The Coming Demise of Free Speech in America

The Coming Demise of Free Speech in America

  • At work, sensitivity training muzzles free speech to avoid “harassment” charges or a hostile work environment.
  • In college, trigger warnings that make people feel bad include eliminating Huckleberry Finn and other classics from the curriculum.
  • In a social situation, speak about religion, politics or physical appearance, and you could be a micro-aggressor, a racist or a bully. 

When people discuss the meaning of American citizenship and residence, most will focus on the guaranteed liberties of our Constitution – and the right to speak freely first and foremost. Lately, though, that core value seems both less shared and less valued. That seems most prevalent among those who nominally benefit the most from the First Amendment in particular.

Earlier in the week, two gunmen attempted a mass shooting at an event in Garland, Texas that gathered people to draw cartoons of Islam’s Mohammed. The lead gunman put a message out on social media that the pair would conduct the attack on behalf of ISIS. A security guard shot them before they could do more than wound another guard, but the incident touched off a debate over terrorism and free speech.

Related: University of Michigan Fires a Shot at Free Speech

The event in question, run by sharp critics of Islam, came under attack for its provocative nature. The point was to show solidarity with others, especially cartoonists like those at Charlie Hebdo and in Denmark several years earlier, who had been either threatened with death or outright killed for publishing critical or satirical cartoons about Mohammed and the Islamic faith. As with any other kind of speech, it’s not immune from criticism on its own, but blaming its organizers for the attempted massacre that intended to make them the victims seems more than a little perverse.

One does not have to be a free-speech absolutist to know that the First Amendment protects speech critical of religions, its historical figures, or its current leaders. Yet a Pew poll  taken in the aftermath of the Charlie Hebdo massacre showed only 60 percent of Americans offering support for that position, while 28 percent said that it should explicitly be forbidden. Another poll taken in 2014 by the First Amendment Center showed that only 53 percent of Americans supported the right to speak publicly in ways that might offend other religious groups, and less than half said speech that offends racial sensibilities should be protected.

It’s one thing, though, for the general public to remain uninformed about the First Amendment and its reach, or perhaps more generously, to disagree with its broad freedom. It’s another when journalists start arguing that government curbs on speech should be considered, or already exist. This week, we have seen multiple examples of either benign ignorance or worse from the people we would expect to have the most at stake in supporting free speech.

The nadir of this trend took place on Wednesday, when CNN anchor Chris Cuomo – an attorney, and one-time chief justice correspondent for ABC News – insisted that “hate speech” is not protected by the First Amendment. “Hate speech is excluded from protection,” Cuomo tweeted. “Don’t just say you love the Constitution … read it.”

Related: Charlie Hebdo, Terrorism, and the Cost of Free Speech

Needless to say, a read of the Constitution reveals no such “hate speech” exclusion, nor does case law. When challenged repeatedly, Cuomo kept insisting that the 1942 Supreme Court decision on Chaplinsky created a hate-speech exclusion, but Chaplinsky dealt with a fighting-words issue, which involves face-to-face communication in public and an intent to incite; it never even mentions “hate speech.” Chaplinsky has been repeatedly narrowed over the years, most recently in a 2011 Supreme Court decision on a civil lawsuit against the infamous Westboro Baptist Church.

In an 8-1 decision, the court upheld in Snyder v Phelps the right of WBC to conduct its execrable protests and hate-filled rhetoric at the funerals of soldiers as an exercise of their First Amendment rights. Justice Stephen Breyer, in his concurrence, dispenses with the idea that Chaplinsky or anything else negates the protection the First Amendment lends to speech – even to the notorious WBC speech about gays and lesbians. Nearly two decades prior to that, the Supreme Court threw out a Minnesota law, holding in R.A.V. v St. Paul that the state could not prosecute over the placement of symbols merely on the basis that they could reasonably “arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”

None of these cases is particularly esoteric, especially for those like Cuomo who are both lawyers and journalists. The ignorant arguments that arose in the media this week is problematic enough and might help explain why Americans are so uninformed about free speech in the US. The problem goes deeper than that, however. Media figures like Cuomo seem to be actively pushing for government controls on speech based on subjective notions of “hate.”

McClatchy featured a story in response to the Garland shooting by Lindsay Wise and Jonathan Landay that openly asked whether the government should put limits on speech. Wise and Landay wrote, while getting the legal concepts of “fighting words” completely wrong, that public safety may have to trump the First Amendment and require regulation of “provocative” speech.

Related: As Americans Muzzle Free Speech, Terrorists Rejoice

Let’s leave aside the fact that this policy would incentivize the use of violence to prompt government intervention to silence critics – and we’d have even more violence as a result. The more fundamental question and danger is this: Who would get to decide what constitutes “provocative” speech that cannot be exercised?  Who decides which opinions are “hate” and cannot bear the light of day?

The answer appears to be the cultural elite who keep getting free speech wrong – and not just in the media. We have seen political correctness expand into stultifying speech codes on college campuses, pushed by progressive groups and enabled by administrators that have made a mockery out of higher education. That cone of silence has begun to extend into politics in general, ironically as more and more activists demand “conversations” on controversial topics but then demand that the opposing side be silenced or forced into byzantine processes to avoid “triggers.”

All of this amounts to an attempt to control the political sphere by either silencing dissent or demonizing it as “bullying,” “bigoted,” and worse. The same applies in other First Amendment freedoms as well, especially the freedom of religious expression. The same pattern holds when people wish to live their faith in the entirety of their lives. Whether it comes from the government in contraception mandates or forced participation in same-sex marriage events, the media and political elites have decided that the liberty guaranteed in plain English in the Constitution no longer applies – as long as they can redefine the language to suit their purposes. 

Related: U.S. Justices Support Arizona Church in Free Speech Case

As Damon Linker (a supporter of same-sex marriage) wrote earlier this month, the religious have become the new secular heretics to be shunned and destroyed. Those demanding not tolerance but surrender and forced participation may think they are the Enlightenment, but in reality, they are becoming cut-rate Robespierres. They act “more than a little like bullies distressingly eager to treat millions of their fellow citizens like heretics — and to use government power to force them to conform, at least in public, to the dogmas of a contrary, and in some ways incompatible, faith.”

Given the broad and consistent response to the Garland event, and even to an extent the aftermath of the Charlie Hebdo massacre, it’s impossible to believe that it’s simply benign ignorance of the breadth and necessity of First Amendment protections. The most pernicious problem isn’t that the elites in the media and academia don’t bother to inform themselves on issues of free speech and religious liberty, or even that they’re misinforming us on them. It’s that they’re not interested in preserving the values of individual liberty, and want to control the culture rather than inform and educate it.

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