10 Things ‘The New Yorker’ Gets Wrong About Free Speech (Part 2)

The August 10, 2015 issue of The New Yorker contains an article by Kelefa Sanneh, “The Hell You Say,” that purports to examine “the current free-speech debate.” Unfortunately, the article contains a number of incorrect assertions and flawed arguments—we’ve identified 10—that require response. The first five are covered in Tuesday’s blog post. Today, we’ll conclude with the last five.

6. “Speech nuts, like gun nuts, have amassed plenty of arguments, but they—we—are driven, too, by a shared sensibility that can seem irrational by European standards.”

If “speech nuts” like those of us at FIRE have “amassed plenty of arguments,” it would have been useful for Sanneh to have explained and engaged those arguments instead of waving them away with a dismissive, condescending label.

Sanneh’s casual equation of words and weaponry demonstrates a misunderstanding of the radical power of free speech. One of the transformative qualities of freedom of expression is that it trusts and empowers human beings to settle our differences—our most deeply felt differences, reaching the heart of who we believe ourselves to be—with reasoned debate instead of violence. Human history, largely a record of unceasing carnage, underscores just how hopeful, beautiful, and worthy of protection the concept of free speech therefore is. An idea, no matter how offensive or hurtful, is not a bullet. Sanneh’s breezy parallel between the First Amendment and the Second Amendment blurs this fundamental distinction.

Sanneh also seems to suggest that “European standards” of freedom of expression, which are far less robust and speech-protective than our own, may be more desirable than our “irrational” American notions. It’s increasingly fashionable in certain quarters to criticize the First Amendment and hail restrictive European speech laws, as FIRE President and CEO Greg Lukianoff has pointed out. But proponents of European-style speech codes fail to acknowledge that prohibiting hateful speech by law does not effectively combat hate itself. For example, as FIRE’s Robert Shibley wrote for USA Today:

In France, for instance, Holocaust denial has long been illegal, and just this year the country arrested more than 70 people for praising the Charlie Hebdo terrorist attack. France has put real teeth into laws that punish offensive speech.

Yet according to the Anti-Defamation League, 37% of the French harbor anti-Semitic opinions. In the U.S. — which, thanks to the First Amendment, has never banned Holocaust denial or hateful speech — that number is 9%, among the lowest in the world. While this comparison can't capture all the differences between the two nations, it strongly suggests that punishing expression is no real cure for bigotry, and refusing to punish hateful speech does not lead inevitably to its spread.

Glenn Greenwald has reached similar conclusions, writing for Salon:

For as long as I’ll live, I’ll never understand how people want to vest in the Government the power to criminalize particular viewpoints it dislikes, will never understand the view that it’s better to try to suppress adverse beliefs than to air them, and will especially never understand people’s failure to realize that endorsing this power will, one day, very likely result in their own views being criminalized when their political enemies (rather than allies) are empowered.  Who would ever want to empower officious technocrats to issue warnings along the lines of:  be forewarned:  if you express certain political views, you may be committing a crime; guide and restrict yourself accordingly?  I obviously devote a substantial amount of my time and energy to critiquing the actions of the U.S. Government, but the robust free speech protection guaranteed by the First Amendment and largely protected by American courts continues to be one of the best features of American political culture.

Predictably, both in Europe and around the globe, restrictions on “hateful” or “blasphemous” speech are consistently used to punish political and religious dissidents and minorities—precisely the types of speakers that the First Amendment protects. As attorney and writer Ken White has noted, “anti-blasphemy laws are most often used as a tool of systematic abuse of religious minorities and other powerless and despised groups.” After closely surveying the impact of anti-blasphemy laws globally for two years, White concluded that commentators who suggest that “we Americans cling too tightly to our concept of free speech, and that we should be open to alternative views” ignore the actual impact of those alternatives.

For more reaction to Sanneh’s characterization of free speech advocates as “speech nuts,” check out Reason and The Wall Street Journal.

—Will Creeley

7. “But there are plenty of exceptions already, and taken together they form a rough portrait of what we value and what we don’t.”

This suggestion that new exceptions to First Amendment protection are acceptable because several already exist is not new.

