If you read certain columnists or follow a particular set of writers and pundits on social media—including me—you know that the First Amendment is always in crisis. Nearly every incursion, whether it’s the shouting down of a conservative speaker on a college campus or an alleged incident of hate speech, gets shoved into a civil-liberties outrage machine, generating new cycles of vitriol and pushback. And yet the resulting debates, on op-ed pages and elsewhere, can feel strangely abstract and academic. The pundits and scholars who participate in them sometimes seem like taxonomists who show more concern for the precision of their determinations than for real-world outcomes for speech and expression.
Police in riot gear may swarm onto the grounds of a college campus in a show of force and intimidation, and pundits will conclude that the relevant concern is whether students have the right to forcefully occupy a building. The Mayor of New York may intimate that it is his job, as an elected official, to shield the minds of college students from the influence of “outside agitators” who have infiltrated campuses, and some of these pundits may seem unalarmed. After police officers broke up a student protest at Columbia University, the deputy commissioner of the New York Police Department went on television and held up a book titled “Terrorism: A Very Short Introduction,” citing it as evidence that someone was “radicalizing” students. The book is not an instruction manual—it is a historical and philosophical primer sold in many university bookstores. But both the top elected official in New York City and one of its top cops appear to believe that they have the authority to tell students whom they should associate with and what books they should and should not read.
I may now be guilty of another flaw in contemporary free-speech debates, which is how frequently the debaters criticize others for not caring about the right things. This reflex, with its attendant charges of hypocrisy, makes up the vast majority of modern free-speech discourse. If you are outraged by police repression of pro-Palestine encampments, you will be asked what you would say if a pro-Trump rally had been shuttled off campus. If you stand up for a conservative speaker who has been deplatformed by chanting students, you will be asked to offer the same defense for someone who’s lost a job on account of a social-media post that was sympathetic to the people in Gaza. The spirit behind such tests isn’t wrong. The defense of free speech should be viewpoint-neutral, and many people—including quite a few elected officials—are hypocritical about such things. (Consider Texas’s governor, Greg Abbott, who signed a campus free-speech law in 2019, in response to the deplatforming of a few conservative speakers, and then turned around and brought in what certainly appeared to be excessive force against campus protesters in late April of this year.) But the discussion around free speech has become mired in these hypotheticals. What should be a lively and malleable conversation about the law and what it protects has instead devolved into a series of online show trials, polarized along familiar political lines.
I have taken part in these debates for years, mostly to urge the American political left to revive the radical free-speech movements of the past. These efforts, for the most part, have been laughably unsuccessful. I’m open to the possibility that this is a personal failing, but I am convinced that some of the problem lies with the broader tenor of the conversation, which has become histrionic, pedantic, ad hominem, and overly concerned with what happens on college campuses. If you want to engage in a back-and-forth about free speech these days, you should expect to be pathologized, quizzed on legal trivia, and labelled a hypocrite. Who, in their right mind, would want any of that?
The First Amendment has its stewards, and, for better or worse, the conversation around free speech tends to revolve around what they say. Among the most prominent are the American Civil Liberties Union and the Foundation for Individual Rights and Expression. Both organizations are devoted to the freedom of speech, and both maintain that they are nonpartisan. But the A.C.L.U. has long been associated with progressive politics, and FIRE, which has received much of its funding from right-leaning foundations, is sometimes pigeonholed as conservative, though it strives to remain neutral. Both groups not only provide legal support for people whose First Amendment rights have been violated but also engage, to varying degrees, in free-speech advocacy, seeking to expand the parameters of acceptable speech.
In the past two weeks, as protests against the war in Gaza have spread on college campuses, FIRE has criticized an antisemitism bill that was passed by the House of Representatives which would broaden the definition of antisemitism used by the Department of Education, decried the arrest of a photojournalist at a protest at the University of Texas at Austin, and condemned a violent pro-Israel counter-protest at U.C.L.A. But the group has also pointed out that universities mostly have a right to ban encampments and, in reference to events at Columbia, wrote, “Occupying a campus building, blocking students from attending classes, and vandalizing property is not protected by the First Amendment, full stop. It’s illiberal. It’s illegal. And it should be punished.” Taken together, these statements can feel unsatisfying and question-begging, if not outright contradictory. Does anyone seriously believe that the First Amendment protects the right to smash windows and occupy buildings? If not, why does FIRE regard it as important to point this out—and at a moment when student journalists are being forcefully removed from their campus by police officers? Does FIRE want to advocate for free speech, or play referee in a dispute about what constitutes a real First Amendment violation and what does not?
I asked Will Creeley, the legal director of FIRE, how he would answer that question. “To my mind,” he wrote, in a thoughtful and lengthy e-mail, “the answer—has to be—that we’re doing both.” He noted that the organization was currently fighting a host of legal battles that would expand the First Amendment in areas where protections were “uncertain, ill-defined, under challenge, or insufficient.” He added that the organization also makes “cultural, non-legal arguments that aim to cultivate a broader societal understanding of, and support for, free speech principles.” These include the idea that, if someone says something you don’t like, you should engage with them using more speech rather than trying to blacklist them or shout them down.
This dual burden of championing free speech and adjudicating First Amendment cases isn’t easy to navigate, in part because many people will, perhaps rightfully, detect political motivations behind the cultural, nonlegal arguments that Creeley mentioned. For the past decade or so, the most well-publicized incidents of shouting down speakers have taken place on college campuses and have involved the deplatforming of conservatives. Creeley, for his part, is aware that the public perception of his organization will be shaped by the cases it chooses to take on. “My hope for FIRE is that sooner or later, we have a case for everyone,” he wrote. “A case in which everyone sees us defending speech they like or vindicating the rights of a speaker they empathize with.”
