students—a module that’s all too rare but essential, for “progressive” students are beginning to oppose free speech and the First Amendment since some speech is seen as “harmful”, “offensive”, or even “violent.”

I wrote to a few people involved in our campus endeavor and told them this:

This short article by Ira Glasser (former head of the ACLU) is the best concise explanation of why we need the First Amendment that I’ve ever read. It carefully explains why all speech—including “hate speech”–must be protected. Naturally, it appeared in a right-leaning site, Spiked, but that makes no difference.
Were I to construct an orientation for first-year students here, I’d have them read his piece (it also explains why all progress in social justice has required freedom of speech):
. . . and also watch Christopher Hitchens’s 20-minute defense of free speech; a tour de force of rhetoric:
Even if you already know all the reasons why free speech—with the few exceptions carved out by the court—is in the Bill of Rights, you should still read this article by the estimable Ira Glasser, head of the American Civil Liberties Union from 1978-2001. I’ve written about him several times, including this interview as well as a blurb for a very good movie about his career, “Mighty Ira.

Now Glasser has just published a very good piece in Spiked that I highlighted above (naturally it’s on a right-leaning site, for the Progressive Left is not so keen on free speech because it can include “hate speech”). It’s hard to get a defense of free speech published in a liberal place.

Glasser’s message is simple and compelling; click on the screenshot to read it:

The parts of the article essential for a modern student’s introduction to free speech is Glasser’s explanation of not only why “hate speech” must be allowed, but also why progressive social justice of the good type requires freedom of speech.

I’ll give a few excerpts. I hope college administrators can and will use this piece to introduce students to the purpose and meaning of the First Amendment.

This describes why the ACLU defended the racist George Wallace’s right to speak in New York City after the mayor had banned him.

For example, the First Amendment protects the right to free speech and assembly by barring the government from abridging such rights. That is how I was able to stop the mayor of New York from banning George Wallace from speaking in 1968. Why did I do it? Because what if George Wallace had been elected? He had already been elected as governor of Alabama. He was trying to get elected as president (and he had considerable support). If he had gained political power, he would not have hesitated to suppress or punish my speech, or the speech of others I supported.

So I needed an insurance policy. I needed a legally supreme rule that barred him from curbing my speech in case he gained political power. And in order to do that, I needed to stop the then mayor of New York, a liberal whom I supported, from using his power to silence Wallace, a reactionary whom I feared. The two were linked because the antagonist of liberty is always power. And because power is fickle and unpredictable.

In a democracy, you can never know who will have power. So all power must be limited in order to protect liberty, including speech. That’s what liberty is: a legal limit on democratic power. The right to freedom of speech is guaranteed only by limiting the power of any government to abridge it. By defending George Wallace’s right to speak when he doesn’t have power, you insure against his curbing your right to speak should he gain power.

On the two-edged sword of bannng speech:

When Martin Luther King, Jr and his colleagues marched, white and black, hand in hand, in America’s deep South, the majority of residents there found King’s vision of an integrated society deeply offensive and tried, on that ground, to ban his speech.

We may find the two examples vastly different. They are vastly different. But if being offensive was allowed to justify banning speech, and if what is offensive were decided by majority vote, then civil-rights marchers would have been banned in Alabama, just as neo-Nazi marchers would have been banned in Illinois.

Could the two cases have been separated, and decided differently? Consider this: those same neo-Nazi marchers in Skokie were also banned from demonstrating in a park in Chicago, along with rival demonstrators from the Martin Luther King, Jr Association, a civil-rights group. Both were banned, based on the same law. And both bans were struck down by the First Amendment, which bars the government from enforcing such a law. The rights of both groups were thus joined together, even as their goals were diametrically opposed.

There was – indeed there is – no way around that. That is why the price of permitting King to speak in Alabama was to allow Wallace to speak in New York. And the cost of banning Wallace from speaking in New York would have been to allow Alabama to ban King from speaking in Alabama.

Finally, the part that may stir the thought of “progressives” who want to ban offensive speech:

What progressives say they care about most is social justice. And for many progressives, free speech and social justice seem to be antagonists. How, they ask, does defending the right of people to advocate bigotry advance the cause of social justice? In their view, prohibiting speech because its content is bigoted or hateful would seem to advance social justice.

