Saving Free Speech...from Itself

PRAISE FOR

SAVING FREE SPEECH . . . from ITSELF

This is a brave, incisive book that smartly challenges much of what we take for granted about the First Amendment.

—Scott Turow, author of two works of non-fiction about the law and 13 bestselling novels, including Presumed Innocent and The Last Trial

The United States and France are both children of the Enlightenment, born from the Age of Rights. Yet only one, France, believes that the protection of human dignity is an essential freedom. Thane Rosenbaum’s brave and provocative book makes the case that free speech must co-exist with human dignity. It can’t override it. They are united in their shared humanity. Rosenbaum’s voice on this subject is singular, and profound.

—Bernard-Henri Lévy, bestselling author of The Empire and the Five Kings

"Many books, including my own, celebrate the degree to which American First Amendment law provides more protection for more speech than anywhere in the world. SAVING FREE SPEECH … from ITSELF vigorously offers a forceful and provocative contrarian view that takes issue with much established First Amendment law in a robust and arresting manner."

—Floyd Abrams, longtime First Amendment attorney and author of The Soul of the First Amendment

This book will make you think and re-think your positions on free speech—regardless of what those were. It may not change your mind; I still disagree with much of it. But for those of us who value free thought, expression, debate, and dissent, Thane Rosenbaum’s thought-provoking challenge to current First Amendment norms should be especially welcome.

—Nadine Strossen, New York Law School Professor, former American Civil Liberties Union National President, and author of HATE: Why We Should Resist It with Free Speech, Not Censorship

"In this book, Thane Rosenbaum explores whether the United States is best served by unlimited speech—extended even to terrorists of the left and right, as well as other enemies of the open society—or whether certain restrictions on the First Amendment are necessary for a free society to not be subverted from within.

With a strong grasp of constitutional and case law, and a keen interest in genuine freedom of speech, Rosenbaum has written an important book that will likely prove controversial to many. His questions and proposed remedies are ones that all those interested in freedom of expression should take seriously. As a free speech absolutist, this has given me great food for thought.

—Ayaan Hirsi Ali, activist, feminist, author, scholar, former politician, and a Research Fellow with the Hoover Institution at Stanford University

PRAISE FOR OTHER NONFICTION BOOKS BY THANE ROSENBAUM

The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right:

Rosenbaum has accomplished what multitudes of professors long for and so rarely achieve: He has set the terms for public debate.

—The New York Times

[A]s a diagnostician, Rosenbaum is on target . . . he exposes a system that encourages lying, permits truth to be stifled and allows evil men to roam free. . . . Rosenbaum should be read by every law student in America.

—The New York Times Book Review

Rosenbaum’s book ought to be required reading in law schools and continuing legal educations classes, if only because at least a few of his readers will be humanized by the experience.

—The Washington Post Book World

Payback: The Case for Revenge:

One of our most original and compelling thinkers about the law and its limitations, Thane Rosenbaum takes on the theme whose name dare not be spoken in polite circles: revenge. With his singular panache and mastery of sources from Supreme Court cases to popular culture to—gasp—life itself, Rosenbaum takes us on a substantive and stylistic tour de force that leads to the ‘shocking’ conclusion that if the law won’t set things right, which it so often fails to do, then it is okay, indeed moral, for us to do so ourselves.

—Daniel Jonah Goldhagen, author of Hitler’s Willing Executioners: Ordinary Germans and the Holocaust

In this brilliant book, Thane Rosenbaum finds language for what all of us, at one time or another, have felt in our bones that there is a law higher than those made by legislatures or courts; and that, when evil appears among us, an appropriate response is the oldest: revenge. Independent thinking at its best, Rosenbaum’s fiercely argued text dares to speak truth to cowardice and calls us to understand and accommodate the demand that a punishment that fit the crime and that the score be settled in the Chicago Way.