The A.C.L.U. has done more advocacy for the ongoing student protests than its counterparts at FIRE. The Southern California branch of the organization sent an open letter to the chancellor of U.C.L.A. to denounce “efforts to suppress the peaceful right to free expression and dissent”; in response to a crackdown at Emory University, which included the violent arrest of an economics professor, the A.C.L.U. of Georgia issued a statement invoking the history of Atlanta as a “place where citizens could freely exercise their right to protest.” According to Ben Wizner, the director of the A.C.L.U.’s Speech, Privacy, and Technology Project, most of the organization’s interventions in the recent campus controversies have addressed instances in which there was no clear violation of First Amendment rights. These are cases—such as the University of Southern California’s decision to cancel a commencement address by a Muslim student, on account of unspecified safety concerns—in which the A.C.L.U. saw a need to intervene for the cause of free expression.
Wizner, like Creeley, believes that any commitment to free speech must remain viewpoint-neutral. But he also said that defenders of free speech should have priorities. “The reason why I come to the First Amendment is a distrust of government power,” he told me. “The most obvious abuse of government power is disproportionate use of force on peaceful protesters. So you have to lead with that in moments like these.”
The A.C.L.U. does not have an unrestrained, anarchic vision of the First Amendment. Wizner mentioned a case that the A.C.L.U. had brought against Clearview, a company that was building a biometric tracking tool with facial-recognition technology. The A.C.L.U. argued that Clearview was violating the privacy rights of millions of people who had not consented to having their faceprints recorded. Clearview maintained that its activities should be protected by the First Amendment, because it was taking publicly available photographs and then expressing an opinion about who the person in the images might be. The A.C.L.U. decided that the privacy concerns were far more important than Clearview’s vision of free speech and rejected what they saw as an overly expansive interpretation of the First Amendment. “What you really need to have is a theory of what the First Amendment is for,” Wizner said, “not it being the biggest thing it can be.”
The A.C.L.U. and FIRE may have a complex set of responsibilities, but the matter is simpler for the rest of us who consider ourselves free-speech advocates. We are unencumbered by procedural questions, and can simply look to protect every nonviolent act of dissent from government interference. Civil disobedience, which includes both the occupation of a campus building to call for a ceasefire and the breaking of COVID lockdowns to hold an anti-vaccine rally in a public square, needn’t be discussed only through the lens of the First Amendment. We can also make a moral appeal, pointing to historical events, from the Boston Tea Party under British rule to the lunch-counter sit-ins throughout the South during the civil-rights movement. What I am proposing is not novel, simply a disentangling of some ideas that I believe have been caught up in years of fruitless debate: a free-speech radicalism that grounds itself in widely held beliefs about American liberty and tries to build a broad moral consensus around the universal right to dissent and the importance of civil disobedience—even the type that might get someone thrown in jail.
Dissent involves genuine confrontation, which is why, although social-media posts may spread quickly and even get people into the streets, they should be seen for what they are: a precursor to the real thing. Social media has undeniably become the public square, but those platforms have actually served to dull dissent and turn legitimate protest into an individualistic meme war in which people pick a side and add to a junk pile of online ephemera. Speech is an act that occupies physical spaces, and, in doing so, forces people to look up from their phones and respond rather than simply scroll past it. I do not believe there is much potential for political change in purely online dissent, and it appears that today’s young people, who protested en masse in 2020, are coming to a similar conclusion. Democracy requires a healthy form of dissent, and nothing is more innervating than standing with other people on a sidewalk or on a campus quad or in a public park. Real communities and political possibilities are shaped much more quickly in those spaces, and the free-speech advocacy that I am proposing should always remind its adherents of that. The encampments sprouting up on campuses around the country—and the counter-protests that sometimes accompany them—suggest that much of the public understands this. A modern free-speech movement should, perhaps counterintuitively, direct its focus away from the Internet and, instead, actively encourage dissenters to take their messages to the streets.
Sticking to radical free-speech principles requires discipline, which is something I have not always fully understood. In the past, I was much more skeptical about complaints regarding students shouting down conservative speakers at college functions—I believed that those students were exercising their own First Amendment rights. But the past few years have convinced me that the majority of Americans see a censorious glint in the eyes of the shouters, even when they agree with the shouters politically. I believe those same people can be persuaded to tolerate disruptive, nonviolent protests, but that their sympathies are being swayed by public deplatformings.
These principles also entail disengaging from the construction of safe spaces, the forbidding of certain words, and the prosecution of hate speech—practices that have offered little in the way of real protection but provided a good deal of reactionary fodder. This means that free-speech radicals need to reject the premise that a certain set of words should be set aside as “hate” and prosecuted as crimes. Words are not violence.
The arguments that progressives have made about safety in order to silence speakers with objectionable views have lately been turned back around on them. This might seem like justice to some, but it only produces an endless volley of silly accusations: everyone is a bigot; everyone is a hypocrite; nobody understands the First Amendment; you are always censoring me and vice versa. Young people will continue to engage in legal, peaceful protest and civil disobedience. And, as their protests escalate, even if they do so peacefully, they will meet condemnation and repression from both sides of the aisle. The twenty-tens saw more worldwide street protests than any decade in recorded history. The twenty-twenties have seen more of the same. Does anyone think that we currently have the moral or rhetorical language to address what is happening not only in this country but on campuses and in city squares around the world? The First Amendment is not enough. ♦
