Free Speech: Here Today, Gone Tomorrow?

April 25th, 2017

Floyd Abrams recently opined that “one of the most remarkable developments of the last 20 years” has been the fact that both liberals and conservative Justices now view “the First Amendment in an expansive and generally highly protective way.” These precedents, however, are not etched in stone. In an insightful, yet harrowing post, Mike Dorf describes how easy it would be for a differently-constituted Supreme Court to bring the United States in line with foreign nations concerning prohibitions of “hate speech.” Dorf writes:

A movement to treat hate speech as beyond the pale–perhaps as part of a backlash against Trumpism–could, given enough time, result in political changes and transformative judicial appointments. A SCOTUS majority might then announce that when it comes to hate speech, the U.S. is not an exception to the rest of the democratic world after all. At that point, Howard Dean would seem less like a constitutional ignoramus and more like a prophet.

Dorf, who stresses that he does not “prefer the European/Canadian approach to hate speech to the American approach,” sees where the trend line is going.

Don’t believe it? Look no further than the New York Times editorial page, where Professor Ulrich Baer of NYU defends the “snowflakes” on free speech:

As a scholar of literature, history and politics, I am especially attuned to the next generation’s demands to revise existing definitions of free speech to accommodate previously delegitimized experiences. Freedom of expression is not an unchanging absolute. When its proponents forget that it requires the vigilant and continuing examination of its parameters, and instead invoke a pure model of free speech that has never existed, the dangers to our democracy are clear and present.

For a preview of what our polity would look like with people like Baer in charge as speech police, consider the recent  witch hunt in South Africa. A pseudonymic blogger for the Huffington Post wrote an idiotic entry, arguing that white people should lose the franchise. It was meant as satire, or something like that. This is the sort of inane content that no one would actually bother reading–until several readers filed complaints with the Press Ombudsman of South Africa. This ominous-sounding office found that HuffPo was guilty of a “tier-3 breach (serious misconduct) of the South African Code of Ethics and Conduct.” The sanction?

The Huffington Post is directed to apologise unreservedly to the general public for publishing text that:

  • was discriminatory and denigratory;
  • amounted to hate speech;
  • was malicious;
  • was against the public interest;
  • contained factual inaccuracies;
  • impaired the dignity and reputation of many people; and
  • blaming its system, instead of probing deeper into the racist and sexist nature of the blog.

(Remember: all those Justice Kennedy decisions promoting “dignity” go far beyond LGBT rights–this is the trump card by which European courts subjugate free speech.).

Consider the Ombudsman’s “Free Speech” analysis:

The Bill of Rights, which is quoted in the Preamble to the SA Code of Ethics and Conduct, makes provision for freedom of expression. That is a given.

The same Bill of Rights, though, also outlines borders to this freedom. As always, freedom cannot be unbridled and without limits, and should be exercised responsibly.

Indeed, that is what the Code of Ethics and Conduct is all about – to ensure that the freedom that this country has finally obtained, is protected by not abusing it. Each and every section of the Code has this aim as its main purpose.

This is also the main reason for the existence of the Press Council, and for the operations of its office.

My task, therefore, is to ascertain whether the content of the blog crossed the borders (set by the media industry itself), or not. On the other hand, while this office should ensure that the media stay within these borders, it should also be careful not to unnecessarily curb freedom of expression.

Free speech is “protected by not abusing it.” This doublespeak passes for blackletter law in foreign nations. How easy would it be to import this into our First Amendment doctrine, as Dorf suggests.

The Ombudsman further found that Pillay, the HuffPo editor in chief, was responsible for ensuring that content published on the blog “does not breach the code.”

He said her defences of the blog left the reader with the impression that she supports the gist of Garland’s argument. She further reinforced this idea by justifying the blog’s removal from the site on the basis of the writer’s identity, not the blog’s content.

“Let me be painfully clear about this: If it is Pillay’s belief that the gist of Garland’s article is correct, she is free to believe that and to pursue her view, but then she must know that this is not possible within the confines of the Code,” Retief says.

She is free to “believe” and “pursue” her views, but if she permits anyone to write about it, she will be punished.

As an aside, this sounds an awful lot like Justice Kennedy’s empty gesture towards religious liberty in Obergefell–you can “advotacate” and “teach” about your beliefs, until the Court tells you doing so is illegal:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advo- cate with utmost, sincere conviction that, by divine pre- cepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

Chief Justice Roberts’s dissent went unanswered:

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Make no mistake: there are elements of our society that would cheerfully throw certain bloggers and pundits in jail for their offensive and harmful words. A small segment, thankfully, but it is ascendant. (See my article Collective Liberty for a discussion of the demise of support for free speech among progressives).

How do we prevent this? I’ll return to Dorf’s post. He explained:

American lawyers who went to law school in the last sixty years–which is to say just about all current American lawyers–were educated to believe that protection for the thought we hate is the central principle of the First Amendment and that hate speech regulation is inimical to such protection. One might even say we were indoctrinated in this belief. It is therefore understandable that we find it natural. Thus, ironically, an indoctrinated belief about free speech leads American lawyers to dismiss without even considering the idea that regulation of hate speech could be consistent with liberal democracy. Yet a culture of free speech is supposed to make us more, not less, open to ideas that we find unfamiliar.

I take exception with the notion that learning about free speech amounts to “indoctrination,” but his general point is sound. So long as the legal profession, and law students in particular, are taught the importance of protecting speech they hate, including hate speech, then the current status of the First Amendment is more-or-less secure. But if they are not taught this, and American law students begin to clamor for the stalinist policies of South Africa, our current First Amendment is in trouble.

This is why, in part, I speak to as many student groups as possible about the importance of free speech. Sure, I love teaching students about the Constitution, but there is a more important, selfish reason: I dread the day that I wind up guilty of a hate crime prosecution, or worse, forced to attend some sort of reeducation camp. (You may know it as compelled diversity training). I hope in 50 years I look back on this post and laugh about how foolish I was, and reaffirm that the free speech climate in America remains as strong as ever.  Will this happen? Anyone want to bet against it?