“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”
–Justice Louis D. Brandeis, concurring in Whitney v. California (1927)
The Constitution’s First Amendment embodies a bedrock principle of a democracy, free speech. The framers of the document rightly thought that those seeking public office had a right and a duty to lay out their policy views so that citizens could then decide whether they wanted to vote for them.
But, like all rights, it is not absolute. The problem is where and how to draw the line between the people’s right to express their opinion and to stop them from doing so. Two recent examples come to mind.
A private school head in Concord canceled a lecture by Nikole Hannah-Jones, the Pulitzer prizewinning journalist who sparked controversy with her New York Times “1619 Project.” She argued that the founding of America did not occur in 1776, when the Americans declared their independence from Britain, but rather in 1619, when the first slaves were sold in Virginia. The school board is investigating, and the head of school is now on a leave of absence.
The second incident occurred at MIT when a prominent University of Chicago geophysics scientist’s lecture was canceled because of his political views. His topic in what was to be the annual prestigious Carlton Lecture was life on other planets, not politics. But Dorian Abbot had co-written an opinion essay last August in Newsweek magazine arguing against the diversity, equity, and inclusion movement in universities because it treats people as members of groups, not as individuals.
The faculty is investigating the cancellation while, according to the Boston Globe, students and faculty have received threats and hate mail from outside MIT by right-wing extremists.
Unfortunately, these are not isolated incidents in schools or on college campuses. Perhaps one of the more controversial figures in the U.S. today is Milo Yiannopoulis, the former Breitbart employee known to express outrageous views ridiculing feminism, social justice, and political correctness. He has been accused of holding white supremacist and anti-Semitic views. After College Republicans at the University of California, Berkeley, invited him to speak at a “Freedom Speech Week” on campus in 2017, protestors shouted so loudly that no one heard what he said.
In early November, Yiannopoulis was set to speak at Penn State University, despite an outcry by student protestors.
Was Brandeis correct when almost 100 years ago he advocated more, not less, speech? Political views are one thing, but what about hate speech? Are the American people able to deal with verbal attacks on religion, race, ethnicity, and other categories without shutting them off? Two years after Brandeis wrote those words, his colleague Justice Oliver Wendell Holmes went a step further and wrote, “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us, but freedom for the thought that we hate.”
But where are the limits to more speech? Surely the spectacle of throngs of protestors shouting down a speaker is unacceptable, as are threats of violence and scare tactics. We should not tolerate verbal attacks on people because of their religion, race, gender, or ethnicity. Bullying and online menacing are not worthy of First Amendment protection, just as harassment and stalking are not. Today, the pervasiveness of social media has opened the door to lies, misinformation, and propaganda. It is a wild west with few controls, and even fewer ideas about what to do about it.
We need more speech in today’s world, because, as Holmes put it in 1919, when the people “have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
The goal, our purposive use of free expression, is the power to persuade, and this is the essence of the First Amendment’s meaning.
Jack Fruchtman, who lives in Aquinnah, is updating his book, “American Constitutional History.”