Such speech is a barrier to social justice, they say. Permitting it makes it harder to eradicate the layers of prejudice against women and people of colour that has resulted, and still results, in invidious discrimination and subjugation.

I certainly have no quarrel with the passion to end such discrimination and subjugation. I have spent most of my adult life fighting to do just that, and I believe that although much progress has been made, we are still far away from the day when we can declare that fight definitively won. So opposing the content of racist speech remains vital. But believing that, in order to advance social justice, it is necessary to give the government the power to ban speech is self-defeating. Giving the government this power harms social justice. That’s because, in practice, social justice depends on free speech, and always has.

Historically, in the United States, every fight for social justice began with free speech, depending on speech to initiate and sustain the movement to right wrongs. In the early years of the 20th century, for example, the nascent labour movement critically required (and did not often enjoy) the right to meet, to leaflet, to demonstrate and to picket in order to convert workers’ powerlessness into success against oppressive employers.

Also during the early 20th century, the movement to end the lynching of black people, led by courageous advocates like Ida B Wells, totally depended upon freedom of speech and the right to publish. Without these freedoms, it would not have been able to spread the word about the epidemic of lynchings in the South and to gather and build opposition to it.

Or take the case of Margaret Sanger, the founder of Planned Parenthood. In 1916, she was arrested in New York City nearly every week for distributing informational leaflets on birth control to women victimised and, yes, effectively enslaved by unwanted pregnancies. The beginning of the reproductive-rights movement required freedom of speech the way a new plant requires water and sunlight.

And of course, in our own time, the civil-rights movement could not have ended legalised racial subjugation without freedom of speech. The First Amendment protected the early efforts of activists to call attention to the abuses of skin-colour exclusions and build the support needed to end them. In 1955, for example, Rosa Parks sat down on a seat reserved for whites on a Montgomery, Alabama bus, and a then unknown young Baptist minister named Martin Luther King, Jr stood up to support her, by organising a boycott of those buses. None of that would have been possible without the protection of the First Amendment.

If this doesn’t convince people to adhere to First Amendment principles, on or off campus, well, there’s no hope for them.

Here’s a 7-minute clip of Mighty Ira defending freedom of speech on Bill Maher’s show, as well as criticizing the modern ACLU for preferring to defend speech that isn’t “harmful”. The ACLU has undergone a severe erosion of its founding principles since Ira was at the helm:

26 thoughts on “Ira Glasser: Why we need freedom of speech, even if it’s offensive and hateful

  1. In a democracy, you can never know who will have power. So all power must be limited in order to protect liberty, including speech. That’s what liberty is: a legal limit on democratic power. The right to freedom of speech is guaranteed only by limiting the power of any government to abridge it. . . .

    The first target of the government’s restriction of speech is never the last. And that’s the crucial point about First Amendment rights: if we allow the government the discretion to ban hateful speech, the only important question is who gets to decide what’s hateful. We can be sure it won’t be those who are oppressed, nor their advocates.

    I think these statements just about cover it.

    Among his other examples, Glasser could also have mentioned the extended efforts by slaveholders in the 19th century to limit negative discussions of slavery, by censoring the mails, limiting petitioning to Congress, and restricting freedom of the press in those areas where they had control (and trying to where they didn’t). Indeed, it was this activity that turned many Northerners from indifference to slavery to hostility.

  2. I love Ira Glasser. Thanks for posting Jerry, it’s also a great succinct resource for specific examples to use if you get into a free speech discussion. And these days, it’s not “if.”

  3. Very clear and good arguments on this subject. The arguments from the far left may tend to devolve to emotional sputtering and accusations aimed at shutting down conversation. But suppose someone from over their calmed down and said this:
    “We can agree that past restrictions on free speech would have interfered with advancement of basic social justice — the right to vote, the right to read, and the right to have an abortion, for example. But our society has evolved to where most people are supportive of these and other things, and now the old tools for that battle are more of a hinderance than a help. What was free speech in the ’50s and ’60s is nothing compared to the firestorm of so-called free speech that is available in social media today. Now hate speech can reach millions, and those publishing it can find where you live and where you work. The effect of hateful free speech is so much more damaging now, well beyond what the formulators of our laws could have imagined.
    It’s like the 2nd amendment was meant to allow the right to bear flint-lock rifles 200 years ago, but no one at the time imagined that would be used to defend the right to bear an AR-15.”

