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Giving the Devil His Due: Excerpt

Why liberals must own the 1st amendment like conservatives own the 2nd

In 2015 I was tasked with giving a speech at the California State University, Fullerton under the title “Is Freedom of Speech Harmful for College Students?” Since I matriculated as an undergraduate in the early 1970s on the wave crest of the free speech movement of the late 1960s, I was taken aback that anyone would doubt this central tenet of liberty. My speech was three words long: “No. Thank you.”

Of course, I explained why freedom of speech is sacrosanct for a civil society (not to mention a college campus), but it was what triggered the invitation that was revealing. The campus, it seems, was roiling over a controversy captured in a headline in the Orange County Register: “Cal State Fullerton Sorority Sanctioned for ‘Taco Tuesday’ Party.” The sorority’s sin was “cultural appropriation,” or arrogating someone else’s culture as your own, for which members of the originating group are allegedly offended. Never mind that there’s no evidence that Hispanics feel appropriated by us gringos eating Mexican food (in California no less), the very idea is absurd inasmuch as all cultures are an amalgam of appropriation.

Signs of trouble in the academy — now spilling over into society at large — were evident starting around 2013 with the deplatforming of controversial speakers, the call for trigger warnings about sensitive subjects in books, films, and lectures, the creation of safe spaces for students to retreat to when encountering ideas they find disagreeable, and the dispersal of lists of microaggressions, or words, phrases, and statements that might offend someone. The paroxysms of student outrage that have brought college administrators to their knees are by now well known, leaving onlookers to wonder, what went wrong?

“If liberty means anything at all, it means the right to tell people things they do not want to hear.” —George Orwell

First, paradoxically, because there has been so much moral progress over the past two centuries — the abolition of slavery and torture, the decline of war, crime, and violence, the franchise for all adult citizens, children’s rights, women’s rights, gay rights, animal rights, and even the rights of future generations to inhabit a livable planet. In other words, most of the big moral movements have been fought and won, leaving today’s students with comparatively smaller causes to promote and evils to protest, but with moral emotions just as powerful as those of previous generations, so their outrage feels disproportionate.

Second, the righteous liberal focus on historically victimized groups has morphed into a culture of victimhood, in which one gains status by finding ways to be a victim, even if it is in most cases not comparable to what oppressed peoples of the past experienced.

Third, with ever-elevating ethical standards there has been a puritanical purging of anyone who falls short of moral perfection, leading to preemptive denunciations of others before one is so denounced.

Fourth, virtue signaling has emerged on social media, in which members of a movement compete to signal who is the most righteous by recounting all the moral acts they performed and identifying all the immoral acts others have committed. This leads to an arms-race to signal moral outrage over increasingly diminishing transgressions, such as unapproved Halloween costumes at Yale University, which led to a student paroxysm that nearly brought the campus to a standstill.

Finally, and fundamentally, the lack of viewpoint diversity has crowded out the voices of those who would have spoken up about these problems. In the drive to further bend the arc of the moral universe toward justice by demanding diversity of race and gender in all areas of society, otherwise well-meaning liberals forgot about the diversity of views that is the central tenet of free speech, well captured by George Orwell: “If liberty means anything at all, it means the right to tell people things they do not want to hear.”

This was the conclusion of the Supreme Court Justice William O. Douglas in the 1949 case Terminiello v. Chicago, in which a Catholic priest named Arthur Terminiello was convicted of “breach of the peace” after he gave an inflammatory speech to over 800 people in a packed Chicago auditorium with a thousand protesters outside. Such speech, the law read, “may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.” Did it? No, concluded Justice Douglas, writing for the majority opinion that overturned Terminiello’s conviction: “[The] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment.” 

