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Free Speech and Its Present Crisis

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Free Speech and Its Present Crisis

In today’s America, the right to express one’s opinion is threatened by activists and authorities alike. Autumn 2018
The Social Order
Education
Politics and law

What we know today as the First Amendment was first proposed by the Virginia state ratifying convention during its approval of the Constitution in June 1788. The Virginia resolution declared that the free exercise of religious worship could not “be cancelled, abridged, restrained or modified” by the new federal Congress, nor could any other essential rights, including “liberty of conscience and of the press.” James Madison drafted the formal amendment to adopt these principles, and the addition was finally ratified by the states on March 1, 1792:

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.

Madison believed that the freedoms guaranteed by the First Amendment were the source “for all the triumphs which have been gained by reason and humanity, over error and oppression.” Even so, the new nation experienced backslides into censorship from the very beginning. The Alien and Sedition Acts were passed in 1798, and mobs gathered to suppress political speech in New York and Baltimore in 1804, 1810, 1811, and 1815. In 1835 alone, there were 147 political riots in the United States, leading to the deaths of 63 people. An 1837 riot in Alton, Illinois, caused the death of the abolitionist editor Elijah Lovejoy and prompted the first great political speech of the up-and-coming Illinois lawyer Abraham Lincoln. Not until after World War I did the U.S. Supreme Court finally and unambiguously prohibit censorship, saying in Abrams v. United States (1919) that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Nearly a century after free speech became the unambiguous law of the land, it is nonetheless losing its sway over public opinion. Today, many people who claim to support freedom of expression regularly turn around to suppress the views of others. In her Constitution Day lecture at Princeton University last September, anthropology professor Carolyn Rouse called free speech a political illusion, a baseless ruse to enable people to “say whatever they want, in any context, with no social, economic, legal, or political repercussions.” There are, Rouse said, varieties of speech, and not all of them should be deemed deserving of the protections of freedom. What, then, serves to sort out the speech that does from the speech that does not deserve the shield of the First Amendment? Rouse’s answer is culture: “culture is what helps us determine the appropriateness of speech by balancing our rights as enshrined in the Constitution with understandings of context.” And by culture, Rouse means her vision of culture. A climate-change skeptic, she explained, has no right to make “claims about climate change, as if all the science discovered over the last X-number of centuries were irrelevant.”

Climate change is not the only topic for which many are seeking to censor open debate. In December 2016, Rouse organized a walkout of a lecture by sociologist Charles Murray, charging in a flyer that Murray represented the “normalization of racism and classism in academia.” This is the same Charles Murray who was later shouted down and physically attacked by student activists at Middlebury College. In an even more sensational confrontation, campus authorities at Evergreen State College refused to protect biology professor Bret Weinstein from physical threat by angry student activists after Weinstein, a self-avowed progressive in politics, questioned the wisdom of a day of racial “absence” that excluded white students from the Evergreen campus. In a foreshadowing of Rouse’s Constitution Day rationalization, the Evergreen activists insisted that Weinstein’s questioning violated the norms of Evergreen’s culture. “He has incited white supremacists and he has validated white supremacists and Nazis in our community and in the nation. And I don’t think that should be protected by free speech,” said one student in a Vice News interview on the protest.

This bleak view of open speech is not merely the reserve of a dismissible fringe. More college students than ever claim to have reservations about free expression. Forty-four percent of surveyed students told the Brookings Institution that they do not believe that the First Amendment protects free speech, compared with the 39 percent who believe that it does. A full 20 percent of respondents maintained it acceptable to inflict physical harm on those deemed to have made “offensive and hurtful statements.”

The rights that Madison worked to preserve in the name of reason and humanity now yield to the dictatorship of “culture.” Professors, students, and their intellectual allies act as though our country were a tribe rather than a republic, in which any unapproved remark becomes an illicit defection from the mandated social order.