—Rich Cohen, author of The Avengers

"Rosenbaum inhabits both the fact-based legal world and the emotion-based arts realm, able to address everything from the talion to The Princess Bride. His satisfying work gives us permission, contrary to contemporary politeness, to assert ‘honor in payback.’ . . . Rosenbaum renders a consequential, often gruesome topic uplifting, even fun."

—Publisher’s Weekly (starred review)

Rosenbaum spells out the virtually unspeakable in a liberal humanitarian culture: justice is revenge.

—The Times of London

Well-written . . . Rosenbaum convincingly argues for knocking down the false distinction between justice and revenge, for rescuing revenge from its taboo status.

—The Washington Post

ALSO BY THANE ROSENBAUM

NONFICTION

Payback: The Case for Revenge

The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right

NOVELS

How Sweet It Is!

The Stranger Within Sarah Stein

The Golems of Gotham

Second Hand Smoke

Elijah Visible

ANTHOLOGIES

Law Lit: From Atticus Finch to The Practice, A Collection of Great Writing about the Law

Copyright © 2020 by Thane Rosenbaum

All rights reserved.

Published in the United States by Fig Tree Books LLC, Bedford, New York

www.FigTreeBooks.net

Jacket design by Christine Van Bree

Cover art illustration by Sam Fink

Interior design by Pauline Neuwirth, Neuwirth & Associates, Inc.

Library of Congress Cataloging-in-Publication Data Available Upon Request

ISBN 978-1-941493-26-7

Printed in the United States

Distributed by Publishers Group West

First edition

10 9 8 7 6 5 4 3 2 1

FOR SOLÈNNE ROSE

CONTENTS

Foreword by Bret Stephens

Introduction

FREE SPEECH RECONSIDERED

AMERICAN OUTLIERS: SPEECH AS ROBUST RIGHT

SILENCED SPEECH ON THE AMERICAN COLLEGE CAMPUS

THE GENERAL PUBLIC, AND KEEPING YOUR MOUTH SHUT

FREE SPEECH MAY BE LESS AMERICAN THAN FOOTBALL

WHERE IT IS PERMISSIBLE TO SAY: SPEAK NO MORE

WHAT IS THE MARKETPLACE OF IDEAS?

IS EVERYTHING THAT SPILLS FROM THE MOUTH OF A SPEAKER AN IDEA?

AN IDEA BY ANY OTHER NAME

A MARKETPLACE OF IDEAS FOR THE DUMBFOUNDED

WHAT IS SO BAD ABOUT THE REGULATION OF SPEECH?