“He who knows only his own side of the case knows little of that.” —John Stuart Mill

Let’s remind ourselves why freedom of speech and thought must be defended as foundational, and why the censoring of it should be resisted:

  1. Who decides which speech and thought is acceptable and which is unacceptable? The majority? A thought committee? Historically, the control of speech is how autocracies rule.
  2. What criteria are used to censor certain speech? Anything that the majority determines is unacceptable? This is another form of tyranny — a tyranny of the majority.
  3. It is not just the right of the speaker to speak, but for listeners to listen.
  4. We might be completely right but learn something new in hearing what someone else thinks.
  5. We might be partially right, and by listening to other viewpoints we might stand corrected.
  6. We might be completely wrong, so hearing criticism or counterpoint gives us the opportunity to change our minds.
  7. Whether right or wrong, by listening to the opinions of others we have the opportunity to develop stronger arguments and build better facts for our positions. As John Stuart Mill wrote in his 1859 classic On Liberty: “He who knows only his own side of the case knows little of that.”
  8. Arguments made in favor of censorship are automatically gainsaid the moment the speaker speaks — otherwise we would be unaware of their arguments.
  9. We are all wrong some of the time (and many of us most of the time) so the only way to know if you’ve gone off the rails is to tell others about your beliefs so that they may be tested in the marketplace of ideas.
  10. My freedom to speak and dissent is inextricably tied to your freedom to speak and dissent. If I censor you, why shouldn’t you censor me? If you silence me, why shouldn’t I silence you? Once customs and laws are in place to silence someone on one topic, what’s to stop people from silencing anyone on any topic that deviates from the accepted canon?

What about hate speech? Surely there are reasonable arguments to be made for censoring words that offend others, or are generally agreed upon to be deeply offensive, the N-word being the most obvious? No. Hate speech is best countered with free speech, better speech, or no speech at all (just ignore them). Censorship turns hate speech bigots into free speech martyrs, recognition that they most assuredly do not deserve.

Plus, one person’s hate speech is another person’s free speech. During the 1830s many U.S. southern states enacted laws to “protect” their citizens from hearing abolitionist speech, arguing that it could lead to slave rebellions and violence. In the words of South Carolina Senator John C. Calhoun, abolitionists “libeled the South and inflicted emotional injury.” In the 20th century, civil rights activists opposed viewpoint-based censorship, knowing that their call for black Americans to be granted the same rights as white Americans would be considered “hate speech” by a great many southern citizens.

What about speech that incites violence? In the 1919 case of Schenck v. United States the Supreme Court Justice Oliver Wendell Holmes’ precedent-setting judgment was that any speech that presents “a clear and present danger” must be censored, with “falsely shouting fire in a theatre and causing a panic” being the type specimen. The falsely shouted utterances were, in fact, 15,000 fliers distributed to draft-age men during the First World War that encouraged them to resist conscription as a form of slavery. According to the distributors of the fliers — Charles Schenck and Elizabeth Baer — military conscription constituted involuntary servitude, which is strictly prohibited by the Thirteenth Amendment of the U.S. Constitution. “When you conscript a man and compel him to go abroad to fight against his will, you violate the most sacred right of personal liberty,” they wrote in their broadside. For this treasonous act of voicing their opposition to the draft (and U.S. involvement in a largely European war), Schenck and Baer were convicted of violating Section 3 of the Espionage Act of 1917, passed shortly after U.S. entry into the Great War, designed to prohibit interference with government recruitment into the armed services, and to prevent insubordination in the military and/or support for enemies of the United States during wartime.

Tellingly, as mission creep set in and “clear and present danger” expanded to include speech unrelated to military operations or combatting foreign enemies, Holmes dissented in other cases, reverting to a position of absolute protection for nearly all speech short of that intended to cause criminal harm, concluding that the “marketplace of ideas” of open discussion, debate, and disputation was the best test of their verisimilitude.

Let this be a lesson for today. Liberals need to embrace this history and carry it forward as a bulwark against the illiberalism of the Far Left and the censoriousness of the Far Right, and take a lesson from conservatives’ fetishization of the Second Amendment’s gun rights. Liberals need to own the First Amendment like conservatives own the Second.

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