There may be some relief in realizing that the attacks on free speech have a history of their own, one that has, from time to time, gained a measure of temporary credibility, only to have its underlying folly pull it back out to sea. The Puritans of Massachusetts Bay were confident enough of their culture to insist that any deviation from it was a violation of truth itself. In this worldview, toleration of different beliefs would only sow confusion among the believers, who needed no further enlightenment. “He that is willing to tolerate any religion,” wrote Nathaniel Ward in 1647, “or discrepant way of religion, besides his own, unless it be in matters merely indifferent, either doubts of his own, or is not sincere in it.” Supporters of the 1798 Alien and Sedition Acts were no less confident in the axioms of their political culture and likewise felt no need to learn anything from what they regarded as palpable error. “Truth has but one side and listening to error and falsehood is indeed a strange way to discover truth,” wrote the Pennsylvania lawyer Alexander Addison, in what might have passed for a parody of Rouse’s Princeton lecture. Contempt and fear of free speech also characterized defenders of slavery. In 1835, Postmaster General Amos Kendall yielded to demands by slaveholders to censor the mail and justified his decision by appealing to cultural values over political liberty: “We owe an obligation to the laws, but a higher one to the community in which we live and, if the former be perverted to destroy the latter, it is patriotism to disregard them.”

“Professors, students, and their intellectual allies act as though our country were a tribe rather than a republic.”

Today’s despisers of free speech have their roots in a different ideology from the tribal sort that was used to justify slaveholding and Puritanism. This newer ideology began with Karl Marx—or rather, with the struggle of Marxist intellectuals to explain the failure of the European proletariat to rise in violent revolution at the outbreak of World War I. Rather than joining in solidarity with the working classes of other nations, European workers rallied in dismaying numbers to their national flags, exhausted themselves in a four-year killing spree that beggared all previous descriptions of war, and then succumbed to waves of populist fascism. The only revolution that Marxists could tease out of the charnel house of the Great War was a coup d’état in the most backward and least industrially developed empire of Europe and, even then, only by the substitution of what Vladimir Lenin called a “vanguard” of Marxist elites rather than a spontaneous uprising of the workers.

It became the task of Italian Marxist Antonio Gramsci to reconcile the oddity of this situation with Marx’s larger worldview, and he did so by conceding that Marx had missed an important detail: the working class is oppressed, not just by the political and economic power of the European ruling classes but by ruling-class culture, which entices or persuades the working class to adopt the cultural values and attitudes of its rulers. For class revolution to work, nations would first have to rid themselves of the oppressive speech of the bourgeoisie. Gramsci’s ideas crossed the Atlantic in the 1930s and 1940s, and won their biggest following among Americans of the New Left in the 1960s, who declared that freedom of speech was merely the tool that the dominant class used to drown revolutionary messages in a flood of meaningless and distracting blather about freedom and tolerance. Under the plea of free speech, wrote New Left doyen Herbert Marcuse, “tolerance is extended to policies, conditions, and modes of behavior which should not be tolerated because they are impeding . . . the chances of creating an existence without fear and misery.” This argument is practically indistinguishable from the plea of censors from days past, but it reclothes that plea in the more appealing garb of resisting oppression.

It does, however, allow us to draw a bright line between the attacks on free speech and the recent craze for monument removals that began in New Orleans in May 2017 and peaked after the Charlottesville riot a few months later, in August. In the world of Marxist ideology, there is nothing but political power in play; considerations of reason, debate, and discussion are merely the cultural shams that Gramsci and Marcuse identified as tricks to oppress the downtrodden. The Confederate statues in New Orleans and Charlottesville that have been at the eye of this storm cannot merely be statues; they must be statements of power, because everything is a statement of political power. “The monuments,” declared one University of North Carolina professor, “made a very pointed statement about the rule of white supremacy: All who enter the courthouse are subject to the laws of white men.” No, actually it was the laws of the Jim Crow era that did that; no one has yet shown that General Lee descended from his monumental horse in Charlottesville to burn crosses along the Blue Ridge at night. But if culture is politics, and politics is power, then monuments do indeed acquire dangerous capacities of locomotion.

In this way, the removal of offensive speakers and public art is a strategy for eliminating political dissent, which is why the activists so often shade over into furious condemnations of the entirety of American history. On the other hand, the genuinely oppressed—as opposed to the hustlers of faux outrage—have always known freedom of speech to be their best friend.