SPEECH THAT IS NON-SPEECH

DIGNITY BY RIGHT

EUROPE’S FOCUS ON PRIVACY AND DIGNITY WITHOUT SACRIFICING SPEECH

NOT EVERYTHING SHOULD BE OPEN FOR DEBATE

HATE LEADS TO VIOLENCE

WHERE DIGNITY IS ALREADY RECOGNIZED—A RIGHT TO PRIVACY AND DIGNITY

THE JUSTICES FOR WHOM DIGNITY ALWAYS MATTERED

INCIVILITY AND ITS DISCONTENTS

THE SOCIAL CONTRACT AND HUMAN DIGNITY

TORT LAW TO THE RESCUE OF DIGNITY

SOME WORDS, BY THEIR VERY UTTERANCE, LOSE THEIR FREE SPEECH PROTECTIONS

STICKS AND STONES ARE NOT THE ONLY CAUSE OF SERIOUS HARM

ENTER SCIENCE—PUTTING THE MICROSCOPE TO WOUNDING WORDS

THE PHYSICAL AND THE EMOTIONAL: ONE AND THE SAME IN THE HUMAN BRAIN

FIRST AND SECOND AMENDMENT CRAZIES

WHAT BRAIN SCANS SHOW AND WHAT SOME LEGAL DECISIONS SAY

THE MIND’S RECALL OF PAIN

THE CONSEQUENCES OF FREE SPEECH TAKEN SERIOUSLY

THE CHAPLINSKY LIST AND A HARM-BASED ANALYSIS

AND THEN THE SUPREME COURT GOT EVEN MORE FREE SPEECH CRAZY

OTHER CASES WHERE THE SUPREME COURT PRIVILEGED SPEECH OVER PAIN

WHEN NAZIS IN THE UNITED STATES WERE SHOWN THE RESPECT THEY SURELY DID NOT DESERVE

EMOTIONAL DISTRESS CLAIMS CAUSED BY SPEECH THAT PREVAILED

WHEN CARTOONS ARE NOT FUNNY BUT SHOULD STILL CONSTITUTE PERMISSIBLE SPEECH

HATE SPEECH IS A HATE CRIME

THE ALTERNATIVE UNIVERSE OF THE COLLEGE CAMPUS

THE RIGHT TO MAKE A BOMB

TOLERATING SKID MARKS ON THE SLIPPERY SLOPE

CONCLUSION

Acknowledgments

Endnotes

FOREWORD

IT’S FAIR TO say that I am a strong believer in free speech—not in an absolutist sense (life always must make room for exceptions), but pretty close to it. I want there to be no governmental intrusions on speech. How could I be otherwise? I have been an opinion columnist for most of my professional life. I am paid to speak my mind freely. An anticipated outcome of my line of work is that I might render opinions that offend even my most devoted readers. So be it. Living in a liberal democracy with a free-standing press, I, thankfully, possess the freedom to do just that. Hopefully all readers understand that.

For the past eleven years, in fact, I have directed some of my most withering criticism to the occupants of the White House. One a Democrat, Barack Obama, for the entire eight years of his presidency. At the time I was a registered Republican. With the election of Donald Trump, I forfeited my party membership and joined the ranks of the NeverTrumpers. I have played no party favorites when it came to criticizing two very different leaders of the free world—and for different reasons.

Neither of these presidents have accused me of sedition, (blasphemy, maybe), or have tried to silence me by fiat or edict. I have never been arrested for expressing an opinion. Apart from divulging state secrets, in the United States there is no such crime. Presidents Obama and Trump may have privately fumed. In the case of the latter, orange hair might have looked even more inflamed; an angry tweet could easily have been composed late at night, directed at me but mostly for the amusement of Fox & Friends in the morning.

All on account of the First Amendment, and the rampart of powerful news organizations, I have been safe to say whatever I pleased. Yet, I take nothing for granted. I know that in many countries around the world—illiberal, undemocratic, oppressive, authoritarian—I would have long ago been tossed in jail merely for making an unflattering aside.

So why am I writing a Foreword for a book that is asking its readers to take a critical look at freedom of speech?

Well, for one thing, nothing in this book would prevent me or others from criticizing the government. In fact, SAVING FREE SPEECH . . . from ITSELF reaffirms most of what we believe to be true about the First Amendment.

I have known Thane Rosenbaum for many years. He is, if nothing else, an original thinker. And a provocative one. And a principled and compassionate writer and friend. If he has a problem with the First Amendment, perhaps we should give it another look.

In reading this book, I am reminded that I, too, have undergone some revised feelings about free speech. And I may probably rethink my position again. Isn’t that, after all, exactly what the First Amendment protects?

Years ago, I wrote a column criticizing Columbia University for inviting then Iranian president Mahmoud Ahmadinejad to speak on campus. I compared the incident to whether the university would have extended the same invitation to Adolf Hitler in the 1930s. My objections to granting either of these tyrants an Ivy League platform mirrored some of the points Rosenbaum makes in this book: that if the ideas you espouse are limited to the genocide of a people or wiping nations from a map, then you are disqualified from entering the marketplace of ideas, that what you are offering are not ideas at all, but acts of violence, thuggery, indignity, incitement, and intimidation.

Years later I wrote a column criticizing The New Yorker for disinviting Steve Bannon from appearing at its annual festival. Apparently, his inclusion on the roster of speakers was so infuriating to the Twitter universe, and even some staff members of the magazine, that the invitation was rescinded. I wondered what that said about The New Yorker’s commitment not just to freedom of speech, but to journalism itself. Regardless of how one felt about Bannon, was he not a person of public interest given the outsized role he played in the election of Donald Trump? And how did Twitter come to influence the editorial policies of a storied magazine?

