My favorite thing about this country is its exceptional First Amendment. No other country affords the degree of protection that we do to political speech, artistic speech, and even offensive, hateful speech. The current Supreme Court is doing its job in protecting our counter-majoritarian First Amendment liberties as against government intervention. Outside of the courts, however, the term “free speech” is losing its cultural power. Disingenuous invocations of free speech, by members of both the political right and the political left, are turning an apolitical idea into a partisan buzzword.
An opinion piece in the New York Times called “Save Free Speech from Trolls” chastises Twitter’s “free speech brigade.” According to author Lindy West, this brigade is composed of the white men who harass others for engaging in cultural criticism. Women who criticize rape jokes, for example, or speak out against women’s experiences in video gaming communities are subject to threats and stalking, for being “anti-free speech.” West rightly points out that some invoking free speech are doing so in disingenuous ways. Criticizing others’ speech is not censorship. The Internet trolls policing political correctness actually seek to silence others and care only when those who espouse their viewpoints are targeted.
This opinion piece is not wrong, but it is limited. As the author notes, First Amendment rights exist only against the government. So, technically, even online harassers disingenuously claiming “free speech” are not actually censoring women and minorities who speak out against bigotry (or, in some people’s view, propagate political correctness). Of course, threatening and stalking people for cultural commentary is detrimental enough to free expression that these Internet warriors cannot claim to be free speech advocates.
And yet, the opinion piece misses the larger picture. A nontrivial segment of the political left has also mobilized to bully, threaten, and harass (and sometimes assault) others whose ideas they dislike, in the name of free speech. The exact opposite, and similarly polarized, counterpoint to the white, male Internet warriors are those who claim that the government needs to silence others’ speech in order to allow the speech of vulnerable populations to thrive. There are stalkers and harassers on the left side of the political spectrum, who want to suppress voices they find culturally dangerous. Racists on the Internet are not free speech warriors. But neither are those who assault speakers or harass journalists in order to preserve spaces for the voices of select members of a community.
Criticism isn’t censorship. But neither is criticism of criticism. As Lindy West notes, a culture where criticism is considered an unacceptable limit on free speech cannot progress. But neither can a culture where powerful people (politicians, academics, and heavily mobilized groups on social media) bully others into stifling views (reasonable or unreasonable) that some consider unacceptably bigoted. An equilibrium needs to be reached where we can criticize those whose speech harms culture, and then we can criticize that criticism as being unduly intolerant of opposing ideas. This equilibrium is hard to achieve in an era where everyone seems to know best what ideas are beneficial and detrimental to culture.
I have experienced my own Internet trolls – from both the right and the left. In response to a blog I wrote about Harvard’s revoking the acceptances of admitted students after they shared offensive memes in a private chat group, someone told me I was everything that was wrong with the world. This seemed extreme. Ironically, my thought in response – which I did not communicate – is that her certainty about how the world should work, and her hostility to those who disagree, is actually everything that is currently wrong with the world.
The larger cultural problem we have with free speech is one to which the author of the Times opinion piece contributes. The problem is demonization of those who disagree. The problem is looking at issues from such a partisan lens that one notices only the right’s disingenuous invocation of free speech and not the left’s. The problem is feeling certain enough about one’s own values to want to stamp out the speech of others- not just through actual government censorship, but through outraged or violent outbursts designed to shame and frighten instead of rationally convince. Meaningful cultural change cannot come from such bullying; instead, the far right and the far left have polarized into exactly what the other side feared.
My other favorite thing about this country, besides our First Amendment protections, is our diversity and pluralism. These values exist in harmony with free speech – which favors diversity of viewpoints by forbidding the government from interfering in the marketplace of ideas in the name of the public good. Diversity of views does not mean that we, private citizens, should refrain from criticizing others or allow “alternative facts” to thrive. We do not always need to remain personally neutral about what speech is good or bad. But we should appreciate the humility and epistemological doubt behind free speech values – no individual or government entity has a monopoly on truth.
Happy Fourth of July.
8 thoughts on “Disingenuous Invocations of “Free Speech””
While it is true that it is 42 U.S.C. 1981a that protects against private civil rights violations (and not the first amendment), isn’t the reason free-speech is included among the civil rights protected under 42 U.S.C. 1981a because free-speech is mentioned in the bill of rights (or the 14th amendment)?
That is, even though the first amendment doesn’t directly prevent private civil rights violations, the first amendment is the reason that free-speech is one of the civil rights specifically protected by 42 U.S.C. 1981a. Just like how it’s the 14th amendment that prevents states and cities from violating human rights, but the reason that free-speech is protected under the 14th amendment is because it is listed in the first amendment?
So, if it’s OK to say that the first amendment protects free speech against states, rather than always saying that it is first amendment through the 14th amendment that protects free speech states; then is it OK to say that its the first amendment that protects free speech against private parties, rather than the first amendment through 42 U.S.C. 1981a that protects free speech against private parties?
Yes, it’s shorthand, but if it’s shorthand everyone understands, is it really that deceptive?
That statute does not apply free speech rights generally to prevent private parties from restricting others’ speech. Private parties are still free to restrict each other’s speech, so using that statute does convert the 1st A into a non-state actor provision. The only state I know that applies some free speech requirements to private institutions is Massachusetts, through its state laws, but those laws may in fact violate the 1st A.
I actually have an upcoming article about all of this! https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2925255
42 U.S.C. Section 1983:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”
Yes, that statute is generally used to sue state actors who deprive people of their constitutional rights. I promise you won’t find a case applying it to prevent a private party from censoring another. Think about how employers can restrict employees’ speech rights or you can do so in your own home. It creates a civil remedy for deprivations of constitutional rights by the gvt.
The state actors are sued in their individual capacities but only if they act under color of state law- per the text.
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