Witness the account of Frederick Douglass. “Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist,” Douglass said in 1860, adding that “slavery cannot tolerate five years of free speech.” Or George Orwell: “If liberty means anything at all it means the right to tell people what they do not want to hear.” Or John Milton: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” Or even the pre-Gramscian Marxist Rosa Luxemburg: “Freedom is always and exclusively freedom for one who thinks differently . . . because all that is instructive, wholesome and purifying in political freedom depends on this essential characteristic.”

Argue with them, if you like, but do not expect Americans to believe that freedom of speech is some disguised puppetry of the powerful. It is, to the contrary, an indispensable ingredient in the recipe for preventing tyrannies, be they of the left or right, be they in the name of the Fatherland, the Volk, or the workers. To say otherwise is merely to perform what Michael Polanyi called a “moral inversion”—an intellectual juggling act in which we are asked, in Orwellian terms, to regard freedom as slavery, discrimination as nondiscrimination, and truth as power.

The 1960s Free Speech movement was born on the campus of the University of California, Berkeley. (BETTMANN/CORBIS/GETTY IMAGES)

There has never been a freedom, of course, that someone has not proved ingenious enough to abuse. And Carolyn Rouse is certainly correct in one respect: cultures do inhibit speech. She learned this, to her own surprise, in February, when fellow professor Leonard Rosen’s use of the N-word in his Anthropology of Law class as an instruction-example of offensive speech triggered a dramatic student walkout; Rouse’s defense of her colleague caused her to be attacked herself, for failing to understand that “expecting the dissenting students to dispassionately debate amid hate speech is tantamount to silencing their experience.” Some speech is rude and some is foolish, and culture encourages people to censor their rudeness and their foolishness. But what Rouse and the Gramscians ignore is that cultural inhibitions are vague, consensual, and easily liable to transgression and shifting. Culture made the use of the F-bomb on television unthinkable in 1965; 40 years later, HBO would be lost without it. And the reason for this is that the culture shifted, steadily, imperceptibly, like dunes in the desert. When subjected to the contrary, cultural inhibitions can be embarrassed, challenged, and cast aside in the course of a few years. They become lethal only when political power is invoked to terminate the competition for cultural expression and it takes sides. The real crime of white supremacy was not that it put up statues, or even that it made speeches, but that it attacked citizens and passed laws.

Rouse is also correct to say that there are different arenas of speech and that suppression of free speech in some of those arenas is accepted as perfectly natural without any thought of the First Amendment. I do not regard children talking back to parents as necessarily a shining example of free speech, and even Oliver Wendell Holmes, the author of the Abrams decision, recognized the serious public harm that can result from someone “falsely shouting fire in a theatre and causing a panic.” But the line that separates some arenas of speech from others—and that permits suppression—is also a shifting one. Rouse believes that “hate speech” has no place in academic speech, and since academic speech permits the suppression of some speech so that others may thrive, some forms of censorship can be imposed. If academia is indeed a private arena, there is some merit to that argument.

But in practice, the limiting of academic speech has become more and more suspect. For one thing, the exclusion of certain forms of speech from the academy ought to come as the result of debate, but generally not before the debate. We have now arrived at the point where the debate itself is deemed insufferable, in something akin to the spirit of Lewis Carroll’s Red Queen: sentence first, verdict afterward. Moreover, academic speech can no longer truly be called private or even communal. State-authorized and supervised higher education has long been bound from restricting or controlling academic speech. But the wall of separation between public and private higher education has been eroding for the last half-century. Funding from public sources now constitutes the bulk of higher-education resources in the United States, whether in the form of government subventions for research and programs, or in the much vaster influx of government-guaranteed student loans. For all realistic purposes, the distinction between public and private higher education has ceased to exist. Further, the vast numbers of young American adults being drawn in to the college and university system (some 20.4 million, up by 25 percent from 2000 alone)—on the assumption that college degrees are virtually a sine qua non of entrance into profitable commerce or lucrative professions—has evaporated what little is left of the pretense that academe constitutes some monastic realm, beyond the orbit of civil society.