I was aware of the contradiction between those two columns. A number of years separated their writing, and when I was asked how I could deny free speech to Ahmadinejad while at the same time insist that it be granted to Bannon, I said, among other things, that my thinking had evolved on the subject, and that I had changed my mind.

More recently, I gave up my Twitter account. I have finally decided that the digital discourse that exists on that platform is clearly not the kind of free speech I want to engage in. I would hesitate denying anyone the right to tweet their hearts out, but as Rosenbaum reminds us, the Founding Fathers held out great hope that the First Amendment would lead to a more informed citizenry, and a better decision-making government, influenced by the best the marketplace of ideas had to offer.

I can’t say whether Twitter is the modern-day answer to the public square, but I do know that speech, in so many forms and forums, has been less collegial, coarser, angrier, and more mob-like. The heckler’s veto is now a full-fledged tsunami of rage. Many are now afraid to speak because the practice of shouting down and drowning out disfavored speakers has replaced common courtesy and true deliberation.

After reading SAVING FREE SPEECH . . . from ITSELF, I am listening carefully and thinking a little more deeply when Rosenbaum argues that human dignity should be given the same weight as free speech, that mutual respect is the cornerstone for how ideas can be embraced, and that the marketplace of ideas should be reserved for ideas worthy of entry. This book sharpens your view of the First Amendment. That alone makes it an outstanding contribution to our thinking about free speech.

—Bret Stephens

INTRODUCTION

The moral legitimacy of free speech no longer makes sense to many people. Its virtues have been thoroughly abused by one set of citizens who have trampled upon the rights of others—fellow citizens who retain rights of their own, rights that should not be subordinated to the First Amendment.

AMERICANS HAVE NEVER wavered from their love affair with free speech, the people’s choice for the best-known and most revered amendment to its Constitution. It is an entitlement that receives unfailing popular support. And its most-favored nations status crosses party lines. Liberals and conservatives, Democrats and Republicans, find very little common ground in today’s political culture. Yet, in the curious alchemy of the First Amendment, they are all unwaveringly united in the principle that Americans possess an absolute right to speak freely without government interference. So profoundly has this right been internalized in the nation’s psyche that waving the American flag is tantamount to celebrating the right to free speech.

And, yet, doubt and confusion abound.

This book hopes to begin an honest conversation about what we really mean by free speech—when we invoke the right and trumpet the liberty, when we demand freedom of speech only for the issues personal to us, and when we seek to deny it for others. Do we really want free speech to be limitless? Why does the United States stand out among other Western nations in defending the rights of bullies and bigots to prey upon marginalized groups with weaponized words? Why do we abhor governmental regulation of speech and yet think nothing of speech that is restricted by society at large? How do we account for so much intellectual hypocrisy when it comes to free speech?

This book seeks to answer these important, albeit controversial, questions.

The right to free speech is so often reflexively stated, but not so well understood. Despite all the liberating comfort it evokes, speech is not without cost. Sometimes, the cost is prohibitively high, and when this occurs, society as a whole suffers the consequences. Sometimes gravely. The truth is, speech should not be entirely free.

I can imagine the horrified reaction to this last statement. How can he say this? Does he not understand what the First Amendment says and what it protects? I do. But freedom does not have but one meaning—one that derives solely for the benefit of speakers. It also includes the targets of speech who have their own rights. This book is a respectful reminder of those rights, which should not be so casually canceled out by the gluttony and indecency of certain speakers.

I am proposing a new level of moral clarity around the principle of free speech.

It is not an easy undertaking, mostly because it requires that we modify our expectations of what the First Amendment actually guarantees. Doing so will lower the societal costs and improve the climate in which speech is freely offered and received.

I believe it to be a valuable and urgent national project.