For example, in his essay, Sanneh cites Stanley Fish, professor and author of There's No Such Thing As Free Speech ... And It's a Good Thing Too. In a panel on free speech at the National Constitution Center last year (in which FIRE President Greg Lukianoff also participated), Fish argued that he’d like to see speech subjected to a balancing test to determine whether more harm will come from the speech itself or from censorship of the speech. In other words, all controversial speech should be assessed on a case-by-case basis in order to determine if it should be prohibited. This is not only wholly impractical, but also a considerable departure from a core principle of the First Amendment—namely, the notion that ideas should be protected from the majoritarian impulse to silence dissent. But Fish believes that raw political power wins the day. During the panel, author and gay rights advocate Jonathan Rauch explained how free speech had been crucial to the advance of gay rights; in reply, Fish dismissed Rauch’s point, exclaiming that “[i]deas never won anything.”

For decades, though, the Supreme Court has continually refused to create new categories of unprotected speech, even narrowing the scope of the traditional categories—and with good reason. Taken together, the strict limits of what speech the government can punish demonstrate that in the United States, we value unfettered debate and open expression in the vast majority of circumstances. True threats, incitement, defamation, obscenity, and child pornography all have precise legal definitions, and the “fighting words” doctrine has been narrowed, arguably, to almost nothing. At the same time, the Supreme Court has made perfectly clear that offensiveness alone is insufficient justification for censoring or punishing the expression of an idea.

That is not to say that we don’t value the feelings of those who encounter hurtful speech, though. To the contrary, free speech advocates continually urge people to counter speech they don’t like with their own messages. Debate and persuasion, we think, are more effective tools to curtail any future harm than censorship—a superficial and temporary solution. As Jonathan Rauch wrote in The Washington Post last year, “[I]n a climate of free intellectual exchange hateful and bigoted ideas are refuted and discredited, not merely suppressed.”

These should be the guiding principles when it comes to applying First Amendment jurisprudence to new variations of old debates over the limits of free speech. If, instead, we continually expand unprotected categories to include speech that might cause a similar emotional impact but not the same concrete harms, freedom of speech will soon exist only superficially, and only for the politically powerful.

8. “[New York University Professor Jeremy] Waldron would be more persuasive if he had more to say about newer forms of hate speech, which tend to be more personal—and possibly more damaging.”

It is not clear why “newer forms of hate speech” would be “more damaging” than the hate speech of yore. Are we to believe that people simply weren’t as hateful—with respect to their words, anyway—in eras when minorities were legally, socially, politically, and economically regarded as second-class citizens? Were people more demure in their homophobia pre-Lawrence v. Texas (2003) than they are post-Obergefell v. Hodges (2015)? Doubtful. Or, in the alternative, are we to craft our laws around the idea that human beings are more emotionally fragile than they used to be? The notion that words have a more crippling impact on people now than ever before is implausible.

Then there’s the idea that today’s hate speech is more damaging because it’s somehow more personal, and perhaps due to the immediacy and scale of the Internet. Sanneh focuses particularly on the impact of online harassment. For example, he notes that “an undergraduate who protests at her local bar can find herself vilified around the world, achieving the sort of Internet infamy that will eventually fade but never entirely dissipate.”

Sanneh seems to suggest that incidents like this are examples of “newer forms of hate speech.” But he is conflating several legal notions: “hate speech,” which is generally protected by the First Amendment, and harassment and defamation, which, properly defined, are not.

“Hate speech” has no legal definition and no universally agreed-upon boundaries. Usually, the phrase is used to describe racist, sexist, or discriminatory speech based on membership in a particular group. But Sanneh is describing a situation where the speech in question focused on an individual’s actions, and potentially on statements directed at that individual. This sort of personal attack may constitute defamation or harassment. And if the speech in question accords with the law’s precise definitions of defamation or harassment, it can be punished consistent with the First Amendment, whether it is communicated online or in the “real world.”

9. “Free-speech advocates typically claim that the value of unfettered expression outweighs any harm it might cause, offering assurances that any such harm will be minimal. But what makes them so sure? … Some kinds of free speech really can be harmful, and people who want to defend it anyway should be willing to say so.”

