More, not less, speech

3

“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.”

3 COMMENTS

  1. Who decides which people need educating? Don’t make this a “both sides” situation unless you’re willing to make a serious effort yourself.

  2. Your cri de coeur is profoundly misplaced with regards to Milo Yiannopoulis. Those “throngs of protesters” at Berkeley were exercising their right to free speech as surely as Milo was trying to use his. Our body politic does not owe you respectful silence. A mob of angry students shouting down a muckraking segregationist is a more authentic expression of free speech than whatever venom he had planned on spewing.

    The past decade has seen the rise of Trump and his mendacious imitators, the reinvigoration of Lee Atwater style white supremacy, 4chan posters perpetrating mass shootings at mosques, gay nightclubs, walmarts, and summer camps. Throughout this, we have had pollyannaish New York Times interviews with “nice-seeming nazis” and speculation about “economic anxiety” as a root cause. De-platforming Yiannopoulis ruined his career. He went from having an army of credulous followers, lucrative podcast, and interviews on major news networks, to being a nobody. Instantly.

    And it was not government suppression that did this. No first amendment right was violated. It was the big tech companies deciding enough is enough and pulling the plug. They didn’t allow “both sides” to air their views. They didn’t pretend that the “free market of ideas” would eventually sort things out after however many shootings. They pulled the plug. And we are all better off for it. Mass speech in the digital age requires responsible custodianship. The practical result of its lack is more nazis and less vaccination.

  3. There are a lot of good statements about freedom of speech in this editorial but unfortunately most of this article is based on a complete misunderstanding of Whitney v. California (1927) and Justice Brandies’ opinion.

    The most import difference between the speech in Whitney and the speech cited in the examples in this article is, in Whitney, the speech that is suppressed is suppressed by the state — not by a private entity.

    When Justice Brandeis writes “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 Brandeis is denying the State of California the right to criminalize political speech, i.e., “enforced silence.” He is not saying that Milo Yiannopoulis (or anyone) has an unfettered right to speech in private arenas. On the contrary, Justice Brandeis is saying that the state cannot restrict, suppress or criminalize political speech.

    Earlier in his opinion Justice Brandeis writes: “Those who won our independence believed that the final end of the state was to make [citizens] free to develop their faculties and that in its government the deliberative forces should prevail over the arbitrary.” “Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form.”

    Further, in footnote #3 Justice Brandeis quotes Thomas Jefferson regarding the state suppressing political speech: “We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors … these are safer corrections than the conscience of the judge.”

    So what does that mean and what doesn’t it mean?

    It means we all have a right to set up a soap box in a public square and speak our political opinions. The state cannot interfere with our right to political speech, even if our speech is repugnant. But it doesn’t mean that other citizens can’t be in the same public square shouting down the repugnant speech.

    And what it certainly doesn’t mean is that private entities must set up a soap box for all who want to speak in their auditoriums. Private entities are not the state; they can suppress speech. Milo will never be invited to my house for dinner — I will happily (and legally) suppress his speech!

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