Ironically, some of the vilest examples of bona fide “hate speech” have occurred within the very groves of academe, committed by students who seek to oppose, rather than expand, free-speech rights. On November 12, 2015, 150 Black Lives Matter activists invaded the Baker-Berry Library at Dartmouth, shouting to students in the library, “Fuck you, you filthy white fucks!” “Fuck you and your comfort!” and “Fuck you, you racist shits!” as a way of expressing solidarity with “our brothers and sisters across the country who are staring terrorism and assault directly in the face,” and assaulting one female student. The college’s Office of Communications subsequently released a statement affirming Dartmouth’s loyalty “to the principles of free speech, public protest, and inclusivity.” However, the college also declined to take any action against the invasion because “there were no specific violations of the Standards of Conduct. In essence, no rules for which there are recorded and communicated sanctions were broken.” Perhaps not, but it is difficult to interpret these tirades as anything but hateful.

The Dartmouth affair was swiftly followed by the “Demands of Black Voices” incident at Duke University, where the target shifted from intimidating students to intimidating faculty. Among the “Demands” was the requirement that “Professors will be in danger of losing their jobs, and non-tenure track faculty will lose tenure status if they perpetuate hate speech that threatens the safety of students of color.” This fall, Reed College’s Humanities 110 course began with student demonstrations in the classroom that attacked assistant professor Lucía Martínez Valdivia as a “race traitor,” “anti-black,” and “ableist,” driving Valdivia to admit: “I am scared to teach courses on race, gender or sexuality or even texts that bring these issues up in any way . . . especially since many of these students don’t believe in historicity or objective facts.” I would like to be able to say that college students simply will be college students, and not to worry. But that is no longer the luxury it once was, when colleges really were private institutions, and no longer a luxury at all when we chart the subsequent outbursts of speech suppression at Berkeley, Middlebury, and Evergreen State.

To make this worse, because college has become the narrow strait through which young adults must pass—or think that they must pass—to gain admission to economic opportunity, this suppression of speech is fast becoming the norm throughout civil society. Recently, Mozilla CEO Brendan Eich was forced to resign after donating to a campaign to ban same-sex marriage, and Google engineer James Damore was fired for drafting a memo that questioned his company’s policies regarding gender. As a senior software engineer at a Fortune 100 company wrote, “Like all working Americans, I have bills to pay. So I always have to think about what I can and cannot say to people at work.” What galls this engineer is that this is not the dictate of prudence or civility, but fear, because “my colleagues on the left had complete freedom to loudly discuss their views.” As certain forms of speech become increasingly suppressed—including stances that were, until yesterday, commonplace—our intellectual culture will grow more and more rigid and ruthlessly hostile.

In September 2017, the University of California at Berkeley, home of the 1960s Free Speech Movement, was slated to host a “Free Speech Week,” featuring the alt-right provocateur Milo Yiannopoulos. The event was eventually canceled by its sponsors, who cited “extraordinary pressure and resistance, if not outright hostility,” from the university’s administration. A Berkeley chalk artist perfectly articulated the sentiments of the free-speech opponents when he wrote, without irony, “Free Speech Kills.” I am moved to agree that free speech does indeed kill, but in a very different manner from what its opponents have in mind: it kills stupidity, sloth, corruption, small-mindedness, pride, overconfidence, and self-righteousness. It embarrasses, disrupts, and exposes—and therein lies its real offense to the cadres of academic administrators, who have, in the last half-century, become the single most powerful component of campus cultures.

There are always two great questions to be asked in moments of crisis: Who is to blame and what is to be done? We have now seen how many hands are soiled with blame for the present crisis of free speech. But what is to be done? The great instinct of humanity, even when facing catastrophe, is to do nothing rather than something. But the choir of the deranged is not content with people merely agreeing to do nothing; as we have seen in case after case, the demands to silence free speech always come with the requirement of explicit acquiescence on our part. We will not make ourselves safe by doing as the greengrocer described by Václav Havel in his great 1978 essay “The Power of the Powerless” did: every morning during Soviet rule in Eastern Europe, he hung out a sign, WORKERS OF THE WORLD, UNITE! It was a slogan that the grocer knew was untrue but that he hung out, anyway, “because these things must be done in order to get along in life” and to “guarantee him a relatively tranquil life ‘in harmony with society.≈’” But this, Havel warned, allows him only to “conceal from himself the low foundations of his obedience.” The grocer has chosen to live in self-deception—he is lying to himself, not only about the workers of the world but about his own powerlessness. But he has another choice. Truth, said Havel, is “a bacteriological weapon, so to speak, utilized when conditions are ripe by a single civilian to disarm an entire division.”