    How would we rebut that?

    1. I guess I would say it doesn’t seem like a coherent argument. If most people now support basic social justice, then hateful free speech is evidently less damaging now (not more damaging) even if it’s delivered via social media fire hose.

    2. Who exactly is it who should be empowered to determine what constitutes (or does not constitute) so-called “hate speech”? Human nature being what it is, there will always and forever be speech which can be (unfortunately) “hateful”, but the concept of “hate speech” is entirely illegitimate as well as unconstitutional.

      1. Hate speech is a Criminal Code offence in Canada (Sec. 319)
        (Section 318 separately criminalizes Holocaust denial even if it didn’t meet the criteria in S. 319 for hate speech.)

        Since J E was asking who exactly is empowered to determine hate speech:

        As for any criminal offence, the police, Crown attorney, and the trial judge (plus jury if the defendant elects one) do their usual things and a verdict emerges at the other end. Lawyers in Canada say, The law is whatever a judge says it is. Particularly here, since “hate” is not defined in the Section and so judges would cite precedent from previous cases, nearly all of which have related to antisemitism. Much (all?) would depend on how the judge charged the jury (if the accused had opted for a jury trial) as to what they were to consider as “hate” in this instance. It has to be virulent and vilifying, not just disdain or dislike. Most cases (but not all) have involved advocacy of killing or violence or dispossession. The judge lays down the law and the jury decides if the facts alleged by the Crown are true beyond reasonable doubt. Most cases, whether acquittals or convictions, have been appealed to at least one higher court with non-unanimous decisions.

        A summary of landmark cases since 1990 is here:

        Two points:

        Our law on incitement to breach the peace is contained in Sec. 319. Inciting violence in Canada appears to be illegal only if the incitement is motivated by hate against an identifiable group, not just an individual. This seems as if it couldn’t be true but Sec. 319 is the only hit I got for incitement in the Criminal Code. Criminalizing speech that incites violence is probably reasonable. It’s just weird to see it under hate speech and, apparently, nowhere else. There is no offence of inciting a riot or a seditious conspiracy either, just participating in one. Insurrection is considered treason but again, inciting isn’t the offence.

        For alleged hate speech not inciting violence, truth of the statements is a robust defence, as is one’s reasonable belief that they are true when discussing a topic of public interest. So no matter how much infuriated offense members of some identifiable group take from bona fide arguments you make, it is not hate speech even if the good-faith statements you disseminate cause the group to be more hated by the public generally. This disappoints activists. Because truth is a defense, all the charges that have been prosecuted have been of the lunatic fringe who make evidence-free calls for vilification.

    3. The argument for curbing free speech has accompanied every advance in mass communication technologies, from the advent of the linotype printing press, to mimeograph machines, to radio, to television (among others).

      It’s no more valid now than it was then. The free-speech sky is not falling.

    4. Alternatively: “We can agree that past restrictions on free speech would have interfered with advancement of basic social justice” . . . but now that we and supporters of our causes have gained significant political and cultural power, it is time to exercise that power and restrict significantly the so-called “liberty” of those who oppose all we deem righteous and true.

      As to your point about hate speech, are the words of random trolls and other miscreants on social media really more damaging to people than, say, the gossip, shunning, and outright ostracization that has governed life in small-town communities throughout human history at times when people were far more dependent on their families and neighbors than they are today?

  4. Banning speech only serves to push it underground where it can draw adherents, fester, and lead to violent acts that are even worse. The remedy for bad speech (speech promoting injustice) is better speech. The good cannot eliminate the bad by pushing it underground. The good must improve their talents at delivering better speech (speech favoring justice), and the good must beat the bad in plain view. For only then will the good spread and become part of the shared social fabric.

    The American civil rights movement, the Vietnam anti-war movement, the women’s movement all bent the curve toward justice by offering good speech, well delivered. The rest of the nation followed.

    Many years ago, when I was at Virginia Tech in Blacksburg, Virginia, the KKK came to rally. Did the city or university try to stop them? No. When the half-dozen KKK members arrived in Blacksburg, no one else showed up, not even the press. They went away and were never heard from again.

