Does free speech assume words are harmless? Part 7 of answers to bad arguments against free speech from Nadine Strossen and Greg Lukianoff

In May 2021, I published a list of “Answers to 12 Bad Anti-Free Speech Arguments” with our friends over at Areo. The great Nadine Strossen — former president of the ACLU from 1991 to 2008, and one of the foremost experts on freedom of speech alive today — saw the series and offered to provide her own answers to some important misconceptions about freedom of speech. My answers, when applicable, appear below hers.

Earlier in the series:

• Part 1: Free speech does not equal violence
• Part 2: Free speech is for everyone
• Part 3: Hate speech laws backfire
• Part 4: Free speech is bigger than the First Amendment
• Part 5: You can shout ‘fire’ in a burning theater
• Part 6: Is free speech outdated?
• Part 7: Does free speech assume words are harmless?
• Part 8: Is free speech just a conservative talking point?
• Part 9: Free speech fosters cultural diversity
• Part 10: Why 'civility' should not trump free expression
• Part 11: ‘New’ justifications for censorship are never really new
• Part 12: Free speech isn’t free with a carveout for blasphemy
• Part 13: Does free speech lead inevitably to truth?
• Part 14: Shouting down speakers is mob censorship

Assertion: Free speech rests on the faulty notion that words are harmless.

Nadine Strossen: To the contrary, speech is protected precisely because of its powerful potential to affect hearts, minds, and actions; that power may contribute to either good or harm. Let me cite a vivid example from recent U.S. history: The virulently racist “Unite the Right” ralliers’ chants in Charlottesville in 2017. This expression no doubt caused at least some observers to adopt or harden racist attitudes, and to engage in racially discriminatory actions, including violence. Equally undoubtedly, it caused other observers to repudiate racism and to engage in anti-racist activism.

Experience also demonstrates that censorship is only a superficial “quick fix” for the actual problems it allegedly addresses.

U.S. law already permits the government to punish speech that directly, imminently causes certain serious harm — consistent with what is often called the “emergency test.” So the pertinent question is whether the government should be granted more latitude to punish speech that doesn’t pose an emergency — when it has only an indirect, attenuated connection to potential future harm. To be sure, such speech may well contribute to harm. However, to justify expanding government power to impose non-emergency speech restrictions, we would logically have to examine the following additional factors about such additional speech restrictions:

1. Would they actually, materially reduce speech’s harmful potential?
2. Or might they instead be counter-productive — for example, by increasing attention to and sympathy for the speech?
3. Are there non-censorial alternative measures, which could be at least as effective in reducing the speech’s harmful potential? For example, education?

Experience throughout history and around the world demonstrates that government discretion to punish speech because of its indirect harmful potential constitutes a license to punish views and speakers that the government disfavors. Prior to the Supreme Court’s adoption of the speech-protective emergency principle in the second half of the twentieth century, this power was used to suppress the speech of crusaders for various causes that contemporaries viewed as dangerous, including: abolition, women’s suffrage, opposition to wars and the draft, labor unions, Communism, socialism, civil rights, reproductive freedom, and LGBTQ rights.

Experience also demonstrates that censorship is only a superficial “quick fix” for the actual problems it allegedly addresses. Meaningful approaches require addressing underlying attitudes and actual actions. For example, far more effective than outlawing “hate speech” is educating people to reject discriminatory ideas and punishing discriminatory conduct.

Greg Lukianoff: If free speech was not powerful, there would be no need either to protect it OR to ban it. It’s not surprising that free speech can be harsh, since it’s meant as a replacement for actual violence! 

Historically, freedom of speech has been justified as part of a system for resolving disputes without resort to actual violence. Acceptance of freedom of speech is a way to live with genuine conflict among points of view (which has always existed) without resorting to coercive force.

I’ve made this point so many times in my career, in so many different ways, that someone made a graphic about the way I once put it on a TV show.

It’s not surprising that free speech in a democracy can be very heated, when that protection covers people’s most sincerely held religious beliefs and their opinions about matters of life and death.

Iona reminded me how I put this in my first book:

The idea that we should campaign against hurtful speech among adults arises from a failure to understand that free speech is our chosen method of resolving disagreements, using words rather than weapons. Open debate is our enlightened means of determining nothing less than how we order our society, what is true and what is false, what wars we should fight, what policies we should pass, whom we should put behind bars for the rest of their lives, and who gets to control our government. This is a deadly serious business.

Being a citizen in a democratic republic is supposed to be challenging; it’s supposed to ask something of its citizens. It requires a certain minimal toughness — and commitment to self-governing — to become informed about difficult issues and to argue, organize, and vote accordingly. As the Supreme Court observed in 1949, in Terminiello v. Chicago, speech “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.”

The only model that asks nothing of its citizens in terms of learning, autonomy, and decision-making is the authoritarian one. By arguing that freedom from speech is often more important than freedom of speech, advocates unwittingly embrace the nineteenth-century (anti-)speech justification for czarist power: The idea that the Russian peasant has the best kind of freedom, the freedom from the burden of freedom itself (because it surely is a burden).

See, for example, “Dangerous Ideas: A Brief History of Censorship in the West, from the Ancients to Fake News,” by Eric Berkowitz.