Those who resolve to stand for the truth in the face of a culture of censorship should consider three important short-term steps. The first is to make common cause. In his recent book, The Once and Future Liberal, Mark Lilla warns fellow progressives not to be seduced by the air horns and pepper spray of the silencers. “Democratic politics is about persuasion, not self-expression,” he writes, “and the priority of citizenship over group or personal identity.” We are all voices “in a democratic chorus” of citizens, pleads Lilla; people on the Left must stop thinking of themselves as the “vanguard of a movement” whose goal is to replace arguments with taboos, and run “conservative political speakers . . . off campus in a purging ritual.” Last fall, 15 distinguished academics from Yale, Princeton, and Harvard—including Princeton’s Robert George and John Londregan, Harvard’s Adrian Vermeule, and Yale’s David Gelernter—published a letter in defense of this sort of open inquiry, urging incoming students to remember that “the central point of a college education is to seek truth and to learn the skills and acquire the virtues necessary to be a lifelong truth-seeker.” Reverence for free speech is deeply embedded in American life, but speech cannot be protected unless those who acknowledge its value set aside their partisan differences for a moment and trust one another enough to say that the outrages against free speech must end.

The second step is to defund the institutions causing the damage. The institutions of higher education where the most visible suppressions of free speech have taken place are not fully private institutions but, rather, depend on the support of government and private donors. And in today’s financial environment, they are acutely responsive to the slightest puff of philanthropic disapproval. Out of the 40 biggest university endowments, 35 experienced declines in 2016, even at a time when the overall market rose by 13 percent. Middlebury College suffered a 9 percent loss in its endowment value, Dartmouth lost 4.1 percent, and Reed College’s modest endowment lost 5.4 percent. And this only speaks to the distress of the endowed. By the end of 2017, Moody’s Investment Services was predicting that the closure rate of small colleges could easily triple over that of the previous decade. These are not, in other words, institutions that can afford to ignore inquiry into their records of speech suppression. It is time to press on that weakness.

Withholding support for misbehaving schools is not a happy notion for those who are used to donating each year out of love for alma mater. I ask only whether alma mater must weigh more heavily in your minds than freedom of thought and expression. We are not talking here about mere bad frat-boy behavior or professorial eccentricity but about orchestrated campaigns to assault the fundamental liberties of the American republic, tolerated by campus administrators who, in equal measure, fear confrontations with student activists as a threat to their career advancement, and hope that no news of their cravenness leaks out to the press and the alumni. Target your giving as intelligently and purposefully as you target your personal investing. Stand with those who stand for liberty, defund those who will not, and do not pass by on the other side.

The final step to salvage free speech is to cultivate a spirit of resolute opposition to its suppression. The stakes here are not minor ones. Last October, Black Lives Matter activists stormed a stage at William & Mary, where the director of the American Civil Liberties Union was to speak on “Students and the First Amendment,” and shouted her down, crying, “ACLU, you protect Hitler, too” and “the revolution will not uphold the Constitution.” It surely will not. But you must. The anti-free-speech fanatics on campuses and throughout the country have raised their hand against the idea that guarantees us life, liberty, and the pursuit of happiness. So I say: when the black-maskers finally feel emboldened enough to come with baseball bats, whether for Charles Murray or Carolyn Rouse, or for Pentecostal bakers, Mormons, Jews, or Catholics—resist. That is the answer of Madison, of the First Amendment, and the only worthwhile answer of the free spirit.

Top Photo: In February 2017, Berkeley students violently protested against the scheduled speaking appearance of Milo Yiannopoulos. (JOSH EDELSON/AFP/GETTY IMAGES)

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