Free speech advocates do acknowledge that protected speech can hurt feelings. Sometimes, that’s the point. FIRE frequently quotes the Supreme Court’s decision in Terminiello v. Chicago (1949) for the idea that expression is often crafted to have a significant emotional impact:

Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

In his 2012 New York Times review of Jeremy Waldron’s book The Harm in Hate Speech, which Sanneh discusses, Stanford Law School professor and former federal appellate judge Michael W. McConnell thoroughly acknowledges the damage that speech can do:

Contrary to Waldron’s apparent assumption, few people in the United States doubt that hate speech inflicts real harm on vulnerable minorities, any more than they doubt that lies about political candidates injure our democratic process; that vicious protests at the funerals of fallen soldiers inflict severe emotional injury on their families; that persistent use of extremely violent video games by adolescents aggravates antisocial behavior; that unlimited corporate and labor union contributions to candidates add to the appearance of political corruption; that public profanity degrades our culture; that raucous anti-abortion protests disturb patients seeking to end their pregnancies; or that the publication of state secrets undermines national security.

Nevertheless, as McConnell explains, “This speech is all constitutionally protected — not because we doubt the speech inflicts harm, but because we fear the censorship more.”

It is impossible and ultimately counterproductive to regulate speech based on subjective emotional harm. To do so is to constrain discourse to allow only speech that would be acceptable to the most sensitive person who might hear—and thus to effectively prohibit core political speech, such as rigorous debates on matters of public concern where everyone feels strongly and emotions run high. Subjective limits based on emotional harm would render art, literature, science, religion, comedy, satire, and much else out of bounds, as well. Moreover, punishing speakers according to a constantly changing and unknowable standard is incompatible with core principles of due process, which require clear notice of the boundaries of prohibited conduct.

In his review, McConnell catalogues examples in Sweden, Belgium, France, and Poland where anti-hate speech laws have been used by the politically powerful to silence minority or dissenting viewpoints. He writes:

[B]ans on speech touching on issues of public concern — as most hate speech does — can be abused for political ends. Waldron asks his readers to imagine the platonic ideal of hate speech laws, but in actual operation these laws have a terrible track record of being used by politically powerful factions to suppress speech that criticizes them. It is hard to find a case anywhere in the world where speech in support of dominant ideologies is punished for the protection of the weak.

The Supreme Court has routinely upheld protections for so-called “hate speech.” In Snyder v. Phelps (2011), the Court declared the speech used during the Westboro Baptist Church’s military funeral protests “disgraceful and repugnant,” but it ruled that the speech was nonetheless protected. Writing the Court’s opinion, Chief Justice Roberts reasoned:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Although free speech advocates like FIRE disapprove of restrictions on speech based only on the emotional harm it might cause, the narrowly defined categories of speech that are unprotected by the First Amendment encompass those relatively rare situations in which speech is harmful in a concrete or physical way. Prohibiting true threats, for example—serious communications of an intent to commit unlawful violence—does not endanger discussions on controversial topics the way that prohibiting hurtful language does.

Free speech advocates have already answered Sanneh’s question about how we can be so sure hate speech doesn’t cause some kind of harm. In fact, we know it sometimes does. But with the First Amendment, we can fight back—answering speech that harms with speech of our own.

Alex Morey

10. “‘Liberals are supposed to believe in diversity, which should include diversity of thought and belief,’ [Kirsten Powers] writes. This is a rather paradoxical formulation. (Is it possible to believe in diversity of belief?)”  

At FIRE, believing in diversity of belief is so fundamental to our mission (and the diversity of beliefs among our staff reflects this) that it’s difficult for me to figure out exactly what is so paradoxical about this idea. Is Sanneh suggesting that it is only natural for each individual to hope that everyone else agrees with him? To be sure, most of us lament a law or two (or ten) that are based on ideas we disagree with. But one would have to be delusional to think not only that all of his ideas are absolutely right but that he has nothing to gain from hearing different ideas. No nuance could be added to his position; no additional considerations have escaped his notice. Any reasonable person would concede that he could learn something from someone who disagrees with him on some topic and would reject the idea that the world is better without diversity of thought.

Alternatively, is Sanneh suggesting that people are incapable of truly understanding and appreciating different viewpoints? I would argue to the contrary—that thoughtful people appreciate opposing arguments on innumerable topics that involve nuanced questions about the very complicated world we live in. Plenty of people are undecided, for example, on issues like abortion, marijuana legalization, gun regulation, and campaign finance reform precisely because they see the validity of opposing arguments. Such people should especially value diversity of belief, as it’s likely that hearing others will help them solidify their own stance.

With all this in mind, I’m struggling to see what Sanneh finds difficult or implausible about free speech advocates believing in diversity of belief and wanting to foster it. Forming an opinion about a topic does not require one to dismiss all other ideas as objectively incorrect and useless.