We have always been heavily invested, patriotically and emotionally, in the right to free expression. But at this moment in our history, we are actually experiencing a crisis of faith in the First Amendment that is just beginning to emerge in some conversations, and there is confusion over the once-thought absolutism of its meaning.

Addressing this crisis of the inconsistent adherence to the First Amendment is long overdue. And the consequences are great, even if largely unacknowledged. The privileging of free speech has come with much pain, the kind we are expected to endure without complaint. It is a mindset that begins young, embodied in a nursery rhyme that serves as propaganda for the First Amendment:

Sticks and stones can break my bones, but words will never hurt me.

It is a lovely rhyme and a wonderful thought, but everyone knows that this homespun wisdom is patently false. Words hurt, they can wound, and they can be every bit as lethal as a physical blow. Threats are made through words, fights are instigated, riots incited—words manipulated in the service of violence. The special harm that words cause can linger and are often much more long-lasting than the effects of physical damage.

We have repeatedly confused and conflated hostile acts with free speech. We have allowed the First Amendment to provide cover for those who do violence and disguise it as political expression. The moral legitimacy of free speech no longer makes sense to many people. Its virtues have been thoroughly abused by one set of citizens who have trampled upon the rights of others—fellow citizens who retain rights of their own, rights that should not be subordinated to the First Amendment.

Freedom of expression should not apply to speech that is intended to cause harm—either by threatening and intimidating certain targeted audiences, or by inciting imminent violence against them, or by provoking them into a fight, or when speech is being deployed in order to deprive vulnerable groups of their dignity, self-respect, and social status. Perpetrators of such uncivil and anti-democratic acts against other citizens may feel that laws preventing them from doing so violate their freedom of speech. But what they understand to be free speech would be wholly foreign to the Founding Fathers of this nation who had something entirely else in mind when they enshrined this new freedom in our consciousness and laws. The free speech that they sanctified had to do with the rights of citizens to criticize their government without punishment or recourse. Since that time, however, we have expanded the universe of what constitutes speech to the point where almost anything qualifies for First Amendment protection—whether it be a sincere oration or an accidental burp. Courts should reject allowing the First Amendment to be used not as a defender of liberty but as a weapon against vulnerable groups. The latest studies in neuroscience demonstrate the lasting effect that harmful speech is having on all segments of the population—some more than others. And it is time to give the constitutionality of hate speech codes another look.

But let me make perfectly clear what this book is not about, what I am not proposing, because when it comes to free speech, words can be deceiving.

This book is not about speech one does not like, or disagrees with, or finds offensive, or feels insulted by. This book is not in favor of restricting the free speech of those who wish to openly criticize the policies of the federal government. This book is not meant to serve as marching orders or an operating manual for any political group on any side of the liberal-conservative-libertarian spectrum.

This is a book about the social costs of speech, freely spoken, that causes actual harm—emotional and physical. Speech should not be regulated merely because it insults or offends. As legal scholar Erwin Chemerinsky has stated, Speech can’t be prevented simply because it’s offensive, even if it’s deeply offensive.¹ But there is a great deal of difference between offense and harm. As long as speech is being offered in a respectful, thoughtful, civilized manner, and its intention is to introduce new ideas or challenge old ones—even if unpopular, even if upsetting—then it belongs in the mythical marketplace of ideas, and I wish such speech good luck in attracting consumers interested in its message.

Colleges and universities have a mandate to serve as catalysts for mind expansion and the search for truth. They should not become incubators of closed campuses specializing in coddled students who do not wish to be challenged or discomforted by disturbing thoughts or insensitive remarks. The whole point of a liberal arts education is the allure of the rigorous argument, the acceptance of contradiction, and the openness to judgments based on the quality and persuasiveness of ideas. The closing of the American mind under the dictatorial edicts of political correctness is fundamentally un-American. But a sensible rethinking of the First Amendment can be accomplished without contributing to this crusade of censorship that has infected American campuses. Here is just one example: An Egyptian Coptic Christian who wrote a book about Islam’s centuries-old war with the West was disinvited from speaking at the US Army War College in 2019 because an outside Muslim group protested that he was a racist and white nationalist.²

This book is also not making a blanket judgment about any one group. On the contrary, this book is dedicated to the idea that all marginalized groups of minorities should be protected from true threats to their safety and citizenship.