    1. Unlike what will happen now with demonstrations from the racist elements of the far right, where they successfully bait the lefties in violently opposing them. Getting into brawls is exactly what they wanted so they can brag about their credibility and relevance.

  5. While I liked the essay, I think it will only convince those of us that already agree with it. The woke mob “know” they are on the right side of history and have power, so if they use it to try to suppress racist, sexist, or anti-trans speech then society can only get better (Much like Orwell’s idea of restriction of language).and can keep those who have opposing positions out of power.
    I would have also added that ideas need to be challenged and debated to weed out the bad ones and allow the good ones to propagate. If you don’t question the opinions of others, they won’t consider other opinions, or recognize that their opinions are not based on sound reasoning.

  6. Such speech is a barrier to social justice, they say. Permitting it makes it harder to eradicate the layers of prejudice against women and people of colour that has resulted, and still results, in invidious discrimination and subjugation.

    I think there’s a disturbing new element to current arguments against hate speech: the introduction of “fragile people in emotional danger.” Certainly civil rights movements regularly referred to the damage done to the minds and hearts of those targeted by discrimination and prejudice. But the underlying assumption was that these were otherwise ordinary people. A black child turned away from a whites-only swimming pool or a woman passed over for promotion because she’s not “supporting a family” suffered because of these actions. We didn’t import into them a background story of mental health issues caused by repeated traumas. We didn’t approach social justice like therapists handling a client in danger of an emotional breakdown.

    The objections to Free Speech coming from the Left takes many forms. Sometimes yes, it’s to help along laws that are seen as doing Good and suppress “misleading false narratives.” But I’ve also noticed an increasing focus on the psychological state of the individuals who have to hear it. The need for safety extends beyond the need for the actual law and shifts to the present moment. Someone can’t sleep, can’t go to work, can’t show up for class, can’t exist— because of what is being said about them, right now. Their self-esteem and self-worth are eroding.

    I don’t know. I may be exaggerating this particular aspect of current objections to Free Speech. But I don’t remember social justice movements in the past being quite like that.

    1. I think you’re right. The imagined “harms” definitely come into play in today’s discourse. The “harms” paradigm needs to be exposed as what it is—a ploy by the radical left to strengthen their hand. After all, who wants to harm people? Poppycock.

  7. Naturally, it appeared in a right-leaning site, Spiked …

    I wouldn’t regard Spiked Online as “right-leaning”. It’s more contrarian-leaning, and is anti-woke and pro-free-speech, but it’s not really “right-leaning”.

    For example the editor and main writer, Brendan O’Neill, was a communist activist for much of his writing career, and still identifies as a Marxist (or “Marxist libertarian”), but is basically a contrarian.

    1. Shame on you. Politics and government are serious business. When degraded to entertainment we get MTG, Tucker Carlson and the shit show. People died for our democracy. Watch the Kardashians for low entertainment and consider whether you should be voting.

      1. I was being cynically sarcastic. The level so many of them have degraded themselves down too I’d reckon Kim Kardashian may even be more mature on them.

  8. The outcome of the Nazis having the right to march on Skokie was they decided not to do it anyway. Also, it made a case that the holocaust wasn’t just a piece of European history but relevant in the USA. As a result, we have the official United States Holocaust Memorial Museum in Washington DC. The remedy for bad speech is more good speech.

  9. There are different kinds of speech. What about propaganda? We know its destructive power. Should congress pass a law that directs the FCC to revoke the license of any organization that can be shown to have “knowingly broadcast false or misleading information?” How would you vote on this?

    1. It’s the same problem: Who decides what is propaganda? Who decides what is false and misleading? If it’s the government, it’s fine when the people in power have the same general worldview as you do, but what happens if people you strongly disagree with get in office and decide things you consider factual, objective and obvious to be propaganda?

      Better to fight speech with more speech. Find the private fact checkers you trust and listen to them. Don’t allow the government to decide what is acceptable speech.

      1. Even when the people in power do have the same general worldview as you do, they can still tend to “curate” the message to their advantage. All political parties do that.

          1. I’ve found the best way to identify propaganda is how emotional it is, the drier and franker it is the more factual it may be and the more vibrant and emotional it’s more likely political BS.

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