This book is categorically neutral between left- and right-wing politics. All political ideas should be welcome in the marketplace of ideas. This book is not choosing sides. At the same time, all groups have the capacity to abuse their freedom of speech—either in the manner in which they speak or in the ferocity with which they censor. Yet groups are not monolithic—there are differences of opinion taking place within them all the time.

In these troubling times of fake news and truth decay, where political debate in the service of representative democracy is most crucial, all speech cannot be (and was not intended to be by the drafters of the Constitution) worthy of First Amendment protection. Ideas are welcome so long as they are actually ideas delivered in good faith to enlighten and persuade, and not to deceive, inflame, incite, and bring about harm.

And because social media and the dark web are both the beneficiaries of free speech and also the chief disseminators of false and harmful speech—not to mention the gatekeepers of terroristic propaganda and home recipes for how to make a bomb—this book supports the sensible regulation of the Internet, as is commonly done in Europe, in the same way that it argues in favor of government involvement in the regulation of harmful speech.

This book is a gut check for America and its love affair with the First Amendment. It is primarily about defining the boundaries and establishing the ground rules for free speech, taking into account the civility, decency, and dignity that gives speech the moral authority to be free.

I know that, for many people, what I am proposing is tantamount to constitutional blasphemy, heretical and dangerous—a throwback to the pre-Enlightenment. Any criticism of the First Amendment is instantly regarded as seditious in our political culture. Sensible reform is reflexively feared. There is a curious and disturbing national groupthink when it comes to the orthodoxy around free speech. More Kool-Aid has been consumed on free speech than on any other public issue. As law professor Frederick Schauer observed, those on the side of free speech often seem to believe, and often correctly, that it has secured the upper hand in public debate. The First Amendment not only attracts attention, but also strikes fear in the hearts of many who do not want to be seen as opposing the freedoms it enshrines.³

I realize that when it comes to books about free speech, very few of them reevaluate the very premises of the First Amendment itself. Nearly all of them have nothing critical to say about the Free Speech Clause and how it is commonly applied. Most books about the First Amendment are really celebrations of free speech. This one, however, is more like an autopsy of an amendment. I am well aware that a discussion of the high costs of free speech will be a hard sell for many in a marketplace of ideas where all participants have bought into a happy monopoly with an efficient market immune from government regulation. If you are among such satisfied consumers of free speech, I respectfully ask you to withhold judgment. Let me try to sell you something else.

Would that not be the perfect demonstration of why we have freedom of speech to begin with?

1.

FREE SPEECH RECONSIDERED

[T]here are also speakers like the ones who gathered in Charlottesville who cynically weaponize the First Amendment in order to provoke a fight, incite lawlessness, and threaten vulnerable minorities.

IT MUST BE a terribly confusing time for free speech enthusiasts—especially in America, where the Bill of Rights remains the enlightened testament to a secular religion unlike any other in the world. Among the precious freedoms Americans cherish, one stands out above the rest. One liberty, embodied in the First Amendment, is first for a reason. It is lodged in the hearts of citizens and engraved as an endowed birthright in their memory. Indeed, for most people, it is the supreme virtue of American society, defining what it means to be a citizen of the United States.

Before they attended to the matter of bearing arms, unreasonable searches and seizures, trial by jury, compensation for property taken by eminent domain, and cruel and unusual punishments, the Framers of the Constitution, our Founding Fathers, were under pressure from some states to create a general right of expression, declaring that Congress shall make no law . . . abridging the freedom of speech.

It is a pretty dramatic opening statement, followed by a catalog of rights and freedoms that would make the Constitution of the United States arguably the most